Historical Overview of Natural Law
Longevity and Core Concept: Natural law has been discussed for over 2,000 years, demonstrating continuity. The fundamental plea asserts higher ideals and obligations that transcend positive state laws, especially when those laws are immoral or unjust.
Early Thinkers and Roman Influence
Plato (5th Century BCE):
Introduced the idea of absolute values, such as abstract justice.
Laws of the state are seen as attempts to emulate these higher, abstract values.
Distinction between human justice and a higher, natural/divine justice.
Aristotle:
Postulated that humans have certain "ends" (\text{telos}) from which what is "good" for them can be derived.
Defined political justice as partly natural and partly legal (positively established by human legislators).
Natural justice: "that which everywhere has the same force and does not exist like people thinking this or that," implying universality and unchangeability.
Legal justice: specific, positively laid down rules (e.g., prisoner's ransom).
Stoicism (Zeno of Citium, Marcus Aurelius):
Philosophy arising in Greece and prominent in Rome (e.g., Emperor Marcus Aurelius in the 2nd century CE).
Nature, representing the order of things, becomes associated with human reason.
Natural law is unchanging, unlike human laws which can vary through history or regime changes.
Individuals can access and interpret natural law through their own reason, without external intermediaries.
Cicero:
One of the first to clearly articulate that positive laws conflicting with natural law are invalid and should not be applied.
Represented the height of the Roman Republic's legal thought.
Augustine of Hippo (Later Saint Augustine):
Lived at the end of the Western Roman Empire, after Christianity became the state religion.
Focused on the relationship between state power and justice.
Famously stated: "\text{Civitates quid sunt sine justitia nisi magna latrocinia?}" (What are states without justice but robber bands enlarged?).
Argued that states must issue laws in line with abstract justice and natural law; without justice, a state is merely a large group of criminals.
Medieval Synthesis: Thomas Aquinas
Context: Wrote during the Middle Ages, a Dominican friar and theologian.
Four Types of Law: Divided law into four categories:
Eternal Law: God's rational governance of the universe.
Divine Law: Revealed through scripture.
Natural Law: The portion of eternal law discoverable by human reason. It is the foundation for human laws.
Human Law: Positive laws created by human legislators.
Deriving Natural Law: Natural law is accessible through human reason, reflecting divine reason. It grounds human laws by establishing "basic goods" that should be respected.
Basic Goods (Foundation of Natural Law):
Life: Do not kill.
Family: Respect parents, procreation.
Progression/Society: Avoid deviant behaviors, live in community.Truth: Respect contracts, oaths.
Practical Reason: From natural law, principles of practical reason allow us to judge human conduct and the justice of positive law.
Intuitive Understanding of Good: We intuitively know what constitutes good, including life, knowledge, procreation (\text{population}), society, and reasonable conduct. These lead to rules like "don't kill," "don't lie."
Universality of Natural Law: Since humans are rational, natural law is accessible through reason and is the same everywhere. This distinguishes it from \text{Jus Gentium} (law of nations), which can vary.
Obedience to Unjust Laws: If a state law varies from natural law, the state forfeits its right to be obeyed. However, Aquinas advised obedience to avoid "scandal or civil disorder," suggesting one should often suffer unjust rule without rebellion, awaiting divine justice.
Examples of Rules Derived from Natural Law (Aquinas):
Preservation of Life: Prohibitions against murder.
Procreation of Family: Marriage, child-rearing.
Living in Society: Promoting justice and peace.
Pursuit of Truth: Encouraging education and honesty.
Avoidance of Harm: Condemning theft and violence.
Worship of God: Encouraging religious observance (reflecting his theological perspective).
Practice of Virtue: Promoting moral behavior.
Modifiability: Natural law can be added to (new principles), but its core elements cannot be subtracted from.
Influence: Aquinas was highly influential, especially on the Second Scholastics.
Early Modern Thinkers: Secularization and Social Contract
Second Scholastics (Francisco de Vitoria, Francisco Suárez - 16th-17th Centuries):
Built upon Aquinas's theories.
Initiated a gradual secularization of natural law thinking, despite their own theological backgrounds.
Hugo Grotius (17th Century):
A Protestant Dutch jurist, consolidated the shift away from a solely Christian-centric view of natural law.
Emphasized natural reason and human social nature.
Famous quote (from \text{Prolegomena}, Laws of War and Peace): "even if God did not exist, natural law would subsist because we can access it through natural reason."
Derived natural law not only from human reason but also from our nature as social animals geared towards community interest.
Examples of natural law rules (from text): abstaining from another's property, restoring another's property (and any gain from it), fulfilling promises, making good on loss incurred through one's fault, inflicting deserved penalties.
Associated natural law with \text{Jus Gentium} (international law).
Thomas Hobbes:
Focused more on the natural right of self-preservation in a "state of nature" (chaos).
Natural law for Hobbes is a general rule of reason that dictates seeking peace and agreeing to lay down natural rights to everything, forming a social contract and transferring power to a sovereign.
Present in his thought but not as central as self-preservation.
John Locke:
Also centered on natural rights, given by God and accessed through reason.
Function of social contract and the state: preserve citizens' natural rights, especially property (along with life).
Citizens have the right to withdraw support or rebel against governments that fail in this task.
Shifted focus from duties (natural law) to entitlements (natural rights).
Later Authors (Rousseau, Kant, Hume, Burke): Continued to explore the interplay between natural law and natural rights.
Contemporary Approaches to Natural Law
Lon Fuller's Procedural Natural Law
Type: Procedural natural law, focusing on the mechanics of law-making rather than substantive moral content.
Core Idea: Law is a tool to steer society, but collective efforts must adhere to procedural requirements. Natural law posits limits on how a legal system is organized.
Aim of Legal System: To achieve common social purposes and aspire to certain procedural standards.
The Morality of Law: Fuller's most important work, outlining conditions for a proper legal system.
Eight Ways to Fail to Make Law (Illustrating Flaws):
Absence of rules altogether.
Failure to publicize rules.
Abuse of retroactive legislation (punishing for past actions not then illegal).
Failure to make rules understandable (obscure legal language).
Making contradictory rules.
Rules requiring conduct beyond the power of subjects (impossible to follow).
Frequent changes of the law (lack of stability).
Incongruence between rules as announced and applied (difference between written law and enforcement).
Eight Desiderata for a Proper Legal System (Conditions for Functionality): These are the positive counterparts to the failures.
Generality: Laws apply to the generality of the population, not \text{ad personam}.
Promulgation: Publicly announced and known.
Non-retroactivity: Basic principle of most systems.
Clarity: Understandable to common citizens (a challenge for many democracies).
Non-contradiction: Laws should be a coherent system.
Possibility of Compliance: Rules must be possible for citizens to respect.
Constancy: Stability in the legal system, avoiding frequent changes.
Congruence between Rule and Official Action: Laws applied as written and intended.
Consequence of Failure: If a system fails substantially in respect to several or any one of these principles, "it could not be said that law existed in that community." It becomes merely an exercise of power, not a legal system aligned with natural law.
Example: Italian legal system's issues with clarity and non-contradiction due to frequent government changes and excessive legislation.
Critique: Its focus on procedural aspects means it doesn't guarantee the substantive justice of the laws issued by state authority.
John Finnis's Substantive Natural Law
Context: Australian legal philosopher, reinterprets Aquinas.
Type: Substantive natural law, interested in the moral content of law.
Critique of Positivism: Positivists offer a value-free description of law, lacking interest in morality or natural law. Finnis argues a theorist "cannot give a theoretical description and analysis of social facts unless he also participates in the work of evaluation."
Basis of Normative Conclusions: Nor based on observation of nature but on a "reflective grasp of what is self-evidently good for human beings."
Aim: "to assist the practical reflections of those concerned to act whether as judges, as a statement or as citizens," guiding actions in the legal system.
Moral Guidance: The act of positing law "can and should be guided by moral principles and rules" which are a matter of "objective reasonableness."
Three Interconnected Components:
Basic Principles/Goods: Indicate forms of human flourishing to be pursued.
Methodological Requirements of Practical Reasonableness: Distinguish sound from unsound practical thinking.
General Moral Standards: Including justice and natural rights.
Seven Basic Goods (Self-Evident Values for Human Well-being/Flourishing): We feel naturally inclined to pursue these goods.
Life: Self-preservation, avoiding injury, transmission of life (procreation, child-rearing). Echoes Hobbes and Aquinas.
Knowledge: Enjoying knowledge for its own sake (music, art, literature) and instrumental knowledge (e.g., poisonous mushrooms).
Play: Recreation and enjoyment for its own sake.
Aesthetic Experience: Enjoying beauty in art or nature for its own sake.
Sociability/Friendship: Interacting with others not for interest but shared human connection.
Practical Reasonableness: A special good (not hierarchically higher), enabling access to and understanding other goods (see below).
Religion: Broadly defined as the "human pursuit of ultimate meaning, transcendence and understanding of the cosmos and our place within it" (encompasses various religions and non-religious quests for meaning).
Practical Reasonableness:
Description: "being able to bring one's own intelligence to bear effectively on the problems of choosing one's actions and lifestyle and shaping one's own character." It introduces an "intelligent and reasonable order into one's own actions."
Special Role: Guides the pursuit of other goods, allowing for committed, reasonable choices. It helps optimize short life for the pursuit of these goods.
Eight Requirements of Practical Reasonableness (Making it Work):
A coherent plan of life.
No arbitrary preferences among human values: Pursue all goods coherently.
No arbitrary preferences among persons: Follow the golden rule.
Open-mindedness, detachment, and commitment to one's projects: Resilience in facing failures.
Actions to be reasonably efficient.
Respect for every basic value in every act: Coherence in actions.
Actions should advance the interest of one's community: Social aspect (echoes Aristotle).
Follow one's conscience: Individual moral judgment, not just group conformity.
Morality and Justice: The combination of the seven basic goods and eight requirements of practical reasonableness forms the principles of morality/natural law, leading to an understanding of justice and natural rights (e.g., prohibition of torture, lying, deprivation of procreative capacity).
\text{Spudaios} (The Mature Man): A person who, through experience and reasoning, gains insight into and acts upon natural law, exercising rational and ethical judgment according to basic rules. Embodies moral responsibility and acts with a balanced understanding of the common good.
Purpose of the State: To enable people to flourish according to natural law, coordinating individual and collective commitments in the pursuit of basic goods.
Role of Coercion/Sanctions: Supportive, protecting individuals from deviant behaviors, not central to the legal system.
Law Informed by Natural Law: Positive law receives its force from natural law.
Example (Prohibition of Murder):
Life is a basic good.
Practical reason dictates protecting all lives (respect for every basic value, follow conscience).
Positive criminal law prohibiting murder derives its force from natural law.
Critiques of Finnis/Natural Law Theory:
Whose reason counts?: Relies on the "mature man" (\text{spudaios}), but who defines this?
Controversial topics: How does natural law address issues like reproductive health or abortion when "self-evidence" is contested? What seems self-evident to Finnis (e.g., against abortion) may not be for others.
Cultural and gender biases: Is the notion of natural law Western/European-centric?
Bentham's critique revisited: Is natural law still "private opinion in disguise," even when framed around "self-evident goods" and "reason"? Self-evidence to whom?
Conclusion: Both positivism and natural law offer valuable ways to reason about law but have limitations, which will be explored by critical legal studies (e.g., feminist legal theory).