Natural law

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Natural law (Latin: ius naturale, lex naturalis) is a philosophy asserting

that certain rights are inherent by virtue of human nature endowed by
nature; traditionally God or a transcendent source, and can be understood
universally through human reason. As determined by nature, the law of
nature is implied to be universal,[1] existing independently of the positive
law of a given state, political order, legislature or society at large.

Historically, natural law refers to the use of reason to analyze human

nature to deduce binding rules of moral behavior from nature's or God's
creation of reality and mankind. The concept of natural law was first
documented in ancient Greek philosophy, including Aristotle,[2] and was
referred to in Roman philosophy by Cicero. It was then alluded to in the
Bible, from which it was subsequently developed in the Middle Ages by
Catholic philosophers such as Albert the Great, and Thomas Aquinas. In
the Renaissance, notably the School of Salamanca further contributed.
During the Age of Enlightenment, modern era natural law theories were
further developed, combining inspiration from Roman law, and alongside
philosophies like social contract theory. It featured greatly in the works of Thomas Aquinas, a Catholic
Alberico Gentili, Francisco Surez, Richard Hooker, Thomas Hobbes, philosopher of the Middle Ages,
Hugo Grotius, Samuel von Pufendorf, Matthew Hale, John Locke, Francis revived and developed natural law
Hutcheson, Jean Jacques Burlamaqui, Jean Jacques Rousseau, Emmerich from ancient Greek philosophy.
de Vattel, Cesare Beccaria and Francesco Mario Pagano. It was used to
challenge the divine right of kings, and became an alternative justification
for the establishment of a social contract, positive law, and government and thus legal rights in the form of
classical republicanism. Conversely, the concept of natural rights is used by others to challenge the legitimacy
of all such establishments.

Contemporarily, the concept of natural law is closely related to the concept of natural rights. Indeed, many
philosophers, jurists and scholars use natural law synonymously with natural rights (Latin: ius naturale), or
natural justice.[3] while others distinguish between natural law and natural right.[1]

Declarationism, a legal philosophy that is considered to violate the Supremacy Clause and the Anti-
Establishment Clause of the United States Constitution, argues that the founding of the United States is based
on natural law. Because of the intersection between natural law and natural rights, natural law has been cited as
a component in the United States Declaration of Independence, and claimed by natural law proponents thus to
be incorporated into its constitution, as well as in the French Declaration of the Rights of Man and of the
Citizen (1789). (See: "Laws of Nature" First Paragraph Declaration of Independence[4])

Although natural law is often confused with common law, the two are distinct. Even though natural law
theories have exercised a profound influence on the development of English common law,[5] the latter is not
based on inherent rights, but is the legal tradition whereby certain rights or values are legally recognized by
virtue of already having judicial recognition or articulation.[6] Natural law is often contrasted with the human-
made laws (positive law) of a given state, political entity or society.[7] In legal theory, the interpretation of a
human-made law requires some reference to natural law. On this understanding of natural law, natural law can
be invoked to criticize judicial decisions about what the law says, but not to criticize the best interpretation of
the law itself.

Contents
1 History
 1.1 Plato
1.2 Aristotle
1.3 Stoic natural law
1.4 Cicero
1.5 Christianity
1.6 English jurisprudence
1.7 American jurisprudence
1.8 Hobbes
1.9 Cumberland's rebuttal of Hobbes
1.10 Liberal natural law
1.11 Islamic natural law
1.12 Brehon law
2 Catholic natural law jurisprudence
3 Contemporary jurisprudence
4 See also
5 Notes
6 References
7 External links

History
The use of natural law, in its various incarnations, has varied widely throughout history. There are a number of
theories of natural law, that differ from each other with respect to the role that morality plays in determining the
authority of legal norms. This article deals with its usages separately rather than attempt to unify them into a
single theory.

Plato

Although Plato did not have an explicit theory of natural law (he rarely used the phrase 'natural law' except in
Gorgias 484 and Timaeus 83e), his concept of nature, according to John Wild, contains some of the elements
found in many natural law theories.[8] According to Plato, we live in an orderly universe.[9] The basis of this
orderly universe or nature are the forms, most fundamentally the Form of the Good, which Plato describes as
"the brightest region of Being".[10] The Form of the Good is the cause of all things, and when it is seen it leads
a person to act wisely.[11] In the Symposium, the Good is closely identified with the Beautiful.[12] In the
Symposium, Plato describes how the experience of the Beautiful by Socrates enabled him to resist the
temptations of wealth and sex.[13] In the Republic, the ideal community is, "...a city which would be established
in accordance with nature."[14]

Aristotle

Greek philosophy emphasized the distinction between "nature" (physis, ) on the one hand and "law",
"custom", or "convention" (nomos, ) on the other. What the law commanded would be expected to vary
from place to place, but what was "by nature" should be the same everywhere. A "law of nature" would
therefore have the flavor more of a paradox than something that obviously existed.[1] Against the
conventionalism that the distinction between nature and custom could engender, Socrates and his philosophic
heirs, Plato and Aristotle, posited the existence of natural justice or natural right (dikaion physikon,
, Latin ius naturale). Of these, Aristotle is often said to be the father of natural law.[3]

Aristotle's association with natural law may be due to the interpretation given to his works by Thomas
Aquinas.[15] But whether Aquinas correctly read Aristotle is in dispute. According to some, Aquinas conflates
natural law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics (Book
IV of the Eudemian Ethics). According to this interpretation, Aquinas's influence was such as to affect a
number of early translations of these passages in an unfortunate manner, though more recent translations render

those more literally.[16] Aristotle notes that natural justice is a species of

those more literally.[16] Aristotle notes that natural justice is a species of
political justice, specifically the scheme of distributive and corrective justice
that would be established under the best political community; were this to take
the form of law, this could be called a natural law, though Aristotle does not
discuss this and suggests in the Politics that the best regime may not rule by
law at all.[17]

The best evidence of Aristotle's having thought there was a natural law comes
from the Rhetoric, where Aristotle notes that, aside from the "particular" laws
that each people has set up for itself, there is a "common" law that is according
to nature.[18] Specifically, he quotes Sophocles and Empedocles:

Universal law is the law of Nature. For there really is, as every one Plato (left) and Aristotle
to some extent divines, a natural justice and injustice that is (right), a detail of The School
of Athens, a fresco by Raphael.
binding on all men, even on those who have no association or
covenant with each other. It is this that Sophocles' Antigone clearly
means when she says that the burial of Polyneices was a just act in
spite of the prohibition: she means that it was just by nature:

"Not of to-day or yesterday it is,

But lives eternal: none can date its birth."

And so Empedocles, when he bids us kill no living creature, he is

saying that to do this is not just for some people, while unjust for
others:

"Nay, but, an all-embracing law, through the realms of the

sky
Unbroken it stretcheth, and over the earth's immensity."[19]

Some critics believe that the context of this remark suggests only that Aristotle advised that it could be
rhetorically advantageous to appeal to such a law, especially when the "particular" law of one's own city was
averse to the case being made, not that there actually was such a law;[3] Moreover, they claim that Aristotle
considered two of the three candidates for a universally valid, natural law provided in this passage to be
wrong.[1] Aristotle's paternity of natural law tradition is consequently disputed.

Stoic natural law

The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics.
The rise of natural law as a universal system coincided with the rise of large empires and kingdoms in the
Greek world.[20] Whereas the "higher" law that Aristotle suggested one could appeal to was emphatically
natural, in contradistinction to being the result of divine positive legislation, the Stoic natural law was
indifferent to either the natural or divine source of the law: the Stoics asserted the existence of a rational and
purposeful order to the universe (a divine or eternal law), and the means by which a rational being lived in
accordance with this order was the natural law, which inspired actions that accorded with virtue.[1]

As the English historian A. J. Carlyle (18611943) notes:

There is no change in political theory so startling in its completeness as the change from the theory
of Aristotle to the later philosophical view represented by Cicero and Seneca.... We think that this
cannot be better exemplified than with regard to the theory of the equality of human nature."[21]
 Charles H. McIlwain likewise observes that "the idea of the equality of men is the most profound
contribution of the Stoics to political thought" and that "its greatest influence is in the changed
conception of law that in part resulted from it.[22]

Natural law first appeared among the stoics who believed that God is everywhere and in everyone (see classical
pantheism). According to this belief, within humans there is a "divine spark" which helps them to live in
accordance with nature. The stoics felt that there was a way in which the universe had been designed, and that
natural law helped us to harmonise with this.

Cicero

Cicero wrote in his De Legibus that both justice and law originate from what
nature has given to man, from what the human mind embraces, from the
function of man, and from what serves to unite humanity.[23] For Cicero,
natural law obliges us to contribute to the general good of the larger
society.[24] The purpose of positive laws is to provide for "the safety of
citizens, the preservation of states, and the tranquility and happiness of human
life." In this view, "wicked and unjust statutes" are "anything but 'laws,'"
because "in the very definition of the term 'law' there inheres the idea and
principle of choosing what is just and true."[25] Law, for Cicero, "ought to be
a reformer of vice and an incentive to virtue."[26] Cicero expressed the view
that "the virtues which we ought to cultivate, always tend to our own
happiness, and that the best means of promoting them consists in living with
men in that perfect union and charity which are cemented by mutual
benefits."[24]
Marcus Tullius Cicero
Cicero influenced the discussion of natural law for many centuries to come,
up through the era of the American Revolution. The jurisprudence of the
Roman Empire was rooted in Cicero, who held "an extraordinary grip ... upon the imagination of posterity" as
"the medium for the propagation of those ideas which informed the law and institutions of the empire."[27]
Cicero's conception of natural law "found its way to later centuries notably through the writings of Saint Isidore
of Seville and the Decretum of Gratian."[28] Thomas Aquinas, in his summary of medieval natural law, quoted
Cicero's statement that "nature" and "custom" were the sources of a society's laws.[29]

The Renaissance Italian historian Leonardo Bruni praised Cicero as the man "who carried philosophy from
Greece to Italy, and nourished it with the golden river of his eloquence."[30] The legal culture of Elizabethan
England, exemplified by Sir Edward Coke, was "steeped in Ciceronian rhetoric."[31] The Scottish moral
philosopher Francis Hutcheson, as a student at Glasgow, "was attracted most by Cicero, for whom he always
professed the greatest admiration."[32] More generally in eighteenth-century Great Britain, Cicero's name was a
household word among educated people.[32] Likewise, "in the admiration of early Americans Cicero took pride
of place as orator, political theorist, stylist, and moralist."[33]

The British polemicist Thomas Gordon "incorporated Cicero into the radical ideological tradition that travelled
from the mother country to the colonies in the course of the eighteenth century and decisively shaped early
American political culture."[34] Cicero's description of the immutable, eternal, and universal natural law was
quoted by Burlamaqui[35] and later by the American revolutionary legal scholar James Wilson.[36] Cicero
became John Adams's "foremost model of public service, republican virtue, and forensic eloquence."[37]
Adams wrote of Cicero that "as all the ages of the world have not produced a greater statesman and philosopher
united in the same character, his authority should have great weight."[38] Thomas Jefferson "first encountered
Cicero as a schoolboy while learning Latin, and continued to read his letters and discourses throughout his life.
He admired him as a patriot, valued his opinions as a moral philosopher, and there is little doubt that he looked
upon Cicero's life, with his love of study and aristocratic country life, as a model for his own."[39] Jefferson
described Cicero as "the father of eloquence and philosophy."[40]
Christianity

Those who see biblical support for the doctrine of natural law often point to Abraham's interrogation of God on
behalf of the iniquitous city of Sodom. Abraham even dares to tell the Most High that his plan to destroy the
city (Genesis 18:25) would violate Gods own justice: Can the judge of the whole earth not himself do
justice? This almost Socratic reply became for later writers the beginnings of natural rights theory. In this
respect, natural law as described in the interaction between Abraham and God predates the later Greek
exposition of it by Plato, Socrates and Aristotle. The New Testament carries a further exposition on the
Abrahamic dialogue and links to the later Greek exposition on the subject, when Paul's Epistle to the Romans
states: "For when the Gentiles, which have not the law, do by nature the things contained in the law, these,
having not the law, are a law unto themselves: Which shew the work of the law written in their hearts, their
conscience also bearing witness, and their thoughts the meanwhile accusing or else excusing one another.
(Romans 2:1415). The intellectual historian A. J. Carlyle has commented on this passage, "There can be little
doubt that St Paul's words imply some conception analogous to the 'natural law' in Cicero, a law written in
men's hearts, recognized by man's reason, a law distinct from the positive law of any State, or from what St
Paul recognized as the revealed law of God. It is in this sense that St Paul's words are taken by the Fathers of
the fourth and fifth centuries like St Hilary of Poitiers, St Ambrose, and St Augustine, and there seems no
reason to doubt the correctness of their interpretation."[41]

Because of its origins in the Old Testament, early Church Fathers, especially those in the West, saw natural law
as part of the natural foundation of Christianity. The most notable among these was Augustine of Hippo, who
equated natural law with man's prelapsarian state; as such, a life according to unbroken human nature was no
longer possible and men needed instead to seek healing and salvation through the divine law and grace of Jesus
Christ.

In the twelfth century, Gratian equated the natural law with divine law. Albertus Magnus would address the
subject a century later, and his pupil St. Thomas Aquinas in his Summa Theologica I-II qq. 90106, restored
Natural Law to its independent state, asserting natural law as the rational creature's participation in the eternal
law.[42] Yet, since human reason could not fully comprehend the Eternal law, it needed to be supplemented by
revealed Divine law. (See also Biblical law in Christianity.) Meanwhile, Aquinas taught that all human or
positive laws were to be judged by their conformity to the natural law. An unjust law is not a law, in the full
sense of the word. It retains merely the 'appearance' of law insofar as it is duly constituted and enforced in the
same way a just law is, but is itself a 'perversion of law.'[43] At this point, the natural law was not only used to
pass judgment on the moral worth of various laws, but also to determine what those laws meant in the first
place. This principle laid the seed for possible societal tension with reference to tyrants.[44]

The natural law was inherently teleological, however, it is most assuredly not deontological. For Christians,
natural law is how man manifests the divine image in his life. This mimicry of God's own life is impossible to
accomplish except by means of the power of grace. Thus, whereas deontological systems merely require certain
duties be performed, Christianity explicitly states that no one can, in fact, perform any duties if grace is lacking.
For Christians, natural law flows not from divine commands, but from the fact that man is made in God's
image, man is empowered by God's grace. Living the natural law is how man displays the gifts of life and
grace, the gifts of all that is good. Consequences are in God's hands, consequences are generally not within
man's control, thus in natural law, actions are judged by three things: (1) the person's intent, (2) the
circumstances of the act and (3) the nature of the act. The apparent good or evil consequence resulting from the
moral act is not relevant to the act itself. The specific content of the natural law is therefore determined by how
each person's acts mirror God's internal life of love. Insofar as one lives the natural law, temporal satisfaction
may or may not be attained, but salvation will be attained. The state, in being bound by the natural law, is
conceived as an institution whose purpose is to assist in bringing its subjects to true happiness. True happiness
derives from living in harmony with the mind of God as an image of the living God.

In the 16th century, the School of Salamanca (Francisco Surez, Francisco de Vitoria, etc.) further developed a
philosophy of natural law.
After the Protestant Reformation, some Protestant denominations maintained parts of the Catholic concept of
natural law. The English theologian Richard Hooker from the Church of England adapted Thomistic notions of
natural law to Anglicanism five principles: to live, to learn, to reproduce, to worship God, and to live in an
ordered society.[45]

English jurisprudence

Heinrich A. Rommen remarked upon "the tenacity with which the spirit of the English common law retained
the conceptions of natural law and equity which it had assimilated during the Catholic Middle Ages, thanks
especially to the influence of Henry de Bracton (d. 1268) and Sir John Fortescue (d. cir. 1476)."[46] Bracton's
translator notes that Bracton "was a trained jurist with the principles and distinctions of Roman jurisprudence
firmly in mind"; but Bracton adapted such principles to English purposes rather than copying slavishly.[47] In
particular, Bracton turned the imperial Roman maxim that "the will of the prince is law" on its head, insisting
that the king is under the law.[48] The legal historian Charles F. Mullett has noted Bracton's "ethical definition
of law, his recognition of justice, and finally his devotion to natural rights."[49] Bracton considered justice to be
the "fountain-head" from which "all rights arise."[50] For his definition of justice, Bracton quoted the twelfth-
century Italian jurist Azo: "'Justice is the constant and unfailing will to give to each his right.'"[51] Bracton's
work was the second legal treatise studied by the young apprentice lawyer Thomas Jefferson.[52]

Fortescue stressed "the supreme importance of the law of God and of nature" in works that "profoundly
influenced the course of legal development in the following centuries."[53] The legal scholar Ellis Sandoz has
noted that "the historically ancient and the ontologically higher laweternal, divine, naturalare woven
together to compose a single harmonious texture in Fortescue's account of English law."[54] As the legal
historian Norman Doe explains: "Fortescue follows the general pattern set by Aquinas. The objective of every
legislator is to dispose people to virtue. It is by means of law that this is accomplished. Fortescue's definition of
law (also found in Accursius and Bracton), after all, was 'a sacred sanction commanding what is virtuous
[honesta] and forbidding the contrary.'"[55] Fortescue cited the great Italian Leonardo Bruni for his statement
that "virtue alone produces happiness."[56]

Christopher St. Germain's Doctor and Student was a classic of English jurisprudence,[57] and it was thoroughly
annotated by Thomas Jefferson.[58] St. Germain informs his readers that English lawyers generally don't use the
phrase "law of nature", but rather use "reason" as the preferred synonym.[59][60] Norman Doe notes that St.
Germain's view "is essentially Thomist," quoting Thomas Aquinas's definition of law as "an ordinance of
reason made for the common good by him who has charge of the community, and promulgated".[61]

Sir Edward Coke was the preeminent jurist of his time.[62] Coke's preeminence extended across the ocean: "For
the American revolutionary leaders, 'law' meant Sir Edward Coke's custom and right reason."[63][64] Coke
defined law as "perfect reason, which commands those things that are proper and necessary and which prohibits
contrary things".[65] For Coke, human nature determined the purpose of law; and law was superior to any one
man's reason or will.[66] Coke's discussion of natural law appears in his report of Calvin's Case (1608): "The
law of nature is that which God at the time of creation of the nature of man infused into his heart, for his
preservation and direction." In this case the judges found that "the ligeance or faith of the subject is due unto
the King by the law of nature: secondly, that the law of nature is part of the law of England: thirdly, that the law
of nature was before any judicial or municipal law: fourthly, that the law of nature is immutable." To support
these findings, the assembled judges (as reported by Coke, who was one of them) cited as authorities Aristotle,
Cicero, and the Apostle Paul; as well as Bracton, Fortescue, and St. Germain.[67]

After Coke, the most famous common law jurist of the seventeenth century is Sir Matthew Hale. Hale wrote a
treatise on natural law that circulated among English lawyers in the eighteenth century and survives in three
manuscript copies.[68] This natural-law treatise has been published as Of the Law of Nature (2015).[69] Hale's
definition of the natural law reads: "It is the Law of Almighty God given by him to Man with his Nature
discovering the morall good and moral evill of Moral Actions, commanding the former, and forbidding the
latter by the secret voice or dictate of his implanted nature, his reason, and his concience."[70] He viewed
natural law as antecedent, preparatory, and subsequent to civil government,[71] and stated that human law
"cannot forbid what the Law of Nature injoins, nor Command what the Law of Nature prohibits."[72] He cited
"cannot forbid what the Law of Nature injoins, nor Command what the Law of Nature prohibits."[72] He cited
as authorities Plato, Aristotle, Cicero, Seneca, Epictetus, and the Apostle Paul.[73] He was critical of Hobbes's
reduction of natural law to self-preservation and Hobbes's account of the state of nature,[74] but drew positively
on Hugo Grotius's De jure belli ac pacis, Francisco Surez's Tractatus de legibus ac deo legislatore, and John
Selden's John Selden's De jure naturali et gentium juxta disciplinam Ebraeorum.[75]

As early as the thirteenth century, it was held that "the law of nature...is the ground of all laws"[76] and by the
Chancellor and Judges that "it is required by the law of nature that every person, before he can be punish'd,
ought to be present; and if absent by contumacy, he ought to be summoned and make default".[77][78] Further,
in 1824, we find it held that "proceedings in our Courts are founded upon the law of England, and that law is
again founded upon the law of nature and the revealed law of God. If the right sought to be enforced is
inconsistent with either of these, the English municipal courts cannot recognize it."[79]

American jurisprudence

The U.S. Declaration of Independence states that it has become necessary for the people of the United States to
assume "the separate and equal station to which the Laws of Nature and of Nature's God entitle them". Some
early American lawyers and judges perceived natural law as too tenuous, amorphous and evanescent a legal
basis for grounding concrete rights and governmental limitations.[6] Natural law did, however, serve as
authority for legal claims and rights in some judicial decisions, legislative acts, and legal pronouncements.[80]
Robert Lowry Clinton argues that the U.S. Constitution rests on a common law foundation and the common
law, in turn, rests on a classical natural law foundation.[81]

Hobbes

By the 17th Century, the Medieval teleological view came under intense
criticism from some quarters. Thomas Hobbes instead founded a
contractualist theory of legal positivism on what all men could agree upon:
what they sought (happiness) was subject to contention, but a broad
consensus could form around what they feared (violent death at the hands of
another). The natural law was how a rational human being, seeking to
survive and prosper, would act. Natural law, therefore, was discovered by
considering humankind's natural rights, whereas previously it could be said
that natural rights were discovered by considering the natural law. In
Hobbes' opinion, the only way natural law could prevail was for men to
submit to the commands of the sovereign. Because the ultimate source of
law now comes from the sovereign, and the sovereign's decisions need not
be grounded in morality, legal positivism is born. Jeremy Bentham's
Thomas Hobbes
modifications on legal positivism further developed the theory.

As used by Thomas Hobbes in his treatises Leviathan and De Cive, natural

law is "a precept, or general rule, found out by reason, by which a man is forbidden to do that which is
destructive of his life, or takes away the means of preserving the same; and to omit that by which he thinks it
may best be preserved."[82]

According to Hobbes, there are nineteen Laws. The first two are expounded in chapter XIV of Leviathan ("of
the first and second natural laws; and of contracts"); the others in chapter XV ("of other laws of nature").

The first Law of nature is that every man ought to endeavour peace, as far as he has hope of obtaining it;
and when he cannot obtain it, that he may seek and use all helps and advantages of war.
The second Law of nature is that a man be willing, when others are so too, as far forth, as for peace, and
defence of himself he shall think it necessary, to lay down this right to all things; and be contented with
so much liberty against other men, as he would allow other men against himself.
The third Law is that men perform their covenants made. In this law of nature consisteth the fountain and
original of justice... when a covenant is made, then to break it is unjust and the definition of injustice is
 no other than the not performance of covenant. And whatsoever is not unjust is just.
The fourth Law is that a man which receiveth benefit from another of mere grace, endeavour that he
which giveth it, have no reasonable cause to repent him of his good will. Breach of this law is called
ingratitude.
The fifth Law is complaisance: that every man strive to accommodate himself to the rest. The observers
of this law may be called sociable; the contrary, stubborn, insociable, forward, intractable.
The sixth Law is that upon caution of the future time, a man ought to pardon the offences past of them
that repenting, desire it.
The seventh Law is that in revenges, men look not at the greatness of the evil past, but the greatness of
the good to follow.
The eighth Law is that no man by deed, word, countenance, or gesture, declare hatred or contempt of
another. The breach of which law is commonly called contumely.
The ninth Law is that every man acknowledge another for his equal by nature. The breach of this precept
is pride.
The tenth law is that at the entrance into the conditions of peace, no man require to reserve to himself
any right, which he is not content should be reserved to every one of the rest. The breach of this precept
is arrogance, and observers of the precept are called modest.
The eleventh law is that if a man be trusted to judge between man and man, that he deal equally between
them.
The twelfth law is that such things as cannot be divided, be enjoyed in common, if it can be; and if the
quantity of the thing permit, without stint; otherwise proportionably to the number of them that have
right.
The thirteenth law is the entire right, or else...the first possession (in the case of alternating use), of a
thing that can neither be divided nor enjoyed in common should be determined by lottery.
The fourteenth law is that those things which cannot be enjoyed in common, nor divided, ought to be
adjudged to the first possessor; and in some cases to the first born, as acquired by lot.
The fifteenth law is that all men that mediate peace be allowed safe conduct.
The sixteenth law is that they that are at controversie, submit their Right to the judgement of an
Arbitrator.
The seventeenth law is that no man is a fit Arbitrator in his own cause.
The eighteenth law is that no man should serve as a judge in a case if greater profit, or honour, or
pleasure apparently ariseth [for him] out of the victory of one party, than of the other.
The nineteenth law is that in a disagreement of fact, the judge should not give more weight to the
testimony of one party than another, and absent other evidence, should give credit to the testimony of
other witnesses.

Hobbes's philosophy includes a frontal assault on the founding principles of the earlier natural legal
tradition,[83] disregarding the traditional association of virtue with happiness,[84] and likewise re-defining "law"
to remove any notion of the promotion of the common good.[85] Hobbes has no use for Aristotle's association
of nature with human perfection, inverting Aristotle's use of the word "nature." Hobbes posits a primitive,
unconnected state of nature in which men, having a "natural proclivity...to hurt each other" also have "a Right
to every thing, even to one anothers body";[86] and "nothing can be Unjust" in this "warre of every man against
every man" in which human life is "solitary, poore, nasty, brutish, and short."[87] Rejecting Cicero's view that
men join in society primarily through "a certain social spirit which nature has implanted in man,"[88] Hobbes
declares that men join in society simply for the purpose of "getting themselves out from that miserable
condition of Warre, which is necessarily consequent...to the naturall Passions of men, when there is no visible
Power to keep them in awe."[89] As part of his campaign against the classical idea of natural human sociability,
Hobbes inverts that fundamental natural legal maxim, the Golden Rule. Hobbes's version is "Do not that to
another, which thou wouldst not have done to thy selfe."[90]

Cumberland's rebuttal of Hobb es

The English cleric Richard Cumberland wrote a lengthy and influential attack on Hobbes's depiction of
individual self-interest as the essential feature of human motivation. Historian Knud Haakonssen has noted that
in the eighteenth century, Cumberland was commonly placed alongside Alberico Gentili, Hugo Grotius and
Samuel Pufendorf "in the triumvirate of seventeenth-century founders of the 'modern' school of natural
law."[91] The eighteenth-century philosophers Shaftesbury and Hutcheson "were obviously inspired in part by
law."[91] The eighteenth-century philosophers Shaftesbury and Hutcheson "were obviously inspired in part by
Cumberland."[92] Historian Jon Parkin likewise describes Cumberland's work as "one of the most important
works of ethical and political theory of the seventeenth century."[93] Parkin observes that much of
Cumberland's material "is derived from Roman Stoicism, particularly from the work of Cicero, as "Cumberland
deliberately cast his engagement with Hobbes in the mould of Cicero's debate between the Stoics, who believed
that nature could provide an objective morality, and Epicureans, who argued that morality was human,
conventional and self-interested."[94] In doing so, Cumberland de-emphasized the overlay of Christian dogma
(in particular, the doctrine of "original sin" and the corresponding presumption that humans are incapable of
"perfecting" themselves without divine intervention) that had accreted to natural law in the Middle Ages.

By way of contrast to Hobbes's multiplicity of laws, Cumberland states in the very first sentence of his Treatise
of the Laws of Nature that "all the Laws of Nature are reduc'd to that one, of Benevolence toward all
Rationals."[95] He later clarifies: "By the name Rationals I beg leave to understand, as well God as Man; and I
do it upon the Authority of Cicero." Cumberland argues that the mature development ("perfection") of human
nature involves the individual human willing and acting for the common good.[96] For Cumberland, human
interdependence precludes Hobbes's natural right of each individual to wage war against all the rest for
personal survival. However, Haakonssen warns against reading Cumberland as a proponent of "enlightened
self-interest." Rather, the "proper moral love of humanity" is "a disinterested love of God through love of
humanity in ourselves as well as others."[97] Cumberland concludes that actions "principally conducive to our
Happiness" are those that promote "the Honour and Glory of God" and also "Charity and Justice towards
men."[98] Cumberland emphasizes that desiring the well-being of our fellow humans is essential to the "pursuit
of our own Happiness."[99] He cites "reason" as the authority for his conclusion that happiness consists in "the
most extensive Benevolence," but he also mentions as "Essential Ingredients of Happiness" the "Benevolent
Affections," meaning "Love and Benevolence towards others," as well as "that Joy, which arises from their
Happiness."[100]

Liberal natural law

Liberal natural law grew out of the medieval Christian natural law theories
and out of Hobbes' revision of natural law, sometimes in an uneasy balance
of the two.

Sir Alberico Gentili and Hugo Grotius based their philosophies of

international law on natural law. In particular, his writings on freedom of the
seas and just war theory directly appealed to natural law. About natural law
itself, he wrote that "even the will of an omnipotent being cannot change or
abrogate" natural law, which "would maintain its objective validity even if
we should assume the impossible, that there is no God or that he does not
care for human affairs." (De iure belli ac pacis, Prolegomeni XI). This is the
famous argument etiamsi daremus (non esse Deum), that made natural law
no longer dependent on theology. However, German church-historians Ernst Dr Alberico Gentili, the founder of
Wolf and M. Elze disagreed and claimed that Grotius' concept of natural law the science of international law.
did have a theological basis. [101] In Grotius' view, the Old Testament
contained moral precepts (e.g. the Decalogue) which Christ confirmed and
therefore were still valid. Moreover, they were useful in explaining the content of natural law. Both biblical
revelation and natural law originated in God and could therefore not contradict each other.[102]

In a similar way, Samuel Pufendorf gave natural law a theological foundation and applied it to his concepts of
government and international law.[103]

John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of
Government. There is considerable debate about whether his conception of natural law was more akin to that of
Aquinas (filtered through Richard Hooker) or Hobbes' radical reinterpretation, though the effect of Locke's
understanding is usually phrased in terms of a revision of Hobbes upon Hobbesean contractualist grounds.
Locke turned Hobbes' prescription around, saying that if the ruler went against natural law and failed to protect
"life, liberty, and property," people could justifiably overthrow the existing state and create a new one.[104]

While Locke spoke in the language of natural law, the content of this law was by and large protective of natural
rights, and it was this language that later liberal thinkers preferred. Political philosopher Jeremy Waldron has
pointed out that Locke's political thought was based on "a particular set of Protestant Christian
assumptions."[105] To Locke, the content of natural law was identical with biblical ethics as laid down
especially in the Decalogue, Christ's teaching and exemplary life, and St. Paul's admonitions.[106] Locke
derived the concept of basic human equality, including the equality of the sexes ("Adam and Eve"), from
Genesis 1, 2628, the starting-point of the theological doctrine of Imago Dei.[107] One of the consequences is
that as all humans are created equally free, governments need the consent of the governed.[108] Thomas
Jefferson, arguably echoing Locke, appealed to unalienable rights in the Declaration of Independence, "We
hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."[109] The Lockean
idea that governments need the consent of the governed was also fundamental to the Declaration of
Independence, as the American Revolutionaries used it as justification for their separation from the British
crown.[110]

The Belgian philosopher of law Frank van Dun is one among those who are elaborating a secular
conception[111] of natural law in the liberal tradition. Libertarian theorist Murray Rothbard argues that "the
very existence of a natural law discoverable by reason is a potentially powerful threat to the status quo and a
standing reproach to the reign of blindly traditional custom or the arbitrary will of the State apparatus."[112]
Ludwig von Mises states that he relaid the general sociological and economic foundations of the liberal
doctrine upon utilitarianism, rather than natural law, but R.A. Gonce argues that "the reality of the argument
constituting his system overwhelms his denial."[113] Murray Rothbard, however, says that Gonce makes a lot of
errors and distortions in the analysis of Mises's works, including making confusions about the term which
Mises uses to refer to scientific laws, "laws of nature", saying it characterizes Mises as a natural law
philosopher.[114] David Gordon notes, "When most people speak of natural law, what they have in mind is the
contention that morality can be derived from human nature. If human beings are rational animals of such-and-
such a sort, then the moral virtues are...(filling in the blanks is the difficult part)."[115]

Economist and philosopher F. A. Hayek said that, originally, "the term 'natural' was used to describe an
orderliness or regularity that was not the product of deliberate human will. Together with 'organism' it was one
of the two terms generally understood to refer to the spontaneously grown in contrast to the invented or
designed. Its use in this sense had been inherited from the stoic philosophy, had been revived in the twelfth
century, and it was finally under its flag that the late Spanish Schoolmen developed the foundations of the
genesis and functioning of spontaneously formed social institutions."[116] The idea that 'natural' was "the
product of designing reason" is a product of a seventeenth century rationalist reinterpretation of the law of
nature. Luis Molina, for example, when referred to the 'natural' price, explained that it is "so called because 'it
results from the thing itself without regard to laws and decrees, but is dependent on many circumstances which
alter it, such as the sentiments of men, their estimation of different uses, often even in consequence of whims
and pleasures".[117] And even John Locke, when talking about the foundations of natural law and explaining
what he thought when citing "reason", said: "By reason, however, I do not think is meant here that faculty of
the understanding which forms traint of thought and deduces proofs, but certain definite principles of action
from which spring all virtues and whatever is necessary for the proper moulding of morals."[118]

This anti-rationalist approach to human affairs, for Hayek, was the same which guided Scottish enlightenment
thinkers, such as Adam Smith, David Hume and Adam Ferguson, to make their case for liberty.[119] For them,
no one can have the knowledge necessary to plan society, and this "natural" or "spontaneous" order of society
shows how it can efficiently "plan" bottom-up.[120] Also, the idea that law is just a product of deliberate design,
denied by natural law and linked to legal positivism, can easily generate totalitarianism: "If law is wholly the
product of deliberate design, whatever the designer decrees to be law is just by definition and unjust law
becomes a contradiction in terms. The will of the duly authorized legislator is then wholly unfettered and

guided solely by his concrete interests".[121] This idea is wrong because law cannot be just a product of
guided solely by his concrete interests".[121] This idea is wrong because law cannot be just a product of
"reason": "no system of articulated law can be applied except within a framework of generally recognized but
often unarticulated rules of justice".[122]

However, a secular critique of the natural law doctrine was stated by Pierre Charron in his De la sagesse
(1601): "The sign of a natural law must be the universal respect in which it is held, for if there was anything
that nature had truly commanded us to do, we would undoubtedly obey it universally: not only would every
nation respect it, but every individual. Instead there is nothing in the world that is not subject to contradiction
and dispute, nothing that is not rejected, not just by one nation, but by many; equally, there is nothing that is
strange and (in the opinion of many) unnatural that is not approved in many countries, and authorized by their
customs."

Islamic natural law

Ab Rayhn al-Brn, an Islamic scholar and polymath scientist, understood natural law as the survival of the
fittest. He argued that the antagonism between human beings can only be overcome through a divine law,
which he believed to have been sent through prophets. This is also the position of the Ashari school, the largest
school of Sunni theology.[123] Averroes (Ibn Rushd), in his treatise on Justice and Jihad and his commentary
on Plato's Republic, writes that the human mind can know of the unlawfulness of killing and stealing and thus
of the five maqasid or higher intents of the Islamic sharia or to protect religion, life, property, offspring, and
reason. The concept of natural law entered the mainstream of Western culture through his Aristotelian
commentaries, influencing the subsequent Averroist movement and the writings of Thomas Aquinas.[124]

The Maturidi school, the second largest school of Sunni theology, posits the existence of a form of natural law.
Abu Mansur al-Maturidi stated that the human mind could know of the existence of God and the major forms
of 'good' and 'evil' without the help of revelation. Al-Maturidi gives the example of stealing, which is known to
be evil by reason alone due to man's working hard for his property. Killing, fornication, and (for certain
Muslims) drinking alcohol were all 'evils' the human mind could know of according to al-Maturidi. The
concept of Istislah in Islamic law bears some similarities to the natural law tradition in the West, as exemplified
by Thomas Aquinas. However, whereas natural law deems good what is self-evidently good, according as it
tends towards the fulfilment of the person, istislah calls good whatever is connected to one of five "basic
goods". Al-Ghazali abstracted these "basic goods" from the legal precepts in the Qur'an and Sunnah: they are
religion, life, reason, lineage and property. Some add also "honour". Ibn Qayyim Al-Jawziyya also posited that
human reason could discern between 'great sins' and good deeds.

Brehon law

Early Irish law, An Senchus Mor (The Great Knowledge of the Ancient ones) mentions in a number of places
recht aicned or natural law. This is a concept predating European legal theory, and reflects a type of law that is
universal and may be determined by reason and observation of natural action. Neil McLeod identifies concepts
that law must accord with: fr (truth) and dliged (right or entitlement). These two terms occur frequently,
though Irish law never strictly defines them. Similarly, the term crus (law in accordance with proper order)
occurs in some places, and even in the titles of certain texts. These were two very real concepts to the jurists
and the value of a given judgment with respect to them was apparently ascertainable. McLeod has also
suggested that most of the specific laws mentioned have passed the test of time and thus their truth has been
confirmed, while other provisions are justified in other ways because they are younger and have not been tested
over time[125] The laws were written in the oldest dialect of the Irish language, called Brla Fini [Bairla-
faina], which even at the time was so difficult that persons about to become brehons had to be specially
instructed in it, the length of time from beginning to becoming a learned Brehon was usually 20 years.
Although under the law any third person could fulfill the duty if both parties agreed, and both were sane.[126] It
has been included in an Ethno-Celtic breakaway subculture, as it has religious undertones and freedom of
religious expression allows it to once again be used as a valid system in Western Europe.[127]

Catholic natural law jurisprudence

The Catholic Church holds the view of natural law introduced by
Albertus Magnus and elaborated by Thomas Aquinas,[128] particularly
in his Summa Theologiae, and often as filtered through the School of
Salamanca. This view is also shared by some Protestants,[129] and was
delineated by Anglican writer C.S. Lewis in his works Mere
Christianity and The Abolition of Man.[130]

The Catholic Church understands human beings to consist of body and

mind, the physical and the non-physical (or soul perhaps), and that the
two are inextricably linked.[131] Humans are capable of discerning the
difference between good and evil because they have a conscience.[132]
There are many manifestations of the good that we can pursue. Some,
like procreation, are common to other animals, while others, like the
pursuit of truth, are inclinations peculiar to the capacities of human
beings.[133]

To know what is right, one must use one's reason and apply it to
Thomas Aquinas' precepts. This reason is believed to be embodied, in
Albertus Magnus, O.P. (c. 12001280).
its most abstract form, in the concept of a primary precept: "Good is to
be sought, evil avoided."[134] St. Thomas explains that:

there belongs to the natural law, first, certain most general

precepts, that are known to all; and secondly, certain secondary
and more detailed precepts, which are, as it were, conclusions
following closely from first principles. As to those general
principles, the natural law, in the abstract, can nowise be blotted
out from men's hearts. But it is blotted out in the case of a
particular action, insofar as reason is hindered from applying
the general principle to a particular point of practice, on account
of concupiscence or some other passion, as stated above (77, 2).
But as to the other, i.e., the secondary precepts, the natural law
can be blotted out from the human heart, either by evil Thomas Aquinas (12251274).
persuasions, just as in speculative matters errors occur in
respect of necessary conclusions; or by vicious customs and
corrupt habits, as among some men, theft, and even unnatural
vices, as the Apostle states (Rm. i), were not esteemed
sinful.[135]

However, while the primary and immediate precepts cannot be "blotted out", the secondary precepts can be.
Therefore, for a deontological ethical theory they are open to a surprisingly large amount of interpretation and
flexibility. Any rule that helps man to live up to the primary or subsidiary precepts can be a secondary precept,
for example:

Drunkenness is wrong because it injures one's health, and worse, destroys one's ability to reason, which
is fundamental to man as a rational animal (i.e., does not support self-preservation).
Theft is wrong because it destroys social relations, and man is by nature a social animal (i.e., does not
support the subsidiary precept of living in society).

Natural moral law is concerned with both exterior and interior acts, also known as action and motive. Simply
doing the right thing is not enough; to be truly moral one's motive must be right as well. For example, helping
an old lady across the road (good exterior act) to impress someone (bad interior act) is wrong. However, good
intentions don't always lead to good actions. The motive must coincide with the cardinal or theological virtues.
Cardinal virtues are acquired through reason applied to nature; they are:
 1. Prudence
2. Justice
3. Temperance
4. Fortitude

The theological virtues are:

1. Faith
2. Hope
3. Charity

According to Aquinas, to lack any of these virtues is to lack the ability to make a moral choice. For example,
consider a man who possesses the virtues of justice, prudence, and fortitude, yet lacks temperance. Due to his
lack of self-control and desire for pleasure, despite his good intentions, he will find himself swaying from the
moral path.

Contemporary jurisprudence
In jurisprudence, natural law can refer to the several doctrines:

That just laws are immanent in nature; that is, they can be "discovered" or "found" but not "created" by
such things as a bill of rights;
That they can emerge by the natural process of resolving conflicts, as embodied by the evolutionary
process of the common law; or
That the meaning of law is such that its content cannot be determined except by reference to moral
principles. These meanings can either oppose or complement each other, although they share the
common trait that they rely on inherence as opposed to design in finding just laws.

Whereas legal positivism would say that a law can be unjust without it being any less a law, a natural law
jurisprudence would say that there is something legally deficient about an unjust norm. Legal interpretivism,
famously defended in the English-speaking world by Ronald Dworkin, claims to have a position different from
both natural law and positivism.

Besides utilitarianism and Kantianism, natural law jurisprudence has in common with virtue ethics that it is a
live option for a first principles ethics theory in analytic philosophy.

The concept of natural law was very important in the development of the English common law. In the struggles
between Parliament and the monarch, Parliament often made reference to the Fundamental Laws of England,
which were at times said to embody natural law principles since time immemorial and set limits on the power
of the monarchy. According to William Blackstone, however, natural law might be useful in determining the
content of the common law and in deciding cases of equity, but was not itself identical with the laws of
England. Nonetheless, the implication of natural law in the common law tradition has meant that the great
opponents of natural law and advocates of legal positivism, like Jeremy Bentham, have also been staunch
critics of the common law.

Natural law jurisprudence is currently undergoing a period of reformulation (as is legal positivism). The most
prominent contemporary natural law jurist, Australian John Finnis, is based in Oxford, but there are also
Americans Germain Grisez, Robert P. George, and Canadian Joseph Boyle and Brazil Emdio Brasileiro. All
have tried to construct a new version of natural law. The 19th-century anarchist and legal theorist, Lysander
Spooner, was also a figure in the expression of modern natural law.

"New Natural Law" as it is sometimes called, originated with Grisez. It focuses on "basic human goods," such
as human life, knowledge, and aesthetic experience, which are self-evidently and intrinsically worthwhile, and
states that these goods reveal themselves as being incommensurable with one another.
The tensions between the natural law and the positive law have played, and continue to play a key role in the
development of international law.[136]

See also
Antigone Non-aggression principle
Hadley Arkes Norm of reciprocity
Jean Barbeyrac Objectivism (philosophy)
J. Budziszewski Orders of creation
Classical liberalism Philosophy of law
Richard Cumberland Purposive theory
Francisco Elias de Tejada y Spinola Rule of law
Henry George Rule according to higher law
Enrique Gil Robles Spontaneous order
International legal theory Substantive due process
Land Value Taxation Thomism
Legal positivism Tit for tat
Liberalism Unenumerated rights
Libertarianism Universality (philosophy)
Moral realism Emerich de Vattel
Natural order White Rose Society
Naturalistic fallacy Xeer
Neo-Scholasticism
Non-aggression principle
Notes

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8. Wild, John (1953). Plato's Modern Enemies and the Theory of Natural Law. Chicago: University of
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9. Plato, Gorgias 508a.
10. Plato, The Republic, 518bd.
11. Plato, The Republic, 540a, 517bd.
12. Plato, Symposium, 205e6a.
13. Plato, Symposium, 211de.
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18. Aristotle, Rhetoric 1373b28.
19. Aristotle, Rhetoric, Book I Chapter 13, http://rhetoric.eserver.org/aristotle/rhet1-13.html
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57. Vinogradoff, Paul (Oct 1908). "Reason and Conscience in Sixteenth-Century Jurisprudence". The Law
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58. Mullett, Charles F. (1966) [1933]. Fundamental Law and the American Revolution, 17601776. New
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59. Doctor and Student, bk. 1, ch. 5.
60. Doe, Norman (1990). Fundamental Authority in Late Medieval English Law. Cambridge University
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61. Doe, Norman (1990). Fundamental Authority in Late Medieval English Law. Cambridge University
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63. John Phillip Reid, In a Defiant Stance: The Conditions of Law in Massachusetts Bay, The Irish
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64. Thomas Jefferson wrote to James Madison in 1826 that before the Revolution, the first volume of Coke's
Institutes of the Laws of England "was the universal elementary book of law students, and a sounder
Whig never wrote, nor of profounder learning in the orthodox doctrines of the British constitution, or in
what were called English liberties." See The Writings of Thomas Jefferson, vol. 16, p. 155.
65. John Underwood Lewis, "Sir Edward Coke (15521634): His Theory of 'Artificial Reason' as a Context
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First Part of the Institutes, 319b.
66. Lewis, "Sir Edward Coke (15521634): His Theory of 'Artificial Reason' as a Context for Modern Basic
Legal Theory,", p. 120.
67. Sir Edward Coke, The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard
(Indianapolis: Liberty Fund, 2003), vol. 1, pp. 19597.
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35.
98. Cumberland, ch. 5, sec. 13 (pp. 52324).
99. Cumberland, ch. 5, sec. 12 (p. 525)
100. Cumberland, ch. 5, sec. 15 (pp. 52728).
101. Ernst Wolf, Naturrecht, in Die Religion in Geschichte und Gegenwart, 3. Auflage, Band IV (1960),
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External links
Stanford Encyclopedia of Philosophy:
The Natural Law Tradition in Ethics, by Mark Murphy, 2002.
Aquinas' Moral, Political, and Legal Philosophy, by John Finnis, 2005.
Natural Law Theories, by John Finnis, 2007.
Internet Encyclopedia of Philosophy Entry 'Natural Law' by Kenneth Einar Himma
Aquinas on natural law
 Natural Law explained, evaluated and applied A clear introduction to Natural Law
Jonathan Dolhenty, Ph.D., "An Overview of Natural Law"
Catholic Encyclopedia "Natural Law"
McElroy, Wendy "The Non-Absurdity of Natural Law", The Freeman, February 1998, Vol. 48, No. 2,
pp. 10811
John Wijngaards, "The controversy of Natural Law".
Lex Naturalis, Ius Naturalis: Law as Positive Reasoning and Natural Rationality by Eric Engle, (Elias
Clarke, 2010).

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