NATURAL LAW

Background to Natural Law Has been around since Greek civilization Has been around as far back as 533 AD At times its appeal is based on religious or supernatural doctrines. A more modern approach rests on political and legal ideology Respect for the natural law theory reduced during the 19th century but revived during the 20th century

What is Natural Law The question what is the law has provoked varied responses However, what remains common among the views is that there are objective moral principles which depend upon the nature of the universe and which can be discovered by reason. These principles constitute natural law. The rules governing correct human conduct are logically connected with immanent truths concerning human nature. It provides a rational foundation for moral judgment. Essentially it provides for a moral justification for existing and social, economic and legal systems. Natural lawyers accept that natural law principles do not always have the effect that they would like them to have but they argue that the principles remain true that even if they are ignored, misunderstood or abused in practice or defied in practical thinking. Natural lawyers think that what is the law is based upon a higher law dictated by reason and it is also what law ought to be However, an objection to the theory is that moral propositions cannot be derived from propositions of fact, whether an ought can be deduced from an is
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For example, a factual statement is water boils at 100 degree centigrade and that is verifiable. However, moral judgment such as euthanasia is mercy killing cannot be proved or that capital punishment is the right punishment for murder.

How do Natural law seeks to make connection between the Is & Ought Natural lawyers seek to overcome the challenge by showing that moral propositions can be deduced from factual statements when there is a general consensus as to moral truths. So, if it is a natural law for men to act in a particular way (which can be argued as deriving from observation), then he ought morally to act in this way. For example, it is natural for human beings to procreate (the is) and anything to the contrary for example, abortion and gay unions ought to be considered wrong. The positivists see this as confusing scientific laws with moral and legal ones. Some natural lawyers response would be that scientific laws which describe the manner it is laid down that things should behave, for example, the law of gravity presupposes a Creator who has subjected all things to laws. Therefore any scientific claim can be easily defeated since scientists have not yet accurately discovered what is ordained. Natural law thinking is that natural processes are tended towards pre-determined ends. Aristotle posits that man has its proper function which is discovered by reason and thought. In doing this, they fulfill their natural function. This can be achieved so long as it is not impeded. Aquinas posits the view that rational man can gain insight of Gods plan for the universe through revelation and conscious participation. Finnis also sees men as having ends which can be ascertained by reflecting on his nature and his needs.

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One way of looking at this is to ask who gives man its purpose. The answer to this can lead us to a deity however the question as to the existence of could be easily established. Attraction to Natural law One of the attractions to natural law however is that moral truths can be reached through reason. Also, rational beings have free will and with that being so, the law says that ought to be done but it does not necessarily what happened in practice. The introduction of free will though causes problems, for example, if someone has free will, how is that he is obligated to do something? Hence, either the person will act on his will or be subjected to act based on some superiors will. If it is the latter, the binding force of natural law would be deemed to have derived from the command of a superior and therefore it could be concluded that natural law is binding because it is willed by God. However, to define morality in accordance to Gods will is objectionable. Suarez and Grotius in the seventeenth century considered natural law as that willed by God because it is that which is rationally good. So, the question is asked, could be then that Grotius conclusions is that natural law would hold good even if there were no God. Hence, the superior could equally be that of human sovereign. How moral norms and values can be established? An argument is that propositions of natural law are self-evident. It this is so, doubt may be cast on the argument since statements that Slavery is wrong or it is wrong to kill may be self-evident to us but to others there was no problem accepting slavery as a morally justifiable institution. So the same way in which the concept of homicide is not clear (in that while all societies prohibit killing there is no general agreement on what killing should be outlawed or justified) is the same way that the concept of slavery is not clear as its definition mean one thing to some and another to others. However, in the twentieth century, attempts were made to respond to this seemingly problem. There was a view that while the ideal of justice is absolute, its application must vary with time, place and circumstance.
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Question is therefore asked can we construct objective norms and values? Hart has assisted in resolving the problem. He conceded that there is a minimum content of natural law. He assumes we have a commitment to survive and so can work out a set of principles to satisfy our needs to enhance our chances of survival. Is Hart deducing moral principles and legal norms from facts? While the minimum content will serve as a guide, prohibition on the use of violence, it may not be enough. John Finnis He denies that true classical natural law ever purported to derive ought from is. He concedes that early renaissance jurists have claimed to draw normative inferences from nature and so to confuse fact with value. He argues that this was not true of Aristotle and Aquinas and argued that Aquinas views were misunderstood Finnis exposition of natural law is an interpretation of Aquinas.

Have Natural lawyers denied the need for Positive Law Natural lawyers have not denied positive law. However, positive law should embody natural law. They recognize though that this may not always be so. Human sovereign having freewill can make unjust laws.

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