Natural Law Essay, Research Paper
Natural Law
Natural Law in philosophy, is the system of right or justice held to be common to all humankind and derived from nature rather than from the rules of society, or positive law. Throughout the history of the concept, there have been disagreements over the meaning of natural law and over its relation to positive law.
Aristotle held that what was “just by nature” was not always the same as what was “just by law”; that there was a natural justice valid everywhere with the same force and “not existing by people’s thinking this or that”; and that appeal could be made to it from the positive law. He drew his instances of the natural law, however, chiefly from his observation of the Greeks in their city-states, with their subordination of women to men, of slaves to citizens, and of barbarians to Hellenes. The Stoics, on the other hand, conceived an entirely egalitarian law of nature in conformity with the “right reason,” or Logos, inherent in the human mind. The Roman jurists paid lip service to this notion, and St. Paul seems to reflect it when he writes of a law “written in the hearts” of the Gentiles (Romans 2:14-15).
St. Augustine of Hippo took up the Pauline mention and developed the idea of man having lived freely under the natural law before his fall and his subsequent bondage under sin and the positive law. Gratian in the 11th century simply equated the natural law with the divine law, that is, with the revealed law of the Old and the New Testament, in particular the Christian version of the Golden Rule.
St. Thomas Aquinas propounded an influential systematization. The eternal law of the divine reason, he maintained, though it is unknowable to us in its perfection as it is in God’s mind, is yet known to us in part not only by revelation but also by the operations of our reason. The law of nature, which is “nothing else than the participation of the eternal law in the rational creature,” thus comprises those precepts that humankind is able to formulate, namely, the preservation of one’s own good, the fulfillment of “those inclinations which nature has taught to all animals,” and the pursuit of the knowledge of God. Human law must be the particular application of the natural law.
Other scholastic philosophers, for instance John Duns Scotus, William of Ockham, and, especially, Francisco Su rez, emphasized the divine will instead of the divine reason as the source of law. This “voluntarism” influenced the Roman Catholic jurisprudence of the Counter-Reformation, but the Thomistic doctrine was later revived and reinforced to become the main philosophical ground for the papal exposition of natural right in the social teaching of Leo XIII and his successors.
The epoch-making appeal of Hugo Grotius to the natural law belongs to the history of jurisprudence. But whereas his fellow Calvinist Johannes Althesius(1557-1638) had proceeded from theological doctrines of predestination to elaborate his theory of law binding on all peoples, Grotius insisted on the validity of the natural law “even if we were to suppose . . . that God does not exist or is not concerned with human affairs.” A few years later Thomas Hobbes was arguing not from the “state of innocence” in which man had lived in the biblical Eden but from a savage “state of nature” in which men, free and equal in rights, were each one at solitary war with every other. After discerning the right of nature (jus naturale) to be “the liberty each man hath to use his own power for the preservation of his own nature, that is to say, of life,” Hobbes defines a law of nature (lex naturalis) as “a precept of general rule found out by reason, by which a man is forbidden to do that which is destructive of his life” and then enumerates the elementary rules on which peace and society can be established. Grotius and Hobbes thus stand together at the head of that “school of natural law” which, in accordance with the tendencies of the Enlightenment, tried to construct a whole edifice of law by rational deduction from a fictitious “state of nature” followed by a social contract. In England, John Locke departed from Hobbesian pessimism to the extent of describing the state of nature as a state of society, with free and equal men already observing the natural law. In France, where Montesquieu had argued that natural laws were presocial and were superior to those of religion and of the state, Jean-Jacques Rosseau postulated a savage who was virtuous in isolation and actuated by two principles “prior to reason,” self-preservation and compassion (innate repugnance against the sufferings of others).
The Declaration of Independence of the United States refers only briefly to “the Laws of Nature” before citing equality and other “unalienable” rights as “self-evident.” The French Declaration of the Rights of Man and Citizen asserts liberty, property, security, and resistance to oppression as “imprescriptible natural rights.” The philosophy of Immanuel Kant renounced the attempt to know nature as it really is, yet allowed the practical or moral reason to deduce a valid system of right with its own purely formal framework; and Kantian formalism contributed to the 20th-century revival of naturalistic jurisprudence.
On the level of international politics in the 20th century, the assertion of human rights was the product rather of an empirical search for common values than of any explicit doctrine about a natural law.
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