Vous êtes sur la page 1sur 7

Tutorial 3: Natural Law

1. Discuss the development of the concept of natural law over different time periods.
2. Explain the factors that caused the decline of natural law and its revival in the nineteenth
century.
3. Briefly explain the doctrine of natural law.
4. Explain the natural law concepts, provide relevant illustration and argument as expounded
by:
a. Aristotle
b. Stoics
c. Christianity
d. St. Thomas Aquinas
1. Ancient Period
Heraclitus (530 470 B.C.)
The concept of Natural Law was developed by Greek philosophers around 4th century
B.C. Heraclitus was the first Greek philosopher who pointed at the three main
characteristic features of Law of Nature namely, (i) destiny, (ii) order and (iii) reason. He
stated that nature is not a scattered heap of things but there is a definite relation between
the things and a definite order and rhythm of events. According to him, reason is one of
the essential elements of Natural Law.

Socrates (470 399 B.C.)


Socrates said that like Natural Physical Law there is a Natural or Moral Law. Human
Insight that a man has the capacity to distinguish between good and bad and is able to
appreciate the moral values. This human insight is the basis to judge the law. Socrates
did not deny the authority of the Positive Law. According to him, it was rather the appeal
of the insight to obey it, and perhaps that was why he preferred to drink poison in
obedience to law than to run away from the prison. He pleaded for the necessity of
Natural Law for security and stability of the country, which was one of the principal
needs of the age. His pupil Plato supported the same theory. But it is in Aristotle that we
find a proper and logical elaboration of the theory.

Aristotle (384 322 B.C.)


According to him, man is a part of nature in two ways; firstly, he is the part of the
creatures of the God, and secondly, he possesses insight and reason by which he can
shape his will. By his reason man can discover the eternal principle of justice. The mans
reason being the part of the nature, the law discovered by reason is called natural
justice. Positive Law should try to incorporate in itself the rules of Natural Law but it
should be obeyed even if it is devoid of the standard principle of Natural Law. The Law
should be reformed or amend rather than be broken. He argued that slaves must accept
their lot for slavery was a natural institution. Aristotle suggested that the ideals of
Natural Law have emanated from the human conscience and not from human mind and,
therefore, they are far more valuable than the Positive Law which is an outcome of the
human mind.

Natural Law in Roman System


The Romans did not confine their study of Natural Law merely to theoretical
discussions but carried it further to give it a practical shape by transforming their rigid
legal system into cosmopolitan living law. In this way Natural Law exercised a very
constructive influence on the Roman law through division of Roman Law into three
distinct divisions namely Jus civile, Jus gentium and Jus naturale. Civil law called
Jus civile was applicable only to Roman citizens and the law which governed Roman
citizens as well as the foreigners was known as Jus gentium. It consisted of the
universal legal principles which conformed to Natural Law or Law of Reason. Later, both
these were merged to be known as Jus naturale as Roman citizenship was extended to
everyone except a few categories of persons. Roman lawyers did not bother themselves
with the problem of conflict between Positive Law and Natural Law. Though there
was a general feeling that natural law being based on reason and conscience was superior
to Positive Law and therefore, in case of a conflict between the two, the latter should be
disregarded.

Medieval Period
Catholic philosophers and theologicians of the Middle Ages gave a new theory of
Natural Law. Though they too gave it theological basis, they departed from the
orthodoxy of early Christian Fathers. Their views are more logical and systematic.
Thomas Acquinas views may be taken as representative of the new theory. His views
about society are similar to that of Aristotle. Social organization and state are natural
phenomena. He defined law as an ordinance of reason for the common good made by
him who has the care of the community and promulgated. St. Thomas Aquinas gave a
fourfold classification of laws, namely, (1) Law of God or external law, (2) Natural Law
which is revealed through reason, (3) Divine Law or the Law of Scriptures, (4) Human
Laws which we now called Positive law. Natural Law is a part of divine law. It is that
part which reveals itself in natural reason. Like his predecessors, St. Aquinas agreed that
Natural Law emanates from reason and is applied by human beings to govern their
affairs and relations. This Human Law or Positive Law, therefore, must remain within
the limits of that of which it is a part. It means that Positive Law must conform to the
Law of the Scriptures. Positive Law is valid only to the extent to which it is compatible
with Natural Law and thus in conformity with Eternal Law. He regarded Church as
the authority to interpret Divine Law. Therefore, it has the authority to give verdict upon
the goodness of Positive Law also. Thomas justified possession of individual property
which was considered sinful by the early Christian Fathers.

The Period of Renaissance


The period of renaissance in the history of development of Natural Law may also be
called the modern classical era which is marked by rationalism and emergence of new
ideas in different fields of knowledge.

2. The Natural Law theory received a setback in the wake of 19th century pragmatism. The
profounder of analytical positivism, notably, Bentham and Austin rejected Natural Law
on the ground that it was ambiguous and misleading. The doctrines propagated by Austin
and Bentham completely divorced morality from law. In the 19th century, the popularity
of Natural Law theories suffered a decline. The Natural Law theories reflected, more or
less, the great social economic and political changes which had taken place in Europe.
Reason or rationalism was the spirit of the 18th century thought. A reaction against this
abstract thought was overdue. The problems created by the new changes and
individualism gave way to a collectivist outlook. Modern skepticism preached that there
are no absolute and unchangeable principles. Priori methods of the natural law
philosophers were unacceptable in the emerging age of science. The historical researches
concluded that social contract was a myth. All these developments shattered the very
foundation of the Natural Law theory in 19th Century. The historical and analytical
approaches to the study of law were more realistic and attracted jurists. They heralded a
new era in the field of legal thought. In this changed climate of thought it became
difficult for the Natural Law theories to survive. Therefore, though solitary voices
asserting the superiority of Natural Law are still heard, the 19th century was, in general,
hostile to the Natural Law theories.

Towards the end of the 19th century, a revival of the Natural Law theories took place. It
was due to many reasons: First, a reaction against 19th century legal theories which had
exaggerated the importance of positive law was due and theories which over-
emphasized positivism failed to satisfy the aspirations of the people because of their
refusal to accept morality and reason as element of law; Second, it was realized that
abstract thinking or a priori assumptions were not completely futile; Third, the impact of
materialism on the society and the changed socio-political conditions compelled the 20th
century legal thinkers to look for some value-oriented ideology which could prevent
general moral degradation of the people. The World War 1 further shattered the western
society and there was a search for a value-conscious legal system. All these factors
cumulatively led to revival of Natural Law theory in its modified form different from the
earlier one. The main exponents of the new revived Natural Law were Rudolf Stammler,
Prof. Rawls, Kohler and others.

3. Natural Law is a broad and often misapplied term tossed around various schools of
philosophy, science, history, theology, and law. Indeed, Immanuel Kant reminded us,
'What is law?' may be said to be about as embarrassing to the jurist as the well-know
question What is Truth? is to the logician.

Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling
authority, and having binding legal force. That which must be obeyed and followed by
citizens subject to sanctions or legal consequences is a law (Blacks Law Dictionary,
Sixth Edition, p. 884). Jurisprudence is the philosophy of law and how the law developed.

Natural Law is a moral theory of jurisprudence, which maintains that law should be based
on morality and ethics. Natural Law holds that the law is based on whats correct.
Natural Law is discovered by humans through the use of reason and choosing between
good and evil. Therefore, Natural Law finds its power in discovering certain universal
standards in morality and ethics.
4. A) In Plato's Dialogues, he believed it was possible for man to attain knowledge of the
external truths, for example, 'goodness', justice', 'courage'. For Plato the forms of
'goodness', 'virtue', 'honesty were eternal and immutable. Aristotle did not subscribe to
Plato's theory of forms. Nonetheless, the element in his thinking had contributed a further
aspect to what was to become part of natural law doctrine.

Aristotle was concerned with the world as he saw it existing around him. He was a
zoologist, in particular a marine zoologist, with an acute observation of the minutest
details of organisms observable by the human eye.From his studies of the natural world
he became conscious of the fact that natural phenomena were in a state of perpetual
change - the child growing into an adult; the seed growing into a plant. There was always
progress.

Throughout the living world, Aristotle saw that, in the birth and growth of animals and
plants, the earlier stages always lead up to a final development. The process is constant.
There is always potential for further change: in everything there is a potentiality striving
to reach a further stage of actuality. However, modern scientific and technological
innovations have redefined many aspects of Plato and Aristotle natural law principles.
They are challenging almost all aspects of traditional, cultural and religious practices and
recognized social norms. Thus, for Aristotle the universe is dynamic, always engaged in
the process of transformation.

The philosophy that everything that exists has a predetermined end is termed teleology
(from the Greek teleos, end, and logos, rule or principle). Aristotle's teleology extended
beyond the individual phenomena of the natural world to the activities of creatures within
it, including human beings. For Aristotle, the highest form of human society lay in the
Greek city state (a polis). It was the polis that provided the society in which man could
achieve his culminating fulfillment.

Thus from the start of organised human society, from its most primitive forms, through
the various stages of agricultural existence to the building of cities, and the creating of
political societies such as that at Athens, mankind was progressing towards that which
had been its end from the beginning. Aristotles observation can be seen in the growth of
villages and towns to become cities and megalopolis across the world with modern
amenities etc. Aristotle accepted that there is a natural and universal right and wrong,
apart from any human ordinance or convention.
B) The next development in the history of the natural law doctrine can be found in the
writings of the authors who form the Stoic school of philosophy. Stoicism held influence
from the lifetime of its founder Zeno (during the third century before Christ) down to
about the-fourth century AD. It was the prevailing philosophy during the greater part of
the Roman Republic and Empire.

The contribution of the Stoic school of philosophy may be represented by the writings of
Cicero, Seneca and the Emperor Marcus Aurelius. In Cicero's work On Duties the
following passages occur.
'Besides, the Stoics' ideal- is to live consistently with nature throughout our lives
we ought invariably to aim at morally right courses of action,
'Indeed this idea - that one must not injure anybody else for one's own profit - is not
only natural law, an international valid principle: The whole point and intention of
these statutes is that one citizen shall live safely with another."'

From these passages it can be seen that the Stoic school added flesh to the bones of
natural law. Tolerance, forgiveness, compassion, fortitude, uprightness, sincerity, honesty
- these were the qualities that the Stoics believed that natural law, required of men.

These were the qualities to which reason dictated that man should aspire in order that he
might live in accordance with what nature had ordained. The Stoic ideals and thinking
contributed to the evolution of the universality of the doctrine of natural law. Stoics saw
mankind as one brotherhood. They looked outside the city state, outside the Empire and
saw the whole of the human race as being bound and united by the brotherly love that the
precepts of natural law enjoined.

C) The parallels between the tenets of Stoicism and the teaching of Christ come readily to
mind. Stoicism taught that men should love one another, since this was in accord with
nature and thus was man's duty. Christianity taught -'Love one another', and it added 'and
if you do, there is a bonus - life everlasting.'

For the Christian the reward was Heaven, coupled with satisfaction of knowing that the
sinner (among whom no doubt were numbered one's enemies) would suffer the eternal
torments of Hell. The teaching of Christ provided a code of conduct, but not a
comprehensive theology. The creation of the latter was the accomplishment of the
Fathers of the early church, principally St Augustine, St Ambrose and St Gregory.
Having been born into the Roman world it was natural that these men should reflect in
their writings aspects of the philosophies of Greece and Rome that could be enlisted to
give intellectual support to the teachings of the new church.
The incorporation of natural law into Christian theology was accomplished at a later
period, but when St Augustine wrote 'If a law be unjust, it is no law at all'. This was
further demonstrated in Gratian's Decretum, a collection of texts dealing with canon law,
with a commentary designed to reconcile inconsistencies and contradictions that had
accumulated during the previous centuries. In the Decretum, natural law is treated as part
of the immutable law of God. It was natural law anterior in time, and superior, to man-
made law to the extent that man-made law ran counter to natural law, it was null and
void.

D) It was in the work of St Thomas Aquinas, principally in the Summa Theologica, that
the final and most complete synthesis of the classic doctrine of natural law and the
doctrine of the Christian church was achieved. The writings of Aristotle had been lost to
the western world from the fall of the Empire in the west and only became available to
western Scholars in the twelfth century.

It was the achievement of St Thomas to reconcile the philosophy in newly-discovered


writings with the doctrines of Christianity and to do so in such away as to strengthen
mightily the intellectual basis on which Christianity rested. St Thomas's chain of thinking
is this. God is the creator. The world, the universe, the cosmos is his creation. Everything,
physical and intellectual, stems from Him.

Matters that man can discover by the exercise of practical reason Aquinas terms the
eternal law. For Aquinas, natural law consists of participation by man in the law. To
discover how man's affairs should be regulated it is necessary, Aquinas said, to proceed,
by the exercise of human reason, from the first principles of natural law. The first
principles of natural law are immutable, eternal, and binding on all mankind. For
example, if we deduce from the principle that man should live at peace with his fellows,
the principle that debts should be repaid, we find that: This conclusion holds in the
majority of cases.

St Thomas's contribution was to provide a synthesis between the Judeo-Christian


understanding of law and justice, with its view of law as derived from revelation of God's
intention for the world, and the Greco-Roman view of law as being interdependent with
reason. St Thomas's integration of Aristotle's philosophy into the structures of Christian
theology gained official acceptance in 1270. His view of natural law has continued to
provide the foundation of the thinking of the Catholic Church until today.