Natural law
Encyclopedia
Natural law, or the law of nature , is any system of law which is purportedly determined by nature
, and thus universal. Classically, natural law refers to the use of reason to analyze human nature
and deduce binding rules of moral behavior. Natural law is contrasted with the positive law
(meaning "man-made law", not "good law"; cf. posit) of a given political community, society
, or nation-state
, and thus serves as a standard by which to critique said positive law. According to natural law theory, the content of positive law cannot be known without some reference to natural law (or something like it). Used in this way, natural law can be invoked to criticize decisions about the statutes, but less so to criticize the law itself. Some use natural law synonymously with natural justice
or natural right (Latin
ius naturale)
Although natural law is often conflated with common law
, the two are distinct in that natural law is a view that certain rights or values are inherent in or universally cognizable by virtue of human reason or human nature, while common law is the legal tradition whereby certain rights or values are legally cognizable by virtue of judicial recognition or articulation. Natural law theories have, however, exercised a profound influence on the development of English
common law, and have featured greatly in the philosophies
of Thomas Aquinas
, Francisco Suárez
, Richard Hooker
, Thomas Hobbes
, Hugo Grotius
, Samuel von Pufendorf
, John Locke
, Francis Hutcheson
, Jean Jacques Burlamaqui, and Emmerich de Vattel. Because of the intersection between natural law and natural rights, it has been cited as a component in United States Declaration of Independence
and the Constitution of the United States, as well as in the Declaration of the Rights of Man and of the Citizen
. Declarationism
states that the founding of the United States is based on Natural law.
does not have an explicit theory of natural law (he almost never uses the phrase natural law except in Gorgias
484 and Timaeus
83e), his concept of nature, according to John Wild, it contains some of the elements found in many natural law theories. According to Plato we live in an orderly universe. At 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". The Form of the Good is the cause of all things and when it is seen it leads a person to act wisely. In the Symposium
, the Good is closely identified with the Beautiful. Also in the Symposium, Plato describes how the experience of the Beautiful by Socrates enables him to resist the temptations of wealth and sex. In the Republic, the ideal community is “a city which would be established in accordance with nature.”
emphasized the distinction between "nature" (physis, φúσις) on the one hand and "law", "custom", or "convention" (nomos, νóμος) on the other. What the law commanded varied from place to place, but what was "by nature" should be the same everywhere. A "law of nature" would therefore have had the flavor more of a paradox than something which obviously existed. 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, δικαιον φυσικον, Latin
ius naturale). Of these, Aristotle is often said to be the father of natural law.
Aristotle's association with natural law is due largely to the interpretation given to his works by Thomas Aquinas
. This was based on Aquinas's conflation of natural law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics
(Book IV of the Eudemian Ethics
). Aquinas's influence was such as to affect a number of early translations of these passages, though more recent translations render them more literally. Aristotle notes that natural justice
is a species of political justice, viz. 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.
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. The context of this remark, however, 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; Aristotle, moreover, considered two of the three candidates for a universally valid, natural law provided in this passage to be wrong. Aristotle's theoretical paternity of the natural law tradition is consequently disputed.
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. Whereas the "higher" law to which Aristotle suggested one could appeal was emphatically natural
, in contradistinction to being the result of divine
positive
legislation
, the Stoic natural law was indifferent to the divine or natural 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 spelled out action that accorded with virtue.
As the historian A.J. Carlyle 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." Charles H. McIlwain likewise observes that "the idea of the equality of men is the profoundest 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."
wrote in his De Legibus
that both justice and law derive their origin from God. For Cicero, natural law obliges us to contribute to the general good of the larger society. 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." Law, for Cicero, "ought to be a reformer of vice and an incentive to virtue." 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."
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." 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
." 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.
The Renaissance Florentine chancellor Leonardo Bruni
praised Cicero as the man "who carried philosophy from Greece to Italy, and nourished it with the golden river of his eloquence." The legal culture of Elizabethan England, exemplified by Sir Edward Coke
, was "steeped in Ciceronian rhetoric." The Scottish moral philosopher Francis Hutcheson
, as a student at Glasgow, "was attracted most by Cicero, for whom he always professed the greatest admiration." More generally in eighteenth-century Great Britain, Cicero's name was a household word among educated people. Likewise, "in the admiration of early Americans Cicero took pride of place as orator, political theorist, stylist, and moralist."
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." Cicero's description of the immutable, eternal, and universal natural law was quoted by Burlamaqui
and later by the American revolutionary legal scholar James Wilson
. Cicero became John Adams
's "foremost model of public service, republican virtue, and forensic eloquence." 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." Thomas Jefferson
"first encountered Cicero as a schoolboy learning Latin, and continued to read his letters and discourses as long as he lived. 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." Jefferson described Cicero as "the father of eloquence and philosophy."
wrote in his Epistle to the Romans
: "For when Gentiles, who do not have the law, by nature do the things contained in the law, these, although not having the law, are a law unto themselves, their conscience also bearing witness." The intellectual historian A.J. Carlyle has commented on this passage as follows:
Some early Church Fathers
, especially those in the West
, sought to incorporate natural law into 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 nature was no longer possible and men needed instead to seek salvation through the divine law
and grace
of Jesus Christ.
In the Twelfth Century, Gratian
equated the natural law with divine law. A century later, St. Thomas Aquinas
in his Summa Theologiae
I-II qq. 90-106, restored Natural Law to its independent state, asserting natural law as the rational creature's participation in the eternal law. 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.' 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 the law said in the first place. This principle laid the seed for possible societal tension with reference to tyrants.
The natural law was inherently teleological and deontological in that although it is aimed at goodness, it is entirely focused on the ethicalness of actions, rather than the consequence. The specific content of the natural law was therefore determined by a conception of what things constituted happiness, be they temporal satisfaction or salvation. The state
, in being bound by the natural law, was conceived as an institution directed at bringing its subjects to true happiness.
In the 16th century, the School of Salamanca
(Francisco Suárez
, Francisco de Vitoria
, etc.) further developed a philosophy of natural law. After the Church of England
broke from Rome
, the English
theologian
Richard Hooker
adapted Thomistic
notions of natural law to Anglicanism
. There are five important principles: to live, to learn, to reproduce, to worship God, and to live in an ordered society.
(d. 1268) and Sir John Fortescue (d. cir. 1476).
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. 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. 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." Bracton considered justice to be the "fountain-head" from which "all rights arise." 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.'" Bracton's work was the second legal treatise studied by the young apprentice lawyer Thomas Jefferson
.
Sir John 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." The legal scholar Ellis Sandoz
has noted that "the historically ancient and the ontologically higher law--eternal, divine, natural--are woven together to compose a single harmonious texture in Fortescue's account of English law." 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.'" Fortescue cited Leonardo Bruni
for his statement that "virtue alone produces happiness."
Christopher St. Germain's Doctor and Student was a classic of English jurisprudence, and it was thoroughly annotated by Thomas Jefferson
. 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. 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."
Sir Edward Coke was the preeminent jurist of his time. Coke's preeminence extended across the ocean: "For the American revolutionary leaders, 'law' meant Sir Edward Coke's custom and right reason."
Coke defined law as "perfect reason, which commands those things that are proper and necessary and which prohibits contrary things." For Coke, human nature determined the purpose of law; and law was superior to any one man's reason or will. 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
.
and governmental limitation
s. Natural law did, however, serve as authority for legal claims and rights in some judicial decisions, legislative acts, and legal pronouncements. 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.
and polymath
scientist
, understood natural law as the law of the jungle
. 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. 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
.
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 drinking alcohol were all 'evils' which 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 that which is known self-evidently to be 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.
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. It 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 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."
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").
Hobbes's philosophy includes a frontal assault on the founding principles of the earlier natural legal tradition, disregarding the traditional association of virtue with happiness, and likewise re-defining "law" to remove any notion of the promotion of the common good. 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"; 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." Rejecting Cicero
's view that men join in society primarily through "a certain social spirit which nature has implanted in man," 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." 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."
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 Hugo Grotius
and Samuel Pufendorf "in the triumvirate of seventeenth-century founders of the 'modern' school of natural law." The eighteenth-century philosophers Shaftesbury
and Hutcheson
"were obviously inspired in part by Cumberland." Historian Jon Parkin likewise describes Cumberland's work as "one of the most important works of ethical and political theory of the seventeenth century." 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." 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." 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. 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." Cumberland concludes that actions "principally conducive to our Happiness" are those which promote "the Honour and Glory of God" and also "Charity and Justice towards men." Cumberland emphasizes that desiring the well-being of our fellow humans is essential to the "pursuit of our own Happiness." 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."
Christian natural law theories and out of Hobbes'
revision of natural law, sometimes in an uneasy balance of the two.
Hugo Grotius
based his philosophy 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.
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.
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. 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."
The Belgian philosopher of law Frank van Dun
is one among those who are elaborating a secular conception http://users.ugent.be/~frvandun/Texts/Logica/NaturalLaw.htm 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." 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." 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)."
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."
holds the view of natural law set forth by Thomas Aquinas
, particularly in his Summa Theologica
, and often as filtered through the School of Salamanca
. This view is also shared by some Protestant churches.
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. Humans are capable of discerning the difference between good and evil
because they have a conscience
. 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. Some contemporary Catholic theologians, such as John Wijngaards
, dispute the Magisterium's interpretation of Natural Law as applied to specific points of sexual ethics, such as in the areas of contraceptives and homosexual unions.
To know what is right, one must use one's reason and apply it to Aquinas' precepts. This reason is believed to be embodied, in its most abstract form, in the concept of a primary precept: "Good is to be sought, evil avoided." St. Thomas explains that:
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:
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:
The theological virtues
are:
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.
, natural law can refer to the several doctrines:
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 law. 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. 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 natural law and positive law have played, and continue to play a key role in the development of international law
.
Nature
Nature, in the broadest sense, is equivalent to the natural world, physical world, or material world. "Nature" refers to the phenomena of the physical world, and also to life in general...
, and thus universal. Classically, natural law refers to the use of reason to analyze human nature
Human nature
Human nature refers to the distinguishing characteristics, including ways of thinking, feeling and acting, that humans tend to have naturally....
and deduce binding rules of moral behavior. Natural law is contrasted with the positive law
Positive law
Positive law is the term generally used to describe man-made laws which bestow specific privileges upon, or remove them from, an individual or group...
(meaning "man-made law", not "good law"; cf. posit) of a given political community, society
Society
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...
, or nation-state
Nation-state
The nation state is a state that self-identifies as deriving its political legitimacy from serving as a sovereign entity for a nation as a sovereign territorial unit. The state is a political and geopolitical entity; the nation is a cultural and/or ethnic entity...
, and thus serves as a standard by which to critique said positive law. According to natural law theory, the content of positive law cannot be known without some reference to natural law (or something like it). Used in this way, natural law can be invoked to criticize decisions about the statutes, but less so to criticize the law itself. Some use natural law synonymously with natural justice
Natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
or natural right (Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
ius naturale)
Although natural law is often conflated with common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, the two are distinct in that natural law is a view that certain rights or values are inherent in or universally cognizable by virtue of human reason or human nature, while common law is the legal tradition whereby certain rights or values are legally cognizable by virtue of judicial recognition or articulation. Natural law theories have, however, exercised a profound influence on the development of English
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
common law, and have featured greatly in the philosophies
Philosophy
Philosophy is the study of general and fundamental problems, such as those connected with existence, knowledge, values, reason, mind, and language. Philosophy is distinguished from other ways of addressing such problems by its critical, generally systematic approach and its reliance on rational...
of Thomas Aquinas
Thomas Aquinas
Thomas Aquinas, O.P. , also Thomas of Aquin or Aquino, was an Italian Dominican priest of the Catholic Church, and an immensely influential philosopher and theologian in the tradition of scholasticism, known as Doctor Angelicus, Doctor Communis, or Doctor Universalis...
, Francisco Suárez
Francisco Suárez
Francisco Suárez was a Spanish Jesuit priest, philosopher and theologian, one of the leading figures of the School of Salamanca movement, and generally regarded among the greatest scholastics after Thomas Aquinas....
, Richard Hooker
Richard Hooker
Richard Hooker was an Anglican priest and an influential theologian. Hooker's emphases on reason, tolerance and the value of tradition came to exert a lasting influence on the development of the Church of England...
, Thomas Hobbes
Thomas Hobbes
Thomas Hobbes of Malmesbury , in some older texts Thomas Hobbs of Malmsbury, was an English philosopher, best known today for his work on political philosophy...
, Hugo Grotius
Hugo Grotius
Hugo Grotius , also known as Huig de Groot, Hugo Grocio or Hugo de Groot, was a jurist in the Dutch Republic. With Francisco de Vitoria and Alberico Gentili he laid the foundations for international law, based on natural law...
, Samuel von Pufendorf
Samuel von Pufendorf
Baron Samuel von Pufendorf was a German jurist, political philosopher, economist, statesman, and historian. His name was just Samuel Pufendorf until he was ennobled in 1684; he was made a Freiherr a few months before his death in 1694...
, John Locke
John Locke
John Locke FRS , widely known as the Father of Liberalism, was an English philosopher and physician regarded as one of the most influential of Enlightenment thinkers. Considered one of the first of the British empiricists, following the tradition of Francis Bacon, he is equally important to social...
, Francis Hutcheson
Francis Hutcheson
Francis Hutcheson may refer to:*Francis Hutcheson *Francis Hutcheson -See also:*Frank Hutchison, blues musician*Francis Hutchinson, British clergyman...
, Jean Jacques Burlamaqui, and Emmerich de Vattel. Because of the intersection between natural law and natural rights, it has been cited as a component in United States Declaration of Independence
United States Declaration of Independence
The Declaration of Independence was a statement adopted by the Continental Congress on July 4, 1776, which announced that the thirteen American colonies then at war with Great Britain regarded themselves as independent states, and no longer a part of the British Empire. John Adams put forth a...
and the Constitution of the United States, as well as in the Declaration of the Rights of Man and of the Citizen
Declaration of the Rights of Man and of the Citizen
The Declaration of the Rights of Man and of the Citizen is a fundamental document of the French Revolution, defining the individual and collective rights of all the estates of the realm as universal. Influenced by the doctrine of "natural right", the rights of man are held to be universal: valid...
. Declarationism
Declarationism
Declarationism is a legal philosophy that incorporates the United States Declaration of Independence into the body of case law on level with the United States Constitution. It holds that the Declaration is a natural law document and so that natural law has a place within American jurisprudence. Its...
states that the founding of the United States is based on Natural law.
History
The use of natural law, in its various incarnations, has varied widely through its history. There are a number of different theories of natural law, differing from each other with respect to the role that morality plays in determining the authority of legal norms. This article will deal with its usages separately rather than attempt to unify them into a single theory.Plato
Although PlatoPlato
Plato , was a Classical Greek philosopher, mathematician, student of Socrates, writer of philosophical dialogues, and founder of the Academy in Athens, the first institution of higher learning in the Western world. Along with his mentor, Socrates, and his student, Aristotle, Plato helped to lay the...
does not have an explicit theory of natural law (he almost never uses the phrase natural law except in Gorgias
Gorgias (dialogue)
Gorgias is a Socratic dialogue written by Plato around 380 BC. In this dialogue, Socrates seeks the true definition of rhetoric, attempting to pinpoint the essence of rhetoric and unveil the flaws of the sophistic oratory popular in Athens at this time...
484 and Timaeus
Timaeus (dialogue)
Timaeus is one of Plato's dialogues, mostly in the form of a long monologue given by the title character, written circa 360 BC. The work puts forward speculation on the nature of the physical world and human beings. It is followed by the dialogue Critias.Speakers of the dialogue are Socrates,...
83e), his concept of nature, according to John Wild, it contains some of the elements found in many natural law theories. According to Plato we live in an orderly universe. At the basis of this orderly universe or nature are the forms
Theory of Forms
Plato's theory of Forms or theory of Ideas asserts that non-material abstract forms , and not the material world of change known to us through sensation, possess the highest and most fundamental kind of reality. When used in this sense, the word form is often capitalized...
, most fundamentally the Form of the Good, which Plato describes as "the brightest region of Being". The Form of the Good is the cause of all things and when it is seen it leads a person to act wisely. In the Symposium
Symposium (Plato)
The Symposium is a philosophical text by Plato dated c. 385–380 BCE. It concerns itself at one level with the genesis, purpose and nature of love....
, the Good is closely identified with the Beautiful. Also in the Symposium, Plato describes how the experience of the Beautiful by Socrates enables him to resist the temptations of wealth and sex. In the Republic, the ideal community is “a city which would be established in accordance with nature.”
Aristotle
Greek philosophyGreek philosophy
Ancient Greek philosophy arose in the 6th century BCE and continued through the Hellenistic period, at which point Ancient Greece was incorporated in the Roman Empire...
emphasized the distinction between "nature" (physis, φúσις) on the one hand and "law", "custom", or "convention" (nomos, νóμος) on the other. What the law commanded varied from place to place, but what was "by nature" should be the same everywhere. A "law of nature" would therefore have had the flavor more of a paradox than something which obviously existed. Against the conventionalism
Conventionalism
Conventionalism is the philosophical attitude that fundamental principles of a certain kind are grounded on agreements in society, rather than on external reality...
that the distinction between nature and custom could engender, Socrates
Socrates
Socrates was a classical Greek Athenian philosopher. Credited as one of the founders of Western philosophy, he is an enigmatic figure known chiefly through the accounts of later classical writers, especially the writings of his students Plato and Xenophon, and the plays of his contemporary ...
and his philosophic heirs, Plato
Plato
Plato , was a Classical Greek philosopher, mathematician, student of Socrates, writer of philosophical dialogues, and founder of the Academy in Athens, the first institution of higher learning in the Western world. Along with his mentor, Socrates, and his student, Aristotle, Plato helped to lay the...
and Aristotle
Aristotle
Aristotle was a Greek philosopher and polymath, a student of Plato and teacher of Alexander the Great. His writings cover many subjects, including physics, metaphysics, poetry, theater, music, logic, rhetoric, linguistics, politics, government, ethics, biology, and zoology...
, posited the existence of natural justice
Natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
or natural right (dikaion physikon, δικαιον φυσικον, Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
ius naturale). Of these, Aristotle is often said to be the father of natural law.
Aristotle's association with natural law is due largely to the interpretation given to his works by Thomas Aquinas
Thomas Aquinas
Thomas Aquinas, O.P. , also Thomas of Aquin or Aquino, was an Italian Dominican priest of the Catholic Church, and an immensely influential philosopher and theologian in the tradition of scholasticism, known as Doctor Angelicus, Doctor Communis, or Doctor Universalis...
. This was based on Aquinas's conflation of natural law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics
Nicomachean Ethics
The Nicomachean Ethics is the name normally given to Aristotle's best known work on ethics. The English version of the title derives from Greek Ἠθικὰ Νικομάχεια, transliterated Ethika Nikomacheia, which is sometimes also given in the genitive form as Ἠθικῶν Νικομαχείων, Ethikōn Nikomacheiōn...
(Book IV of the Eudemian Ethics
Eudemian Ethics
The Eudemian Ethics is a work of philosophy by Aristotle. Its primary focus is on Ethics, making it one of the primary sources available for study of Aristotelian Ethics. It is named for Eudemus of Rhodes, a pupil of Aristotle who may also have had a hand in editing the final work...
). Aquinas's influence was such as to affect a number of early translations of these passages, though more recent translations render them more literally. Aristotle notes that natural justice
Natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
is a species of political justice, viz. the scheme of distributive
Distributive justice
Distributive justice concerns what some consider to be socially just allocation of goods in a society. A society in which incidental inequalities in outcome do not arise would be considered a society guided by the principles of distributive justice...
and corrective justice
Restorative justice
Restorative justice is an approach to justice that focuses on the needs of victims, offenders, as well as the involved community, instead of satisfying abstract legal principles or punishing the offender...
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
Politics (Aristotle)
Aristotle's Politics is a work of political philosophy. The end of the Nicomachean Ethics declared that the inquiry into ethics necessarily follows into politics, and the two works are frequently considered to be parts of a larger treatise, or perhaps connected lectures, dealing with the...
that the best regime may not rule by law at all.
The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric
Rhetoric (Aristotle)
Aristotle's Rhetoric is an ancient Greek treatise on the art of persuasion, dating from the 4th century BC. In Greek, it is titled ΤΕΧΝΗ ΡΗΤΟΡΙΚΗ, in Latin Ars Rhetorica. In English, its title varies: typically it is titled Rhetoric, the Art of Rhetoric, or a Treatise on...
, 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. The context of this remark, however, 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; Aristotle, moreover, considered two of the three candidates for a universally valid, natural law provided in this passage to be wrong. Aristotle's theoretical paternity of the natural law tradition is consequently disputed.
Stoic natural law
The development of this tradition of natural justiceNatural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
into one of natural law is usually attributed to the Stoics
Stoicism
Stoicism is a school of Hellenistic philosophy founded in Athens by Zeno of Citium in the early . The Stoics taught that destructive emotions resulted from errors in judgment, and that a sage, or person of "moral and intellectual perfection," would not suffer such emotions.Stoics were concerned...
. The rise of natural law as a universal system coincided with the rise of large empires and kingdoms in the Greek world. Whereas the "higher" law to which Aristotle suggested one could appeal was emphatically natural
Appeal to nature
An appeal to nature is a type of argument that depends on an understanding of nature as a source of intelligibility for its claims, and which relies on that understanding for its outcome...
, in contradistinction to being the result of divine
Divinity
Divinity and divine are broadly applied but loosely defined terms, used variously within different faiths and belief systems — and even by different individuals within a given faith — to refer to some transcendent or transcendental power or deity, or its attributes or manifestations in...
positive
Positive law
Positive law is the term generally used to describe man-made laws which bestow specific privileges upon, or remove them from, an individual or group...
legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
, the Stoic natural law was indifferent to the divine or natural source of the law: the Stoics asserted the existence of a rational and purposeful order to the universe (a divine
Divine law
Divine law is any law that in the opinion of believers, comes directly from the will of God . Like natural law it is independent of the will of man, who cannot change it. However it may be revealed or not, so it may change in human perception in time through new revelation...
or eternal law), and the means by which a rational being lived in accordance with this order was the natural law, which spelled out action that accorded with virtue.
As the historian A.J. Carlyle 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." Charles H. McIlwain likewise observes that "the idea of the equality of men is the profoundest 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."
Cicero
CiceroCicero
Marcus Tullius Cicero , was a Roman philosopher, statesman, lawyer, political theorist, and Roman constitutionalist. He came from a wealthy municipal family of the equestrian order, and is widely considered one of Rome's greatest orators and prose stylists.He introduced the Romans to the chief...
wrote in his De Legibus
De Legibus
The de Legibus is a dialogue written by Marcus Tullius Cicero during the last years of the Roman Republic. It bears the same name as Plato’s famous dialogue, The Laws...
that both justice and law derive their origin from God. For Cicero, natural law obliges us to contribute to the general good of the larger society. 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." Law, for Cicero, "ought to be a reformer of vice and an incentive to virtue." 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."
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
Roman Empire
The Roman Empire was the post-Republican period of the ancient Roman civilization, characterised by an autocratic form of government and large territorial holdings in Europe and around the Mediterranean....
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." Cicero's conception of natural law "found its way to later centuries notably through the writings of Saint Isidore of Seville
Isidore of Seville
Saint Isidore of Seville served as Archbishop of Seville for more than three decades and is considered, as the historian Montalembert put it in an oft-quoted phrase, "le dernier savant du monde ancien"...
and the Decretum of Gratian
Decretum Gratiani
The Decretum Gratiani or Concordia discordantium canonum is a collection of Canon law compiled and written in the 12th century as a legal textbook by the jurist known as Gratian. It forms the first part of the collection of six legal texts, which together became known as the Corpus Juris Canonici...
." Thomas Aquinas
Thomas Aquinas
Thomas Aquinas, O.P. , also Thomas of Aquin or Aquino, was an Italian Dominican priest of the Catholic Church, and an immensely influential philosopher and theologian in the tradition of scholasticism, known as Doctor Angelicus, Doctor Communis, or Doctor Universalis...
, in his summary of medieval natural law, quoted Cicero's statement that "nature" and "custom" were the sources of a society's laws.
The Renaissance Florentine chancellor Leonardo Bruni
Leonardo Bruni
Leonardo Bruni was an Italian humanist, historian and statesman. He has been called the first modern historian.-Biography:...
praised Cicero as the man "who carried philosophy from Greece to Italy, and nourished it with the golden river of his eloquence." The legal culture of Elizabethan England, exemplified by Sir Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
, was "steeped in Ciceronian rhetoric." The Scottish moral philosopher Francis Hutcheson
Francis Hutcheson (philosopher)
Francis Hutcheson was a philosopher born in Ireland to a family of Scottish Presbyterians who became one of the founding fathers of the Scottish Enlightenment....
, as a student at Glasgow, "was attracted most by Cicero, for whom he always professed the greatest admiration." More generally in eighteenth-century Great Britain, Cicero's name was a household word among educated people. Likewise, "in the admiration of early Americans Cicero took pride of place as orator, political theorist, stylist, and moralist."
The British polemicist Thomas Gordon
Thomas Gordon (writer)
Thomas Gordon was a Scottish writer and Commonwealthman.Along with John Trenchard, he published The Independent Whig, which was a weekly periodical. From 1720 to 1723, Trenchard and Gordon, wrote a series of 144 essays entitled Cato's Letters, condemning corruption and lack of morality within the...
"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." Cicero's description of the immutable, eternal, and universal natural law was quoted by Burlamaqui
Jean-Jacques Burlamaqui
Jean-Jacques Burlamaqui was a Swiss legal and political theorist, who popularised a number of ideas propounded by other thinkers.-Life:...
and later by the American revolutionary legal scholar James Wilson
James Wilson
James Wilson was one of the Founding Fathers of the United States and a signer of the United States Declaration of Independence. Wilson was elected twice to the Continental Congress, and was a major force in drafting the United States Constitution...
. Cicero became John Adams
John Adams
John Adams was an American lawyer, statesman, diplomat and political theorist. A leading champion of independence in 1776, he was the second President of the United States...
's "foremost model of public service, republican virtue, and forensic eloquence." 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." Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
"first encountered Cicero as a schoolboy learning Latin, and continued to read his letters and discourses as long as he lived. 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." Jefferson described Cicero as "the father of eloquence and philosophy."
Christian natural law
Paul of TarsusPaul of Tarsus
Paul the Apostle , also known as Saul of Tarsus, is described in the Christian New Testament as one of the most influential early Christian missionaries, with the writings ascribed to him by the church forming a considerable portion of the New Testament...
wrote in his Epistle to the Romans
Epistle to the Romans
The Epistle of Paul to the Romans, often shortened to Romans, is the sixth book in the New Testament. Biblical scholars agree that it was composed by the Apostle Paul to explain that Salvation is offered through the Gospel of Jesus Christ...
: "For when Gentiles, who do not have the law, by nature do the things contained in the law, these, although not having the law, are a law unto themselves, their conscience also bearing witness." The intellectual historian A.J. Carlyle has commented on this passage as follows:
Some early Church Fathers
Church Fathers
The Church Fathers, Early Church Fathers, Christian Fathers, or Fathers of the Church were early and influential theologians, eminent Christian teachers and great bishops. Their scholarly works were used as a precedent for centuries to come...
, especially those in the West
Western Christianity
Western Christianity is a term used to include the Latin Rite of the Catholic Church and groups historically derivative thereof, including the churches of the Anglican and Protestant traditions, which share common attributes that can be traced back to their medieval heritage...
, sought to incorporate natural law into Christianity
Christianity
Christianity is a monotheistic religion based on the life and teachings of Jesus as presented in canonical gospels and other New Testament writings...
. The most notable among these was Augustine of Hippo
Augustine of Hippo
Augustine of Hippo , also known as Augustine, St. Augustine, St. Austin, St. Augoustinos, Blessed Augustine, or St. Augustine the Blessed, was Bishop of Hippo Regius . He was a Latin-speaking philosopher and theologian who lived in the Roman Africa Province...
, who equated natural law with man's prelapsarian state; as such, a life according to nature was no longer possible and men needed instead to seek salvation through the divine law
Divine law
Divine law is any law that in the opinion of believers, comes directly from the will of God . Like natural law it is independent of the will of man, who cannot change it. However it may be revealed or not, so it may change in human perception in time through new revelation...
and grace
Divine grace
In Christian theology, grace is God’s gift of God’s self to humankind. It is understood by Christians to be a spontaneous gift from God to man - "generous, free and totally unexpected and undeserved" - that takes the form of divine favour, love and clemency. It is an attribute of God that is most...
of Jesus Christ.
In the Twelfth Century, Gratian
Gratian (jurist)
Gratian, was a 12th century canon lawyer from Bologna. He is sometimes incorrectly referred to as Franciscus Gratianus, Johannes Gratianus, or Giovanni Graziano. The dates of his birth and death are unknown....
equated the natural law with divine law. A century later, St. Thomas Aquinas
Thomas Aquinas
Thomas Aquinas, O.P. , also Thomas of Aquin or Aquino, was an Italian Dominican priest of the Catholic Church, and an immensely influential philosopher and theologian in the tradition of scholasticism, known as Doctor Angelicus, Doctor Communis, or Doctor Universalis...
in his Summa Theologiae
Summa Theologica
The Summa Theologiæ is the best-known work of Thomas Aquinas , and although unfinished, "one of the classics of the history of philosophy and one of the most influential works of Western literature." It is intended as a manual for beginners in theology and a compendium of all of the main...
I-II qq. 90-106, restored Natural Law to its independent state, asserting natural law as the rational creature's participation in the eternal law. Yet, since human reason could not fully comprehend the Eternal law, it needed to be supplemented by revealed Divine law
Divine law
Divine law is any law that in the opinion of believers, comes directly from the will of God . Like natural law it is independent of the will of man, who cannot change it. However it may be revealed or not, so it may change in human perception in time through new revelation...
. (See also Biblical law in Christianity
Biblical law in Christianity
Christian views of the Old Covenant have been central to Christian theology and practice since the circumcision controversy in Early Christianity. There are differing views about the applicability of the Old Covenant among Christian denominations...
.) 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.' 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 the law said in the first place. This principle laid the seed for possible societal tension with reference to tyrants.
The natural law was inherently teleological and deontological in that although it is aimed at goodness, it is entirely focused on the ethicalness of actions, rather than the consequence. The specific content of the natural law was therefore determined by a conception of what things constituted happiness, be they temporal satisfaction or salvation. The state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
, in being bound by the natural law, was conceived as an institution directed at bringing its subjects to true happiness.
In the 16th century, the School of Salamanca
School of Salamanca
The School of Salamanca is the renaissance of thought in diverse intellectual areas by Spanish and Portuguese theologians, rooted in the intellectual and pedagogical work of Francisco de Vitoria...
(Francisco Suárez
Francisco Suárez
Francisco Suárez was a Spanish Jesuit priest, philosopher and theologian, one of the leading figures of the School of Salamanca movement, and generally regarded among the greatest scholastics after Thomas Aquinas....
, Francisco de Vitoria
Francisco de Vitoria
Francisco de Vitoria, OP was a Spanish Renaissance Roman Catholic philosopher, theologian and jurist, founder of the tradition in philosophy known as the School of Salamanca, noted especially for his contributions to the theory of just war and international law...
, etc.) further developed a philosophy of natural law. After the Church of England
Church of England
The Church of England is the officially established Christian church in England and the Mother Church of the worldwide Anglican Communion. The church considers itself within the tradition of Western Christianity and dates its formal establishment principally to the mission to England by St...
broke from Rome
English Reformation
The English Reformation was the series of events in 16th-century England by which the Church of England broke away from the authority of the Pope and the Roman Catholic Church....
, the English
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
theologian
Theology
Theology is the systematic and rational study of religion and its influences and of the nature of religious truths, or the learned profession acquired by completing specialized training in religious studies, usually at a university or school of divinity or seminary.-Definition:Augustine of Hippo...
Richard Hooker
Richard Hooker
Richard Hooker was an Anglican priest and an influential theologian. Hooker's emphases on reason, tolerance and the value of tradition came to exert a lasting influence on the development of the Church of England...
adapted Thomistic
Thomism
Thomism is the philosophical school that arose as a legacy of the work and thought of St. Thomas Aquinas, philosopher, theologian, and Doctor of the Church. In philosophy, his commentaries on Aristotle are his most lasting contribution...
notions of natural law to Anglicanism
Anglicanism
Anglicanism is a tradition within Christianity comprising churches with historical connections to the Church of England or similar beliefs, worship and church structures. The word Anglican originates in ecclesia anglicana, a medieval Latin phrase dating to at least 1246 that means the English...
. There are five important principles: to live, to learn, to reproduce, to worship God, and to live in an ordered society.
English jurisprudence
Heinrich A. Rommen has observed "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 BractonHenry de Bracton
Henry of Bracton, also Henry de Bracton, also Henrici Bracton, or Henry Bratton also Henry Bretton was an English jurist....
(d. 1268) and Sir John Fortescue (d. cir. 1476).
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. 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. 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." Bracton considered justice to be the "fountain-head" from which "all rights arise." 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.'" Bracton's work was the second legal treatise studied by the young apprentice lawyer Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
.
Sir John 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." The legal scholar Ellis Sandoz
Ellis Sandoz
Ellis Sandoz is the Hermann Moyse Jr. Distinguished Professor of Political Science and Director of the Eric Voegelin Institute for American Renaissance Studies...
has noted that "the historically ancient and the ontologically higher law--eternal, divine, natural--are woven together to compose a single harmonious texture in Fortescue's account of English law." 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.'" Fortescue cited Leonardo Bruni
Leonardo Bruni
Leonardo Bruni was an Italian humanist, historian and statesman. He has been called the first modern historian.-Biography:...
for his statement that "virtue alone produces happiness."
Christopher St. Germain's Doctor and Student was a classic of English jurisprudence, and it was thoroughly annotated by Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
. 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. 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."
Sir Edward Coke was the preeminent jurist of his time. Coke's preeminence extended across the ocean: "For the American revolutionary leaders, 'law' meant Sir Edward Coke's custom and right reason."
Coke defined law as "perfect reason, which commands those things that are proper and necessary and which prohibits contrary things." For Coke, human nature determined the purpose of law; and law was superior to any one man's reason or will. 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
Aristotle
Aristotle was a Greek philosopher and polymath, a student of Plato and teacher of Alexander the Great. His writings cover many subjects, including physics, metaphysics, poetry, theater, music, logic, rhetoric, linguistics, politics, government, ethics, biology, and zoology...
, Cicero
Cicero
Marcus Tullius Cicero , was a Roman philosopher, statesman, lawyer, political theorist, and Roman constitutionalist. He came from a wealthy municipal family of the equestrian order, and is widely considered one of Rome's greatest orators and prose stylists.He introduced the Romans to the chief...
, and the Apostle Paul
Paul of Tarsus
Paul the Apostle , also known as Saul of Tarsus, is described in the Christian New Testament as one of the most influential early Christian missionaries, with the writings ascribed to him by the church forming a considerable portion of the New Testament...
; as well as Bracton
Henry de Bracton
Henry of Bracton, also Henry de Bracton, also Henrici Bracton, or Henry Bratton also Henry Bretton was an English jurist....
, Fortescue, and St. Germain
Christopher St. Germain
Christopher St. Germain was a 16th century English common lawyer, legal writer, and Protestant polemicist.- Biography :Christopher St. Germain was in born 1460 to Sir Henry and Anne St. Germain of Shilton, Warwickshire.In 1528, St...
.
American jurisprudence
The U.S. Declaration of Independence states that it has become necessary for 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 rightsRights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
and governmental limitation
Limited government
Limited government is a government which anything more than minimal governmental intervention in personal liberties and the economy is generally disallowed by law, usually in a written constitution. It is written in the United States Constitution in Article 1, Section 8...
s. Natural law did, however, serve as authority for legal claims and rights in some judicial decisions, legislative acts, and legal pronouncements. Robert Lowry Clinton argues that the U.S. Constitution rests on a common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
foundation and the common law, in turn, rests on a classical natural law foundation.
Islamic natural law
Abū Rayhān al-Bīrūnī, an Islamic scholarUlema
Ulama , also spelt ulema, refers to the educated class of Muslim legal scholars engaged in the several fields of Islamic studies. They are best known as the arbiters of shari‘a law...
and polymath
Polymath
A polymath is a person whose expertise spans a significant number of different subject areas. In less formal terms, a polymath may simply be someone who is very knowledgeable...
scientist
Islamic science
Science in the medieval Islamic world, also known as Islamic science or Arabic science, is the science developed and practised in the Islamic world during the Islamic Golden Age . During this time, Indian, Iranian and especially Greek knowledge was translated into Arabic...
, understood natural law as the law of the jungle
The Law of the Jungle
"The Law of the Jungle" is an expression that means "every man for himself", "anything goes", "might makes right", "survival of the strongest", "survival of the fittest", "kill or be killed", "dog eat dog" and "eat or be eaten".- The Jungle Book :...
. He argued that the antagonism
Antagonism
Antagonism is hostility that results in active resistance, opposition, or contentiousness.Additionally, it may refer to:*Antagonism , where the involvement of multiple agents reduces their overall effect...
between human
Human
Humans are the only living species in the Homo genus...
beings can only be overcome through a divine law
Divine law
Divine law is any law that in the opinion of believers, comes directly from the will of God . Like natural law it is independent of the will of man, who cannot change it. However it may be revealed or not, so it may change in human perception in time through new revelation...
, which he believed to have been sent through prophets
Prophets of Islam
Muslims identify the Prophets of Islam as those humans chosen by God and given revelation to deliver to mankind. Muslims believe that every prophet was given a belief to worship God and their respective followers believed it as well...
. This is also the position of the Ashari school, the largest school of Sunni theology. Averroes
Averroes
' , better known just as Ibn Rushd , and in European literature as Averroes , was a Muslim polymath; a master of Aristotelian philosophy, Islamic philosophy, Islamic theology, Maliki law and jurisprudence, logic, psychology, politics, Arabic music theory, and the sciences of medicine, astronomy,...
(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
Maqasid
Maqasid is the Arabic word for goals or purposes. In Islamic context, it can refer to the purposes of Islamic faith, zakat , pilgrimage or even of the Qur'an's and Sunnah's text....
or higher intents of the Islamic sharia
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
or to protect religion, life, property, offspring, and reason. The concept of natural law entered the mainstream of Western culture
Western culture
Western culture, sometimes equated with Western civilization or European civilization, refers to cultures of European origin and is used very broadly to refer to a heritage of social norms, ethical values, traditional customs, religious beliefs, political systems, and specific artifacts and...
through his Aristotelian commentaries, influencing the subsequent Averroist
Averroism
Averroism is the term applied to either of two philosophical trends among scholastics in the late 13th century: the Arab philosopher Averroës or Ibn Rushd's interpretations of Aristotle and his reconciliation of Aristotelianism with Islamic faith; and the application of these ideas in the Latin...
movement and the writings of Thomas Aquinas
Thomas Aquinas
Thomas Aquinas, O.P. , also Thomas of Aquin or Aquino, was an Italian Dominican priest of the Catholic Church, and an immensely influential philosopher and theologian in the tradition of scholasticism, known as Doctor Angelicus, Doctor Communis, or Doctor Universalis...
.
The Maturidi
Maturidi
In Islam, a Maturidi is one who follows Abu Mansur Al Maturidi's theology, which is a close variant of the Ash'ari theology . The Maturidis, Ash'aris and Atharis are all part of Sunni Islam, which makes up the overwhelming majority of Muslims...
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 drinking alcohol were all 'evils' which the human mind could know of according to al-Maturidi. The concept of Istislah
Istislah
Istislah is a method employed by Muslim jurists to solve problems that find no clear answer in sacred religious texts. It is related to the term مصلحة Maslaha, or "public interest"...
in Islamic law
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
bears some similarities to the natural law tradition in the West, as exemplified by Thomas Aquinas
Thomas Aquinas
Thomas Aquinas, O.P. , also Thomas of Aquin or Aquino, was an Italian Dominican priest of the Catholic Church, and an immensely influential philosopher and theologian in the tradition of scholasticism, known as Doctor Angelicus, Doctor Communis, or Doctor Universalis...
. However, whereas natural law deems good that which is known self-evidently to be 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
Al-Ghazali
Abu Hāmed Mohammad ibn Mohammad al-Ghazzālī , known as Algazel to the western medieval world, born and died in Tus, in the Khorasan province of Persia was a Persian Muslim theologian, jurist, philosopher, and mystic....
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.
Hobbes
By the 17th Century, the Medieval teleologicalTeleology
A teleology is any philosophical account which holds that final causes exist in nature, meaning that design and purpose analogous to that found in human actions are inherent also in the rest of nature. The word comes from the Greek τέλος, telos; root: τελε-, "end, purpose...
view came under intense criticism from some quarters. Thomas Hobbes
Thomas Hobbes
Thomas Hobbes of Malmesbury , in some older texts Thomas Hobbs of Malmsbury, was an English philosopher, best known today for his work on political philosophy...
instead founded a contractualist theory
Social contract
The social contract is an intellectual device intended to explain the appropriate relationship between individuals and their governments. Social contract arguments assert that individuals unite into political societies by a process of mutual consent, agreeing to abide by common rules and accept...
of legal positivism
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
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. It 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
Jeremy Bentham
Jeremy Bentham was an English jurist, philosopher, and legal and social reformer. He became a leading theorist in Anglo-American philosophy of law, and a political radical whose ideas influenced the development of welfarism...
's modifications on legal positivism
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
further developed the theory.
As used by Thomas Hobbes
Thomas Hobbes
Thomas Hobbes of Malmesbury , in some older texts Thomas Hobbs of Malmsbury, was an English philosopher, best known today for his work on political philosophy...
in his treatises Leviathan
Leviathan (book)
Leviathan or The Matter, Forme and Power of a Common Wealth Ecclesiasticall and Civil — commonly called simply Leviathan — is a book written by Thomas Hobbes and published in 1651. Its name derives from the biblical Leviathan...
and De Cive
De Cive
De Cive is a book by Thomas Hobbes published in 1642, and one of his major works.It anticipates the classical republican line of argument in the better-known Leviathan...
, natural law is "a precept
Precept
A precept is a commandment, instruction, or order intended as an authoritative rule of action.-Christianity:The term is encountered frequently in the Jewish and Christian Scriptures; e.g.:...
, or general rule, found out by reason
Reason
Reason is a term that refers to the capacity human beings have to make sense of things, to establish and verify facts, and to change or justify practices, institutions, and beliefs. It is closely associated with such characteristically human activities as philosophy, science, language, ...
, 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."
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, froward, 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, disregarding the traditional association of virtue with happiness, and likewise re-defining "law" to remove any notion of the promotion of the common good. Hobbes has no use for Aristotle
Aristotle
Aristotle was a Greek philosopher and polymath, a student of Plato and teacher of Alexander the Great. His writings cover many subjects, including physics, metaphysics, poetry, theater, music, logic, rhetoric, linguistics, politics, government, ethics, biology, and zoology...
'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"; 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." Rejecting Cicero
Cicero
Marcus Tullius Cicero , was a Roman philosopher, statesman, lawyer, political theorist, and Roman constitutionalist. He came from a wealthy municipal family of the equestrian order, and is widely considered one of Rome's greatest orators and prose stylists.He introduced the Romans to the chief...
's view that men join in society primarily through "a certain social spirit which nature has implanted in man," 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." 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."
Cumberland's rebuttal of Hobbes
The English cleric Richard CumberlandRichard Cumberland (philosopher)
Richard Cumberland was an English philosopher, and bishop of Peterborough from 1691. In 1672, he published his major work, De legibus naturae , propounding utilitarianism and opposing the egoistic ethics of Thomas Hobbes.Cumberland was a member of the latitudinarian movement, along with his friend...
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 Hugo Grotius
Hugo Grotius
Hugo Grotius , also known as Huig de Groot, Hugo Grocio or Hugo de Groot, was a jurist in the Dutch Republic. With Francisco de Vitoria and Alberico Gentili he laid the foundations for international law, based on natural law...
and Samuel Pufendorf "in the triumvirate of seventeenth-century founders of the 'modern' school of natural law." The eighteenth-century philosophers Shaftesbury
Anthony Ashley-Cooper, 3rd Earl of Shaftesbury
Anthony Ashley Cooper, 3rd Earl of Shaftesbury was an English politician, philosopher and writer.-Biography:...
and Hutcheson
Francis Hutcheson (philosopher)
Francis Hutcheson was a philosopher born in Ireland to a family of Scottish Presbyterians who became one of the founding fathers of the Scottish Enlightenment....
"were obviously inspired in part by Cumberland." Historian Jon Parkin likewise describes Cumberland's work as "one of the most important works of ethical and political theory of the seventeenth century." Parkin observes that much of Cumberland's material "is derived from Roman Stoicism
Stoicism
Stoicism is a school of Hellenistic philosophy founded in Athens by Zeno of Citium in the early . The Stoics taught that destructive emotions resulted from errors in judgment, and that a sage, or person of "moral and intellectual perfection," would not suffer such emotions.Stoics were concerned...
, particularly from the work of Cicero
Cicero
Marcus Tullius Cicero , was a Roman philosopher, statesman, lawyer, political theorist, and Roman constitutionalist. He came from a wealthy municipal family of the equestrian order, and is widely considered one of Rome's greatest orators and prose stylists.He introduced the Romans to the chief...
, 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
Epicureanism
Epicureanism is a system of philosophy based upon the teachings of Epicurus, founded around 307 BC. Epicurus was an atomic materialist, following in the steps of Democritus. His materialism led him to a general attack on superstition and divine intervention. Following Aristippus—about whom...
, who argued that morality was human, conventional and self-interested." 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." 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. 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." Cumberland concludes that actions "principally conducive to our Happiness" are those which promote "the Honour and Glory of God" and also "Charity and Justice towards men." Cumberland emphasizes that desiring the well-being of our fellow humans is essential to the "pursuit of our own Happiness." 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."
Liberal natural law
Liberal natural law grew out of the medievalMiddle Ages
The Middle Ages is a periodization of European history from the 5th century to the 15th century. The Middle Ages follows the fall of the Western Roman Empire in 476 and precedes the Early Modern Era. It is the middle period of a three-period division of Western history: Classic, Medieval and Modern...
Christian natural law theories and out of Hobbes'
Thomas Hobbes
Thomas Hobbes of Malmesbury , in some older texts Thomas Hobbs of Malmsbury, was an English philosopher, best known today for his work on political philosophy...
revision of natural law, sometimes in an uneasy balance of the two.
Hugo Grotius
Hugo Grotius
Hugo Grotius , also known as Huig de Groot, Hugo Grocio or Hugo de Groot, was a jurist in the Dutch Republic. With Francisco de Vitoria and Alberico Gentili he laid the foundations for international law, based on natural law...
based his philosophy of international law on natural law. In particular, his writings on freedom of the seas
Freedom of the seas
Freedom of the seas is a principle in the international law and law of the sea. It stresses freedom to navigate the oceans. It also disapproves of war fought in water. The freedom is to be breached only in a necessary international agreement....
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
God
God is the English name given to a singular being in theistic and deistic religions who is either the sole deity in monotheism, or a single deity in polytheism....
or that he does not care for human affairs." (De iure belli ac pacis, Prolegomeni XI). This is the famous argument
Argument
In philosophy and logic, an argument is an attempt to persuade someone of something, or give evidence or reasons for accepting a particular conclusion.Argument may also refer to:-Mathematics and computer science:...
etiamsi daremus (non esse Deum), that made natural law no longer dependent on theology.
John Locke
John Locke
John Locke FRS , widely known as the Father of Liberalism, was an English philosopher and physician regarded as one of the most influential of Enlightenment thinkers. Considered one of the first of the British empiricists, following the tradition of Francis Bacon, he is equally important to social...
incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government
Two Treatises of Government
The Two Treatises of Government is a work of political philosophy published anonymously in 1689 by John Locke...
. There is considerable debate about whether his conception of natural law was more akin to that of Aquinas
Thomas Aquinas
Thomas Aquinas, O.P. , also Thomas of Aquin or Aquino, was an Italian Dominican priest of the Catholic Church, and an immensely influential philosopher and theologian in the tradition of scholasticism, known as Doctor Angelicus, Doctor Communis, or Doctor Universalis...
(filtered through Richard Hooker
Richard Hooker
Richard Hooker was an Anglican priest and an influential theologian. Hooker's emphases on reason, tolerance and the value of tradition came to exert a lasting influence on the development of the Church of England...
) or Hobbes'
Thomas Hobbes
Thomas Hobbes of Malmesbury , in some older texts Thomas Hobbs of Malmsbury, was an English philosopher, best known today for his work on political philosophy...
radical reinterpretation, though the effect of Locke's understanding is usually phrased in terms of a revision of Hobbes upon Hobbesean contractualist
Social contract
The social contract is an intellectual device intended to explain the appropriate relationship between individuals and their governments. Social contract arguments assert that individuals unite into political societies by a process of mutual consent, agreeing to abide by common rules and accept...
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.
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. Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
, arguably echoing Locke, appealed to unalienable rights in the Declaration of Independence
United States Declaration of Independence
The Declaration of Independence was a statement adopted by the Continental Congress on July 4, 1776, which announced that the thirteen American colonies then at war with Great Britain regarded themselves as independent states, and no longer a part of the British Empire. John Adams put forth a...
, "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."
The Belgian philosopher of law Frank van Dun
Frank Van Dun
Frank Van Dun is a Belgian law philosopher and libertarian natural law theorist. He is associated with the law faculty of the University of Ghent....
is one among those who are elaborating a secular conception http://users.ugent.be/~frvandun/Texts/Logica/NaturalLaw.htm of natural law in the liberal tradition. Libertarian
Libertarianism
Libertarianism, in the strictest sense, is the political philosophy that holds individual liberty as the basic moral principle of society. In the broadest sense, it is any political philosophy which approximates this view...
theorist Murray Rothbard
Murray Rothbard
Murray Newton Rothbard was an American author and economist of the Austrian School who helped define capitalist libertarianism and popularized a form of free-market anarchism he termed "anarcho-capitalism." Rothbard wrote over twenty books and is considered a centrally important figure in the...
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." Ludwig von Mises
Ludwig von Mises
Ludwig Heinrich Edler von Mises was an Austrian economist, philosopher, and classical liberal who had a significant influence on the modern Libertarian movement and the "Austrian School" of economic thought.-Biography:-Early life:...
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." David Gordon
David Gordon (philosopher)
David Gordon is a libertarian philosopher and intellectual historian influenced by Rothbardian views of economics. He is a senior fellow at the Ludwig von Mises Institute and editor of "The Mises Review."...
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)."
However, a secular critique of the natural law doctrine was stated by Pierre Charron
Pierre Charron
Pierre Charron was a French 16th-century Catholic theologian and philosopher, and a disciple and contemporary of Michel Montaigne.-Biography:...
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."
Contemporary Catholic understanding
The Roman Catholic ChurchRoman Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church, with over a billion members. Led by the Pope, it defines its mission as spreading the gospel of Jesus Christ, administering the sacraments and exercising charity...
holds the view of natural law set forth by Thomas Aquinas
Thomas Aquinas
Thomas Aquinas, O.P. , also Thomas of Aquin or Aquino, was an Italian Dominican priest of the Catholic Church, and an immensely influential philosopher and theologian in the tradition of scholasticism, known as Doctor Angelicus, Doctor Communis, or Doctor Universalis...
, particularly in his Summa Theologica
Summa Theologica
The Summa Theologiæ is the best-known work of Thomas Aquinas , and although unfinished, "one of the classics of the history of philosophy and one of the most influential works of Western literature." It is intended as a manual for beginners in theology and a compendium of all of the main...
, and often as filtered through the School of Salamanca
School of Salamanca
The School of Salamanca is the renaissance of thought in diverse intellectual areas by Spanish and Portuguese theologians, rooted in the intellectual and pedagogical work of Francisco de Vitoria...
. This view is also shared by some Protestant churches.
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. Humans are capable of discerning the difference between good and evil
Evil
Evil is the violation of, or intent to violate, some moral code. Evil is usually seen as the dualistic opposite of good. Definitions of evil vary along with analysis of its root motive causes, however general actions commonly considered evil include: conscious and deliberate wrongdoing,...
because they have a conscience
Conscience
Conscience is an aptitude, faculty, intuition or judgment of the intellect that distinguishes right from wrong. Moral judgement may derive from values or norms...
. 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. Some contemporary Catholic theologians, such as John Wijngaards
John Wijngaards
Johannes Nicolaas Maria Wijngaards is a spiritual author and controversial Catholic theologian. Since 1977 he has been associated with public but loyal opposition to the authorities of the Catholic Church for their refusal to confer holy orders on women...
, dispute the Magisterium's interpretation of Natural Law as applied to specific points of sexual ethics, such as in the areas of contraceptives and homosexual unions.
To know what is right, one must use one's reason and apply it to Aquinas' precepts. This reason is believed to be embodied, in its most abstract form, in the concept of a primary precept: "Good is to be sought, evil avoided." 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 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.
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
Cardinal virtues
In Christian traditionthere are 4 cardinal virtues:*Prudence - able to judge between actions with regard to appropriate actions at a given time*Justice - proper moderation between self-interest and the rights and needs of others...
are acquired through reason applied to nature; they are:
- PrudencePrudencePrudence is the ability to govern and discipline oneself by the use of reason. It is classically considered to be a virtue, and in particular one of the four Cardinal virtues .The word comes from Old French prudence , from Latin...
- JusticeJustice (virtue)Justice is one of the four cardinal virtues in classical European philosophy and Roman Catholicism. It is the moderation between selfishness and selflessness....
- TemperanceTemperance (virtue)Temperance has been studied by religious thinkers, philosophers, and more recently, psychologists, particularly in the positive psychology movement. It is considered a virtue, a core value that can be seen consistently across time and cultures...
- Fortitude
The theological virtues
Theological virtues
Theological virtues - in theology and Christian philosophy, are the character qualities associated with salvation, resulting from the grace of God, which enlightens human mind.- In the Bible :The three theological virtues are:...
are:
- FaithFaith in ChristianityFaith, in Christianity, has been most commonly defined by the biblical formulation in the Letter to the Hebrews as "'the assurance of things hoped for, the conviction of things not seen". Most of the definitions in the history of Christian theology have followed this biblical formulation...
- HopeHope (virtue)Hope is one of the three theological virtues in Christian tradition. Hope being a combination of the desire for something and expectation of receiving it, the virtue is hoping for Divine union and so eternal happiness...
- CharityCharity (virtue)In Christian theology charity, or love , means an unlimited loving-kindness toward all others.The term should not be confused with the more restricted modern use of the word charity to mean benevolent giving.- Caritas: altruistic love :...
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.
In contemporary jurisprudence
In jurisprudenceJurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
, natural law can refer to the several doctrines:
- That just lawJusticeJustice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
s are immanentImmanenceImmanence refers to philosophical and metaphysical theories of divine presence, in which the divine is seen to be manifested in or encompassing of the material world. It is often contrasted with theories of transcendence, in which the divine is seen to be outside the material world...
in nature; that is, they can be "discovered" or "found" but not "created" by such things as a bill of rightsBill of rightsA bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
; - 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
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
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 law. Legal interpretivism, famously defended in the English speaking world by Ronald Dworkin
Ronald Dworkin
Ronald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...
, claims to have a position different from both natural law and positivism.
Besides utilitarianism
Utilitarianism
Utilitarianism is an ethical theory holding that the proper course of action is the one that maximizes the overall "happiness", by whatever means necessary. It is thus a form of consequentialism, meaning that the moral worth of an action is determined only by its resulting outcome, and that one can...
and Kantianism
Kantianism
Kantianism is the philosophy of Immanuel Kant, a German philosopher born in Königsberg, Prussia . The term Kantianism or Kantian is sometimes also used to describe contemporary positions in philosophy of mind, epistemology, and ethics.-Ethics:Kantian ethics are deontological, revolving entirely...
, natural law jurisprudence has in common with virtue ethics
Virtue ethics
Virtue ethics describes the character of a moral agent as a driving force for ethical behavior, rather than rules , consequentialism , or social context .The difference between these four approaches to morality tends to lie more in the way moral dilemmas are...
that it is a live option for a first principles
First principles
In philosophy, a first principle is a basic, foundational proposition or assumption that cannot be deduced from any other proposition or assumption. In mathematics, first principles are referred to as axioms or postulates...
ethics theory in analytic philosophy
Analytic philosophy
Analytic philosophy is a generic term for a style of philosophy that came to dominate English-speaking countries in the 20th century...
.
The concept of natural law was very important in the development of the English common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. In the struggles between Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
and the monarch
British monarchy
The monarchy of the United Kingdom is the constitutional monarchy of the United Kingdom and its overseas territories. The present monarch, Queen Elizabeth II, has reigned since 6 February 1952. She and her immediate family undertake various official, ceremonial and representational duties...
, Parliament often made reference to the Fundamental Laws of England
Fundamental Laws of England
In the 1760s William Blackstone described the Fundamental Laws of England in Commentaries on the Laws of England, Book the First – Chapter the First : Of the Absolute Rights of Individuals as "the absolute rights of every Englishman" and traced their basis and evolution as follows:*Magna Carta...
which were at times said to embody natural law principles since time immemorial
Time immemorial
Time immemorial is a phrase meaning time extending beyond the reach of memory, record, or tradition, indefinitely ancient, "ancient beyond memory or record"...
and set limits on the power of the monarchy. According to William Blackstone
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
, 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
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
, like Jeremy Bentham
Jeremy Bentham
Jeremy Bentham was an English jurist, philosopher, and legal and social reformer. He became a leading theorist in Anglo-American philosophy of law, and a political radical whose ideas influenced the development of welfarism...
, 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
John Finnis
John Finnis , is an Australian legal scholar and philosopher, specializing in the philosophy of law. He is Professor of Law at University College, Oxford and at the University of Notre Dame, teaching jurisprudence, political theory, and constitutional law...
, is based in Oxford, but there are also Americans Germain Grisez
Germain Grisez
Germain Gabriel Grisez is a Catholic moral theologian. Grisez is the author of the three-volume Way of the Lord Jesus. Grisez moves between the spheres of philosophy and theology, articulating a new form of natural law thinking, consonant with the teachings of the Roman Catholic magisterium.Grisez...
, Robert P. George
Robert P. George
Robert P. George is McCormick Professor of Jurisprudence at Princeton University, where he lectures on constitutional interpretation, civil liberties and philosophy of law. He also serves as the director of the James Madison Program in American Ideals and Institutions...
, and Canadian Joseph Boyle. All have tried to construct a new version of natural law. The 19th-century anarchist
Anarchism
Anarchism is generally defined as the political philosophy which holds the state to be undesirable, unnecessary, and harmful, or alternatively as opposing authority in the conduct of human relations...
and legal theorist, Lysander Spooner
Lysander Spooner
Lysander Spooner was an American individualist anarchist, political philosopher, Deist, abolitionist, supporter of the labor movement, legal theorist, and entrepreneur of the nineteenth century. He is also known for competing with the U.S...
, 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
Self-evidence
In epistemology , a self-evident proposition is one that is known to be true by understanding its meaning without proof....
and intrinsically worthwhile, and states that these goods reveal themselves as being incommensurable
Commensurability (ethics)
In ethics, two values are incommensurable when they do not share a common standard of measurement.Philosophers argue over the precise nature of value incommensurability, and discussions do not always exhibit a consistent terminology...
with one another.
The tensions between natural law and positive law have played, and continue to play a key role in the development of international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
.
External links
- Lex Naturalis, Ius Naturalis: Law as Positive Reasoning and Natural Rationality by Eric Engle, (Elias Clarke, 2010).
- Stanford Encyclopedia of PhilosophyStanford Encyclopedia of PhilosophyThe Stanford Encyclopedia of Philosophy is a freely-accessible online encyclopedia of philosophy maintained by Stanford University. Each entry is written and maintained by an expert in the field, including professors from over 65 academic institutions worldwide...
:- The Natural Law Tradition in Ethics, by Mark Murphy, 2002.
- Aquinas' Moral, Political, and Legal Philosophy, by John FinnisJohn FinnisJohn Finnis , is an Australian legal scholar and philosopher, specializing in the philosophy of law. He is Professor of Law at University College, Oxford and at the University of Notre Dame, teaching jurisprudence, political theory, and constitutional law...
, 2005. - Natural Law Theories, by John Finnis, 2007.
- Aquinas on natural law
- Natural Law explained, evaluated and applied A clear introduction to Natural Law
- Catholic Encyclopedia "Natural Law"
- Internet Encyclopedia of Philosophy Entry 'Natural Law' by Kenneth Einar Himma
- Daniel Z. Epstein "Law's 'I'" 2007.
- McElroy, WendyWendy McElroyWendy McElroy is a Canadian individualist anarchist and individualist feminist. She was a co-founder along with Carl Watner and George H. Smith of The Voluntaryist in 1982.-Sex-positive:...
The Non-Absurdity of Natural Law, The FreemanThe FreemanThe Freeman: Ideas on Liberty is one of the oldest and most respected libertarian journals in the United States. It is published by the Foundation for Economic Education . It started as a digest sized monthly study journal; it currently appears 10 times per year and is a larger-sized magazine. FEE...
, February 1998, Vol. 48, No. 2, pp. 108–111