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NaturalLaw School - Draft Notes


RWT - Lecture Notes '99
Student Version

JURISPRUDENCE
(Draft Lecture Notes Dr. R.W. Tenga 3rd Yr98/99)1
1.1

WHAT IS JURISPRUDENCE?
-

(i)

No definition agreed by writers


Latin: literally means knowledge it is not
i.e. not a study of the actual rules of law proper.

Austin-

It is a study of position law i.e. law as it is and not what it ought to be.
Divided JURISPRUDENCE into 2 categories
General Juris -Those aspects common to all systems (bottomed in the
common nature of men)
Particular Juris-Science of any particular system of law (any portion of
system of law)

(ii)

Jolowicz-It is a general and theoretical discussion of principles of law Vis-a vis the actual
study of principles/or rules of law.

(iii)

Sometimes referred to as 'science of law' or 'philosophy of law' within bourgeois


literature. So the definition is a problem
The differences stem from differences in the world outlook - each one takes.

(iv)

Friedman
-

(v)

3 categories on western jurisprudence


Legal philosophy proper (legal ideals as basis of
the system)
Analytical Jurisprudence (legal techniques)
Sociological Philosophy (analysing functioning legal principles in their
social function in society)

Conclusion
We are not going to study actual rules but examine principles, theories, and philosophies
behind all the legal
rules.

1.2

RELEVANCE OF JURISPRUDENCE

Our legal system is based on the common law tradition


There was no philosophical basis for the British legal system
Law was regarded as a non-academic discipline. It was never taught at the Universities.
A lawyer was regarded as a technician.
(i)

All academic disciplines must be able to instil a capacity for critical thought.

(ii)

A lawyer must be able to situate law in a social context i.e. law must be learnt in
connection with other disciplines and aspects of society.

Draft Lecture Notes are for Students Guidance only in the Class and Seminars, and are not to be quoted.

1.3

Natural Law School - Draft Notes


RWT - Lecture Notes '99

(iii)

To be critical of legal rules we must know the assumptions and underlying


principles and aspects of society.

(iv)

To know situations of law reform (law application) we must know law in action
from a clear social standpoint.

How does the law reflect the social relations, social change etc. could be tackled
with the help of Jurisprudence.

JURISPRUDENCE AS A SOCIAL SCIENCE

Science-observation of empirical facts, formulation of hypothesis, testing and verification Is it possible in social science? (Observation of human behaviour and not external here)
Basis of social science = Bourgeois materialist relations = which is not scientific.

1.4 JURISPRUDENCE AS IDEOLOGY


-

The concept of Ideology in MARXISM refers generally to social consciousness of life


practice of particular classes in society.

Life practice/experiences of different classes are not the same. They are reflected in the
position and process of production occupied by that class.

This ideology, therefore, is only a partial reflection of reality (contents, rationalisation and
justification for the role it plays in that society) BECAUSE it is the material reflection of
that class.

IDEOLOGY therefore is not all false consciousness. It is both reality and falsity.
Depending, it may be real or false as seen from the eyes or social perspective or interest of
a particular class.
Conclusion:

1.5

(i)

Law can not be seen in isolation, it must be seen from the


social perspective;

(ii)

Law and Jurisprudence have a class content, essentially


ideological basis;

(iii)

Jurisprudence and law have no ideas of their own. Have


their history in the economy.

Bourgeois Jurisprudence is necessarily tied up with


bourgeois philosophy.

MAJOR ELEMENTS OF A LEGAL THEORY


(a)

(b)

A Concept of Law:
definition of law
sources of law
relation to other normative systems, e.g. Morals
relation to institutions such as the State
A Theory of Interpretation:
meaning of rules

(c)
(d)

NaturalLaw School - Draft Notes


RWT - Lecture Notes '99
Student Version

rules of interpretation - literal, golden, mischief rule, etc..


A Theory of adjudication:
self help, avoidance, revenge/vendettas, mediation, reconciliation,
arbitration adjudication, etc.
A Theory of Value:
a concept of justice and its relevance
relation between law and morals
quality as a benchmark for evaluation of norms beyond the
'objective/subjective' dichotomy.

NATURAL LAW
2.1 Natural law - an overview
2.2

Natural Law Theory and Its Major Concepts (Ancient theories of Natural law)

2.3

Natural Law in the Middle Ages

2.4

The Classical Era of Natural Law

2.5

Natural law in N. American Jurisprudence

2.6

Revival of natural law - the democratic content and religious rights etc.

2.7

Appraisal of Natural Law- Marxist critique

AIM: Historically this has been a search by mankind for absolute justice (failure)

Natural Law School - Draft Notes


RWT - Lecture Notes '99

(i)

N.L. notions have been changing now and them due to changes in social and political
conditions.

(ii)

One thing however has not changed throughout the appeal to something higher than
positive law. (Natural rights, Inalienable rights, Human rights, Bill of rights)

(iii)

Object of this appeal -Sometimes as justification of existing authority. Sometimes as a


revolt against it.

(iv)

N.L. has been used in many ways, functions, and struggles.


-Vs. absolutism for individual freedoms
-Vs. Fascism
-Vs. Feudalism for capitalism etc.

Engels: "Natural law is but the ideologised, glorified expression of the existing socio-economic
expressions"
Ross (in Finch pg.42)"Like a harlot, natural law is at the disposal of everyone. The ideology does
not exist that cannot be defended by an appeal to the law of nature".
(v)

Natural law therefore is not a mere theoretical speculations - it has often heralded
powerful political and legal developments

The above shows the historical phenomenon of Natural law and their economic
context.

Natural law in all its forms has been the basis of legal idealism (in the bourgeois
context)

Two Roles to be identified


(i)

Radical role to change the status Quo Engels says N.L. in its Revolutionary Role

(ii)

Conservative role, natural law has been used to justify, rationalise the existing
order by appearing to divine power i.e. use N.L to defend or in the interest of the
status quo. i.e. Reactionary Role.

Q-Can N.L. still play the radical role in the present era?
e.g. Role of Muslim fundamentalists in Iran and Algeria? Church's Role in S. Africa and
South America
DEFINITION
N.L School has a long history in the study of Jurisprudence. Almost all Ancient
theories on law were based on this tradition styled as Natural law. (See Lloyd 5 Ed.
92-129 Friedman 5Ed 95-103)

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-

Before the set up of the distinctive modern social institutions nothing was divorced
from Nature (Natural structures)

Law and its institutions appeared to form part of the Natural Order and it is from
this conception that such institution could be justified.

Later on the definition, tradition or justification of the doctrine became more


complex & abstract but the fundamental justification was that law had to adhere
to a natural criteria

We can conveniently define the N.L. Tradition as that tradition which simply
associates the existence of legal conceptions and institutions to the dominance
of what is described as natural
-

2.2

NaturalLaw School - Draft Notes


RWT - Lecture Notes '99
Student Version

This is too simple & leads to a no of Question. However we shall try to


identify the leading elements of the Natural Law doctrine.

Elements of the Natural Law Doctrine


There are three main tenets and directions of the right that are associated historically with
the N.L. Doctrine.
(i)
(ii)
(iii)

N.L. Doctrine
The state of nature
The status of positive law

State of Nature:
It is described as prehistoric (primordial) pre societal phase of human society - where certain
minimum principles are established in relation to existence and orderliness of all things. The
author of these may be a god or internal logic of existence etc.
The first principles from the basic Organisational structures for all forms of existence. Human
society has therefore to conform to these basis structures.
In politics, ethics and law, human principles must be finally subjected to the first principles
originating from the state of nature.
As to what are the essential elements which make up the state of Nature has depended on the
definition given in each historical epic.
(Ancient philosophers did not attempt deal with this Q. science not yet fully developed. Middle
Ages - tried to answer this see, Thomas Hobbles, John Locke Jean Rousseau)
The Natural Code:
The fact that there is a natural standard which is a criterion of reference to which positive law can
be judged has been taken to mean that the standards themselves possess the characteristics of a
legal code.
Any N.L. theory would present this "pre-existing, inherent or higher code" as a complex set of
rules or precepts against which existing codes can them be matched. Therefore the laws which
would come out of this comparative exercise would of necessity be a universal system of law.

Natural Law School - Draft Notes


RWT - Lecture Notes '99

Examples:
A. The Corpus Iuris Civilis
The Ancient Roman Corpus Iuris Civilis (completed in 534 by Byzantine lawyers) was supposed
to represent the Universal system of law.
The C.I.C. comprises 3 works; The Institutes a short educational handbook. The digest being
collection of excerpts or fragments from earlier jurists and the Codex or codification of Imperial
constitution.
These Roman codes have been of great influence to all modern codifications, especially in private
law.
The ancient Roman conception of law categorised 3 types of laws.
1.

The law of the state, which expresses the interest of one particular community ius civile

2.

The law of nations ius gentium which men have devised for their mutual intercourse.

3.

The law of nature ius naturale. The law which expresses a higher and more permanent
standard, and which corresponds to that which is always good and equitable.

B.

The corpus iuris canonici.


The Church Fathers and Thomas Acquinas' Summa Theologica.

Mankind is ruled by two laws Natural Law and Custom. Natural Law is that which is
contained in the scriptures and Gospel.

Later in middle ages formed basis of cannon law with an argument that Natural Law is
divine revelation on how to conduct human affairs.
"Because of its divine character, N.L. is absolutely binding and overrules all other laws. It
precedes them in time, because it came into existence with the very creation of man as a
rational being, nor does it vary in time but remains unchangeable.
Natural law absolutely prevails in dignity over customs and constitutions. Whatever has
been recognised by usage or laid down in writing, if it contradicts natural law must be
considered "null and void"
d'Entreves p.38.

The medieval church fathers also adopted this kind of thinking. They proposed 2 kinds of
law: Divine laws & Human laws Jus divina & Jus Humana.

The Status Of Positive Law


Julius Stone "Human Law and Human Justice" London Exeven 1965 pp. 74-81
"Natural Law as a censor of the Positive Legal Order"
d'Entreves 2nd Dep.7 "The Ideal Law" p. 93-107 & cap. 4 "The Theory of Rights" p. 51-61

NaturalLaw School - Draft Notes


RWT - Lecture Notes '99
Student Version

The last basic element to the N.L doctrine seem to be generally that conformity to N.L. is the
criterion not merely of a just law but of law itself.
That means the formal validity criteria is not adequate for a definition of law; rather there must be
conformity to an extra-legal criteria of evaluation. Austin the founder of Analytical position
argues that, "their existence of law is one thin; its merits or demerits another"
Example:

Natural Rights and the social contract.


(Positive law and Inherent Rights)

This argument is seen clearly where positive law is in contravention to certain fundamental rights
that are taken to be natural. It is therefore important to consider the notion of inherent Rights as
an example where positive law has to conform to Natural Law.
You are familiar with theorists like Hobbes, Locke, Rousseau and their conception of the State of
Nature. They have argued that certain rights especially those related to human preservation or
protection of life are inherent.
These philosophical arguments found practical application in the Bourgeois constitutions of the
18th and 19th century.
The Social Contract (later the constitution) had to protect these fundamental rights and positive
law could not, without qualification contradict such rights.
-

Has a look at the French declaration of Rights of Man adopted by the French National
Assembly on 26th August 1789, opened the way to the French Revolution.
(Quote it - d'Entreves 2nd p.51)

The American Declaration of Independence of 1776 is of the same tenor (tone). Its
opening paragraph recounts (Quote it - d'Entreves p.63) Tanzania Bill of Rights in Const.
African Charter on Peoples & Human Rights etc.

What we see here is that the modern theory of Natural Rights is a unique development of the
bourgeois revolutions.
And according to d'Entreves, the major characteristics of this theory are 3
1.

The First is rationalism


Natural Rights are conceived as the equivalent of simple and indisputable principles.
These are like truths so obvious that they do not need discussion or justification.

2.

The second is individualism


The rights refer to the "natural, inalienable rights of man" and it further elaborated in
the French Declaration that "men are born and remain free and equal in rights"
Friedman 5th Ed. P.117-123.

3.

Third is that the theory is one of radicalism. Constitutions, states, etc. are there to
preserve the basic rights if they do not it is the right of people, infact a duty, to abolish
them.

Natural Law School - Draft Notes


RWT - Lecture Notes '99

The kind of radicalism we are talking about is based on the constitutional assumption that
the state is set up to protect inherent rights. Once it fails to do so citizens have a right to
disobey.
Therefore, we can say that the modern N.L. Doctrine is a vindication of the rights of man,
his value as an individual, and so once his rights are not respected he has a right and duty
to rebel.
d'Entreves in discussing the aspect of N. Rights (pp. 59-62) wonders how the radicalism
came about?
This is socio-economic and may be we can explain it better than him. But there is one
significant point he is making that the modern theory of N.L. was not, properly speaking,
a theory of law at all, but a theory of Rights. And it is these rights which had to be
vindicated by revolution, by the constitution and by Natural Law.
So in any talk on Positive law we have to remember that such positive law has to be
judged under the standards of Natural Rights.

PHASES IN DEVELOPMENT OF N.L


Ancient Theories in N.L.
Greece(based on) - Eurocentric nature of Western writers of philosophers.
No distinction b/h law and Religion.
Law essentially divine.
Law of the king devised from the divine law
Reality Vs. Idealism (Conflict)
5th c. Greek 'Philosophy underwent an important change. If broke away from religion.
Why did the philosophy undergo such a change?
Look at the Social base.
Social set up by then - have Greek city states.
Leaving the Bronze Age - Iron Age
Discovery of Iron tools in agriculture - lay foundation for more independence and
individuality which had never been seen before.

NaturalLaw School - Draft Notes


RWT - Lecture Notes '99
Student Version

Invention of coinage. Facilitated international trade & commodity exchange.

Development of alphabet, i.e. development of literacy (allowed individual list outlook in


the philosophical world) formerly monopoly of religious institutions only. Possible now
for individuals to become philosophers.

City states political economy still depended on slave labour


contradiction: reflected in its polity & philosophy
Slaves vis--vis the free man

Individual slave master v. individual craftsmen

a degree of commodity exch. - merchants

Freedom restricted to citizens: slaves, women & aliens excluded

Plato: Human beings essentially unequal some born to Rule, ruled & to produce
1.
2.
3.

Men of Gold - to rule (Philosophers)


Men of Silver- military guardian of the state assist the
Men of Iron & Copper - forming the producers or the

rulers
ruled classes

Reflects
Greek Society - Citizens & Slaves
II PHASE

(THE STOICS) ROMAN JURISPRUDENCE


N.L. - Universal
Allowed the Romans 2 things
1.
To spread their Roman Law throughout
2.
To absorb certain customs & rules of the ruled people
jurisprudence

into

their

own

Greek philosophers lended to be parochial because of Roman Imperialism.


Ideas of equality applied granted citizenship to slaves but still ruled of Romans.
III PHASE
N.L. MIDDLE AGES
Between the collapse of the ancient civilisation and the middle ages N.L. kept alive by the fathers
of the church.
Doctrine underwent immense change in content & meaning
-

centrality of the church and christening


church regarded as the higher institution in the order

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law & state not inherently good but necessary

St. Augustine; St. Thomas Acquinas


IV PHASE2
Classical Era of N.L
Decline of Feudalism & Rise of capitalism in Europe (Long drawn process)
2. Phases
i.

16-18th Bourgeoisie at loggerheads with Feudalism


N.L. Philosophy takes on the radical form (playing revolutionary role)

ii.

19th C. (1900-1940's) Bourgeoisie consolidates itself

1st period
-

Industrial Revolution proceeded by the Commercial Revolution.


International trade at its apex Merchants constituted an important place in society. (Trade
based on commodity)
-

Commodity relations began to dissolve the organic & status (personal) relations of
feudalism

atomistic relations now

A system containing bourgeois ideologies and individualism.

In law the legal reflection of this atomistic relations - contract


Philosophically this is reflected in the Social K.
Important Features of classical N.L

1.

Central theme of classical N.L. based on Reason and rationality.


N.L. could be derived from Human reason.
(Attack on Feudalism lords who were dominant during the time - by emphasising on the
secular nature of the ideology)

2.

Philosophers divorced theology from Law.


More away from the theocratic order
- attach on the concept of supremacy of the church

3.

An increasingly refined emphasis from the collective nature of the feudal era to
individualistic notions of the bourgeois era.

4.

On Investigation there is a shift from theology to empiricism (causal linked) use of


scientific thinking in law - influence from the development of science.

See a Definitive assessment of the period by; Tenga & Lamwai The Dilemma of Marxist Interpretation of Legal Theory
mimeo, UDSM, Faculty of Law, 1978.

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Student Version

ON THE SOCIAL CONTRACT


Men passed from a state of nature to a State of Society by means of a CONTRACT in which
they undertake to respect each other and live in peace.
People also undertake to obey a goal they have chosen.
S.C. Theory served divergent political aims especially to justify absolutism and democracy
e.g.

Hugo Grotius 1583-1645, a Dutch Jurist .


Internally S.C for justification of the absolute duty of obedience of the people to the govt.
Internationally create a basis for legally binding & stable relations among states.

Locke (1632-1704)
Used notions of S.K in order to demonstrate the transfer of all natural rights to authority
to justify govts. by majority and to show that govts. hold their power in trust with the duty
to preserve the individual rights.
His ideas formed basis for reaction vs. absolutism and preparation for parliamentary
democracy
18th C. S.C
N.L. coming to an end & S.C. theory could not survive the 18thc.
(i)

an individualistic conception of society was giving way to a collective conception


(Laissez faire-monopoly capitalism)

(ii)

Development of science & technology fare strength & emphasis to empirical


methods

(iii)

The new & increasingly complex European society demanded a comparative &
sociological approach to problems of society

Rousseau Montesquieu, etc. not only helped promote transmission from


individualism to collectivism but also destroyed the foundations of N.L.

19th C.

Hostile to N.L. Theories

Utilitarianism, positivism, new approach to legal problems (empirical inductive etc.),


abandonment of stare decis and the rationale of the ratio decidendi.
England: Struggle b/n & parliament for legislative supremacy
Marks 1st victory for parliamentary supremacy & defeat of higher law ideas
N. America
Revival of N.L - Theories

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HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS


To understand these we have to situate them in the context of the socio-economic development
and specifically in the event of the rising bourgeoisie.
Feudal era - basically natural economy prevailing individual

status etc.

Bourgeois era- Capitalist economy; legal relations based on contract vs. status etc.
Historically the cry for the fundamental freedoms life, liberty, fraternity & property was a cry
for a Bourgeois capitalist order.
The resort has always been to N.L - where the right to life, liberty and property were
conceptualised as being inalienable. And this enabled the successful execution of the Bourgeois
Revolutions in Europe as well as the American wars of Independence.
Examples:
i.

French Revolution
Where the main contradiction was between the new economic class and the old political
class (superstructure was not in line with economic base which had by now greatly
advanced and expanded)
The precepts advanced by this class had their philosophical root in N.L. (all men are born
free; right to liberty etc. - resistance to oppression) These & others expressed the
immediate interests of the bourgeois class but couched in an international language.

ii.

American Declaration of Independence


America did not have a feudal past
Had immigrants, running from persecutions from Europe, others taken as slaves
Indigenous people - Red Indians
Later colonised by the British
The declaration of Independence in 1776 was also a declaration of war which
ended in 1793 when a truce was signed & USA born.
In the Declaration all men are crated equal (basing on the N.L. Premises)
We can say from the two examples that Life, Liberty, and Property are the pillars
of Human Rights. Its the Property which has played the central role.

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Student Version

In 1917 with the Russian Revolution there is a break in the hegemonic meaning of
private property.
We now witness democratic & socialist notions to these concepts.
e.g.

(i)
(ii)
(iii)

Right of nations to self-determination (attack to hegemonic tendencies of


imperialism)
Principles of self determination and
National sovereignty over its resources (attack on a total or unrest restricted right
to private property)
(Q. of compensation on nationalisation)

ENFORCEMENT OF BASIC RIGHTS


[(1)Robert Martin Personal Freedom & the law in TZ on Bill of Rights (2) Lloyd: 121-169; (3)
materials by C.M. Peter; and I.G. Shivji on Human Rights]
They can be evaluated at Two levels
1.

Right of citizens to resist these rules of positive law which are in breach of natural
law
(a)
(b)

2.

when total social upheaval is involved (Revolution)


where changes in terms of reform are needed
-civil disobedience, individual protest, mass resistance - in breach of
positive law.

The state where it protects individuals by embodying Natural Law precepts in the
positive law itself - (thus becoming rules of legality) (Bourgeois consolidated itself.
No more appealing to N.L) Appeal now is to legality - which is later jolted in
fascism which is a breach of N.L. rules)
Lesson: Law in itself does not ensure democracy. It is the social & political
struggles of the people to achieve certain goals that are embodied in law

ON BILL OF RIGHTS : What does it do?


No such thing as unlimited/unrestricted freedom. Under American constitution, supreme
Court can declare a piece of state legislation in breach of the constitution Null & Void.
In Tanzania likewise, the Courts can declare a statute in breach/contravention of the
constitution, illegal.
We must remember however that the freedoms embodied in the constitutions have a class
(content) interest; as the law is never neutral.

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African situation (Shivji)


Countries emerging from colonialism. Most had weak burgesses - settle & commercial
bourgeoisie
At Independence 2 tendencies
1.

Forces representing foreign bourgeoisie - call for Bill of Rights meant for
protection of settler & foreign property e.g. Kenya

2.

Nationalist tendency of the Petty bourgeoisie dependent on massive assistance from


the state. Out of it arise the state bourgeoisie enshrined in socialist or nationalist
ideologies. No wish to tie itself - no Bill of Rights

In both new developments leave little difference capitalist hegemony (Foreign capital)
remains at the base.
The bourgeoisie cannot accept strong opposition of Kenya. In other situations development of state monopolisation and no opposition is left to thrive.
Rise of dictatorships at the expense of mass struggle.
Bourgeois democracy Vs. Peoples democracy class content of democracy is very
important and must be looked at. Talk about rights & freedoms must be taken in the two
perspectives.
Q. at the ideological level to what extent can N.L. play a Revolutionary role in Africa?
(Iran vs. Shah)
Some Literature and Sources for Consideration:
1.

The state of the constitution and the constitution of the state in


Tanzania(Shivji)

2.

A.L. Morton: A peoples History of England

3.

D. Thomas : Europe since Napoleon Part I

4.

Huberman: We the People

5.

UN Declaration a Human Rights 1948

6.
7.
8.

UN Revolution a permanent sovereignty


OAU charter on Human & peoples Rights.
[extra pieces in the area to be added annually or refer to Course Outline]

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Student Version

St.Augustine was the classical representative of the early church doctrine. In his work the City of
God he argued that the social institutions of men were sinful - including the state. Man could only
justify his institutions by creating those which will be like the city of God.
-

Augustine's view was taken to be overly restrictive

The Medieval Church thinking that revolutionises the Natural Law doctrine by building up a
rational foundation of ethics is that of ST. Thomas Acquinas.
-

In his works human reason is given the capability of founding a system of natural ethic
based on natural Law.

In his classical work Summa Theologica Acquinas defines Law as:


"A rational ordering of things which concern the common good
promulgated by whom ever is charged with the care of
community" Lloyd 15l - l56 ( l53 )
Acquinas was not as absolute as St. Augustine. He agreed that the ultimate foundation of all law
is Divine law but then human indignation and reason had a certain space in the realisation of law.
Human law could not be simply evil. According to him there were & types of laws.
1.

Eternal Law (Lex Aeterna)


Since law is nothing else but a certain dictate of the practical reason of whomsoever is
charged with the care of community; and since the universe is under the care of god, as the
Prince of the Universe, three Rational guidance of created things has the quality of law.
This law is the Eternal law.

2.

Natural law (Lex Naturale)


-All existing things are subject to the External law. They derive from it certain indications
for those actions and aims which are proper to them. Human beings, different from other
creatures, are rational as such they control their own actions and the actions of others
consequently they share in divine reason itself. "The participation in the Eternal law by
rational creatures is called Natural Law".
Man through natural reason distinguishes what is good and what is evil.

3.

Human Laws (Lex Humana)


"Human reason has to proceed from the precepts of natural law, as though from certain
common and in demonstrable principles, to other more particular dispositions" (Summa
Theologica)
The Particular applications of Natural Law through the Agency of reason becomes the
Human Laws.

4.

Divine Laws (Lex Divina)


The ultimate end of all human existence is eternal blessedness. This is an aim that human
qualities are too weak to appreciate. As such human beings need guidance so that their

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laws can accord to the divine plan without contradiction or scandal. This guidance is
given in Divine law, which is incapable of error.
According to him Lex Aeterna & Lex Naturalis form the basic foundations for the system of law
and ethics. For him they operate on major principles.
1.

Do good and avoid evil here N.L. finds concrete precepts such as the desire for selfpreservation
All laws that make the preservation of human life desirable and possible are in accord are
existence. (It is possible here to group property laws and those with regard to the
preservation of life)

2.

Law and morality coincide


Acquaints argued that "Grace does not abolish Nature but perfects it"
Nature was seen as a revelation of the divine plan, therefore it could not be inherently evil
as conceived by Augustine.
The secular state could be justified if its institutions were in accord with rational
values. These values were the essential principles of nature which were at once
divine.
-

3.

Natural law was therefore the foundation of morality and of all social and political
institutions [d'Entreves pp. 44-45)

Thirdly, the evaluation of all social institutions could only be judged through the
"paramount standard" of natural law.
"Whatever has been recognised by usage, or laid down in writing, if it contradicts
natural law must be considered null and void" (d'Entreves p.45)

St. Thomas says " there is no law unless it be just" so the validity of law depends upon
its justice. But in human affairs a thing is said to be just when it accords a right with the
rule of reason; and as we have already seen, the first rule of reason is the Natural Law.
Thus all humanly enacted law are in accord with reason to the extent that they derive from
the N.L and if a human law is at variance in any particular with the N.L it is no longer
legal, but rather a corruption of law (Summa Theologica d' Entreves 2ed p.46; LLoyd
Sed. p. 155)
Acquinas is Quite clear that our obligation to obey the laws of the state is conditional upon
their passing the test of justice. If in the process of evaluation laws are found unjust them
they cannot be properly called laws. "They do not, in consequence, oblige in conscience".
Human laws according to acquiesces can be just or unjust. They are just where they serve
the common good, distribute burdens fairly, show no disrespect for God, and do not
exceed the law maker's authority. It is when laws fail to and would not "bind in
conscience"
One is morally bound to obey just laws, but not unjust laws.
Human law does not automatically merit our respect, and its

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legitimate claim to our obedience depends on moral considerations that are independent of
human law. [David Lyons, Ethics and the Rule of law, 1st Cap 1984)
Unjust laws may only bind the citizens for certain reasons of utility and harmony.
In this sense the Thomist doctrine is not a theory of Revolution against unjust laws, it is
one of passive resistance at its most radical interpretation.
It is the a achievement of Acquinas, however, that the following of N.L. precepts is not
made rigid. It was possible for reason to improvise by way of additions or subtraction's to
certain social institutions that were not in accord with the necessities of time.
4.

Although Lex Aeterna and Lex Naturalis from the basic foundations for social
institutions, they are limited. Natural law is not the only guide to human conduct
other laws are necessary.

With Acquinas "All law, eternal and natural, human and divine, is linked together in
a complete and coherent system. Thus we see here a formulation of code of nature
that accord to reasonNote: Important to note that Acquinas' system though
flexible, is a conservative system. There is no defence of inherent rights of man. It
defends rights and duties of the state.
The system also defends the restoration of the right order of things and the basic
premises is not natural rights but natural law.

Finally, it has been possible to show that for both the Roman Law compilers of the corpus
juris civilis and St. Thomas' Summa Theologica the structure of N.L. is that of a code of
precepts.

NATURAL LAW
1. NATURAL LAW THEORY AND ITS MAJOR CONCEPTS
A DEFINITION

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The tradition styled as Natural Law has a Long history in the study of jurisprudence most
of the Ancient theories on law were based on this tradition (seen Lloyd 5th Ed. 1985 pp.
92 - 129; Friedman, 5th ed. 1967 pp. 95-103, d'Entreves, A.P 2nd ed. 1970 pp. 13-21).
Before man conceived his social institutions as distinctively social vis--vis natural
structures nothing was divorced from nature. As such law and its institutions appeared to
form part of the natural order, and it is from this conception that such institutions could he
justified. Cater of course, the definition, style or justification of the doctrine become more
complex and abstract but the judgmental justification was that law had to adhere to a
natural criteria (Fuller, Finnis etc.) A definition of natural law tradition therefore would be
that tradition that simply associates the existence of legal concepts and institutions to the
dominance of what is described as natural.
What is stated above is of course too simple and ambiguous. What is "Law". a "Legal
institution" or "natural may, upon further reflection, appear Quite ambiguous and subject
to plural meanings. To avoid subjectivism on attempt shall be made to identify the heading
elements or characteristics of the natural law doctrine.
1.1

ELEMENTS OF THE NATURAL LAW DOCTRINE


There are certain general tenants and directions of thought that have been
associated historically with the natural law doctrine. It is useful to describe them
as clusters of ideas identifiable within a single general tenet. These are those
concerning (i) the state of nature (ii) the Natural Code, (iii)The status of positive
law (Wollheim, Richard, Natural Law, in the Encyclopaedia of Philosophy, N.Y
1967.pp 450-54)

A. THE STATE OF NATURE


There are mainly two views. The finish one is that which describes the state of
nature as a primordial (or prehistoric or pre societal) phase of human society. In
this state certain minimum principles are established in relation to existence and
orderliness of all things the author of these may be a god or internal logic of
existence etc.
The first principles form the basic organisational structure for all forms of
existence. Human society has therefore to conform to these basic striations. In
politics ethics and law human principles must be finally subjected to the first
principles originating from the state of nature.
What are the essential elements that make up the state of nature has depended on
the definition given in each historical epoch. The ancient philosophers did not
attempt to grapple with this Question in any detail. May be because science had
not yet made significant advances in the cognition of nature. During the Middle
Ages philosophers tried to answer this question and made useful contributions.
Later on examples can be given, from Hobbles, Locke and Rousseau(i)

THOMAS HOBBES (1588-1679)

Wrote extensively on political systems and society. His works include The
Elements of Law (1640), De Cive (1642) Leviathan (1651), etc. Hobbles
considered the rice of civil society and its justification. He had to give a
description of what was the state of nature. He argued that there is an original

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condition of man that we can term as natural. Nature is simply described as "the
art whereby God has made and governs the world! Through this art man imitates
God in making various artificial institutions e.g.. the state.
In the original condition man is guided by the motions of his thoughts. These
thoughts are activated by external sensations coming from nature.
Through thought he distinguishes sensations that bring him pleasure and avoids
those which bring to him pain. On this basis man pursue what they desire as
pleasurable. this makes men extremely selfish in the state of nature. Man is in
natural freedom here and since everybody is equal to another and has equal rights
to all material things (which send to he search) conflicts become endemic. Hence,
Hobbes concludes, the natural condition of man is a condition of war.
Man is moved in that state by, first, competition (which makes men invade each
other for gain, here they use violence to make themselves masters of other men's
persons, wives, children and livestock), second, by diffidence (i.e lack of
confidence) men send to seek safety and always defend themselves, and third, leg
glory which makes men seek reputation and he sympathetic at times.
In this condition however man is perpetually selfish, and he times in fear.
consequently there is no industry and trade (Hobbes sees this as a serious calamity)
In that condition there is no criteria for what is just or unjust. There is no common
power and hence no law, and where there is no law there is no justice or injustice.
The Solution
Confronted with such a situation man is impelled by passion and reason to seek
peace by entering into society. through reason man realise, that there are certain
basic principles which if realised a tolerably good living for all can he attained.
There principles are the Laws of Nature and they are principally there:
A.

That every man ought to endowed for peace but where he cannot obtain it
he can resort to war.

B.

That a man should be willing when others also agree to lay down his right
to all things and he contended with so much likely as against other men, as
he would allow other man against himself. (i.e. a man should lay down his
liberty or freedom in nature for the sake of having a society with other
men).

C.

That men must perform their covenants. Civil Society is impossible unless
the obligation to keep covenants is respected.

Once such principles are respected and realised then man can be willing to leave his natural rights.
which allowed him to use his own power as he wished to preserve his life according to his own
judgement and reason.
Through the force of his own reasoning Hobbes argues that a social contract is necessary for
individuals in the state of nature to form society. Yet from Hobbles analysis the state of nature is
not moral state nor a political state. The laws of nature as given by Hobbes "State hypothetical
conditions upon which the fundamental traits of human beings allow a stable government to he
founded " (H. Sabine, A History of Political theory quoted in Hallowell, Main currents in Modern

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Political Thought, Ny: 1963, pp. 76) " The basis of Hobbes system is not justice but utility, it is
not a question of doing what we ought to do but of doing that which is to our personal
advantage. We seek peace, agree with other men to give up our liberty of doing as we please,
and keep this agreement once made not because we ought to but because it is the only way we
can escape from the anarchy of the state of nature which constantly threatens our existence"
(Hallowel p.76) Thus society is actually based on calculated self-interest and fear of violent death.
The signification thing in this "thought experiment on the hypothetical natural condition" is how
Hobbes manages to assert that the most basic law of nature is that men realise that they cannot get
rid of the state of nature unless they learn to keep contracts! This law of nature is the formalism
of justice.
He writes,
"When a covenant is made, then to break it in unjust and the definition of injustice, is no
other than the non-performance of covenants" [Leviathan, part 1, cap.15, p.94]
The covenant seems to be brought about not by calculated self-interest but by a moral or
reasonable ground. Hobbes fails to reduce everything to utility, the obligation to contract is
transcendentally determined.
Hobbes wrote his works during the times of intense struggles between the feudalists and the rising
merchant classes in England. This was during the early part of the 17th century. The rising
merchant classes the Royalists (who were reactionary) and Parliamentarians [See: A. L. Morton,
A Peoples' History of England). The result and struggle led to the so-called glorious Revolution
in 1688 when the mercantile classes abolished absolute monarchy for constitutional monarchy.
Hobbes wrote when the two sides were still in struggle. The state of the society, or the state of
nature if you with was one of war or strife. Hence the pre-society order appears in Hobbes' mind
as one of constant strife. He proposes a solution to it through agreement. Though this is a
hypothetical position it is actually what happens by 1688. The result is not an absolute sovereign
as Hobbes argues, but limited monarchy.
ii.

JOHN LOCKE (1632-1704)

He was a natural law thinker supporting the Bourgeois, Revolution. He wrote several
books including An Essay Concerning Human Understanding, 1690; Treatise of Civil
Government, 1690; Letters on Toleration, 1689; and the Reasonableness of Christianity,
1695.
The time he wrote was that of the Glorious Resolution in England.
philosophical justification for bourgeois hegemony.

His writings were a

The justification of the state and its laws was also proposed through a conception which begins
with state of nature.
He averted that in the state of nature all men were free, equal and independent. There was perfect
freedom. Everyone was guided in his actions according to natural laws that were derived and
known by reason. The natural laws reach that :
"being all equal and independent no one ought to harm another in his life, health, or
possessions"
The conditions of nature as found in Locke are not similar to the fearful state found in Hobbes,
neither are they the idyllic conditions which are posited later by Roseau.

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Locke's condition of nature are merely perfect freedom - not good not bad. Then why do people
want to leave the condition of nature? This is because of certain weaknesses that are inherent in
this state of nature: (a)

There is lack of established law to know what is bad or good generally, there is
lack of law to settle disputes. Although reason can teach natural law some are
ignorant of it.

(b)

There is no impartial judge who has the authority to determine differences as


provided by established law. Everyone is a judge of his own cause as such there
can he no fair settlement of disputes.

(c)

There is no power to back a sentence when a right has to be enforced.

As such reason guides men to form a social contract whereby individuals agree to give up the
equality, liberty and executive power they had in the state of nature and put it in the hands of
Society. The rights are given to society only in so far as it is necessary to preserve LIFE,
LIBERTY and PROPERTY. The sovereign created thereby has only limited powers and
individuals retain all their basic rights which are inalienable. Locke's thought was the basis of all
bourgeois constitutions (French & American) that proposed inherent human rights.
iii.

JEAN JACQUES ROUSSEAU (1712-1778)

Also proposed a discussion of civil society in his work the social contract, which basically was
similar to Locke's. To him, however he achieved the impossible by showing the necessity of men
to unite under the "basal will" and get retain all their "individual rights"
His idea of democracy was that perfect association of human beings in society where whilst each
individual united with all he still obeyed himself alone, and such remained free as before.
D'Entreves calls him the prophet of modern democracy (or the good society") where legal and
moral obligations coincide.
[D'Entreves, 2nd Ed pp.141-143]
Yet it was Rousseau who argued that those who did not follow the "General will" were against
themselves and must he "forced to be free" Bourgeois democracy fluids here the religions halo
necessary for the justification of its dictatorship.
The modern theorists who have had a significant influence in Natural Law thinking, such as Lon
Fuller, lend not to conceive a hypothetical or historical state of nature as conceived by Hobbes and
others. Fuller asserts that there is a basic orderliness to all things. This orderliness is natural. In
the case of law one has to seek for the "Natural Order" that underlies group life and from this
abstract the law d'Entreves has styled thus as the technological notion of natural law (different
from the ontological notion of natural law that deals with ultimate ends of existence or being
(d'Entreves, 2nd Ed pp. 146-158)
From the technological notion of natural law Lon Fuller could consider what is the "natural"
orderliness of a legal system. And he could also consider in which cases the law could he
considered.
His idea of democracy was that perfect association of human beings in society where whilst each
individual united with all he still obeyed himself alone, and as such remained free as before.

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D'Entreves calls him the prophet of modern democracy (or the good society") where legal and
moral obligations coincide.
[d'Entreves, 2nd ed. pp. 141-143]
Yet it was Rousseau who argued that those who did not follow the "General will" were against
themselves and must he "forced to be free". Bourgeois democracy fluids here the religions halo
necessary for the justification of its dictatorship.
The modern theorists who have had a significant influence in Natural law thinking, such as Loon
Fuller, lend not to conceive a hypothetical or historical state of nature as conceived by Hobbes and
others. Fuller asserts that there is a basic orderliness to all things. This orderliness is natural. In
the case of law one has to suck for the "Natural Order" that underlies group life and from this
abstract the law. d'Entreves has styled thus as the technological notion of natural law [different
from the Ontological notion of natural law that deals with ultimate ends of existence or being.
[d'Entreves, 2nd Ed pp. 146-158]
From the technological notion of natural law Lon Fuller could consider what is the "natural"
orderliness of a legal system. And he could also consider in which cases the law could he
considered faulty vis--vis its natural order.
For example, in dealing with the legal system Fuller found that the general purposes of the legal
enterprise was "that of subjecting society to the governance of law mainly rules". This was the
basic purpose of the legal order.
To have a "Technological" orderliness that would allow the legal system to validly exist as such
there were certain instrumental requirements that were needed for all for farms of law. These
were:
1.

Forum of law must he sufficiently general i.e. they must be rules. If they are
particular they cannot cover large classes of acts and their applicability will not be
general enough to cover the activities of a society.

2.

Forum of law must be publish promulgated. It will be impossible to subject society


to the governance of rules that are secret or unknown.

3.

Forum of law must be sufficiently prospective. This is to cover the basic


requirement of notice. retrospective law makes an otherwise legal act illegal. Also
a law passed without sufficient notice will catch members of society unawares and
may be bad for inadequacy of notice.

4.

Forms of law must be clear and intelligible. Vague and unintelligible laws cannot
be followed without confusion.

5.

Forum of law must not be conflicting directives, i.e they must be free from
contradiction, i.e they must be internally consistent. Again this is a criteria of
orderliness.

6.

Forum of law must have sufficient constancy through time so that people can order
their relations accordingly. Uncertainly in the law can bring laxity and apathy is
society. E.g.. Tanzanian laws on property which have been changing annually have
neither encouraged the socialist inclined or capitalist inclined.

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7.

Forums of law must be in the form of requirements that citizen can abide by. The
law must not demand what is impossible.

8.

Official action must be sufficiently congruent with antecedent forms of law for
example, judges have to interpret the law in congruence with the content or text of
legal provision. If there is no sufficient congruence the law may, aver time, appear
unintelligible.

According to fuller only if a legal system approximates the above requirements of order can it
function as a legal system. The requirements are both formal and substantive, and once achieved
a "natural" legal system could be said to be in existence.
The examples taken from Hobbes & Locke mere an attempt to show how the element of the State
of Nature has been used by theorists to construct ideal notions of the right society with Fuller we
see also how modern theorists use the concept of what is "natural" to build the "necessary' blocks
for what they consider a "workable" or "efficient" legal system.
B. The Natural Code
(-R Wollheim, "Natural law in the Encyclopaedia of Philosophy, NY, 1967, P. 450-54
- A.P d'Entreves, Natural law: An Introduction to Legal Philosophy. 2nd Ed; 1970 - ; [2 - A
universal system of laws 22; 5 - The essence of law 65; 7 -The Ideal Law 93]
The fact that there is a natural standard which is a criterion of reference to which positive law can
be judged has been taken to mean that the standards themselves possess the characteristics of a
legal code.
Any natural law theory would present this 'pre-existing, "inherent" or "higher code" as a complex
set of rules N precepts, against which existing, codes can then be matched item by item. Thus the
laws which would come out of this comparative exercise would of necessity he a universal system
of law.
A.

The corpus iuris civilis


The ancient Roman Corpus Juris Civilis (completed in 534 by Byzantine lawyers under
the instructions of Emperor Justinian) was supposed to represent the universal system of
laws. The Romans themselves referred to it as "the godly approved laws of Justinian the
Emperor"
d'Entreves (P.23) tells us that "the Corpus Juris Civilis comprise three different works; the
institutes, a short education handbook, published in Nov. 833; the Digest, a collection o
excerpts or fragments from earlier jurists system systematically arranged (published Dec.
833); and the Codex or codification of Imperial constitution, first published in 520, and
revised in Nov. 583."Reference to the Corpus Iuris Civilis refer generally to these works.
The Roman codes have been of great influence to all modern codification's, especially in
private law.
The underlying claim that the Corpus Iuris Civilis would he of universal validity was based
not on the force of the law but on reason. Justinian saw as his mission to erect a temple of
justice or a citadel of law based on rationality d'Entreves (P.24) sums up the conception of
law envisaged in the Digest in the following words.

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Law- ius - is an art and a science all in one. As a science it is a knowledge of


human and divine things, a theory of right and wrong. As an art, it is the
furtherance of what is good and equitable. So high is the mission of the jurist
that it may rightly he compared with that of, a priest. he is indeed a Minister
of Justice, for justice and law are correlative. Now of laws there are different
sorts. There is the law of the state, which expresses the interest of one
particular community (ius civile). There is a law of nations (ius gentium),
which men have devised for their mutual inter-course. But there is also a law
which expresses a higher and more permanent standard. It is the law of
nature (ius naturale) which corresponds to 'that which is always good and
equitable' (bonum et aequum) (p.24,2nd ed.)
Both state laws and international laws had to seek their validity in ius naturale.
The 3 types of laws make the classical trichonomy that is associated with the ancient
Roman conception of law.
The absolute standard of justice, the ius naturale, is taken to be the structure whereby all
laws are pegged and where they find universal validity- yet to the Roman this standard did
not mean a higher law or some transcendental concept. It merely meant that there is a
rational correspondence in the nature of things that gives general rules which are guides to
concrete facts of life. In Civil law and just Gentian such broad rules could be developed.
The Roman conception therefore had no philosophical "consequences" which are attached
to either medieval or, modern conception of the natural code as a higher code.
There was no correction that if positive law was in conflict with natural law then are one
would prevail. Natural law was merely a reflection upon existing law. There was no
conception of inherent rights of man at this stage.
The universal system of laws, the natural code, was therefore good not because of its
compulsion but because it was functionally the best in terms of completeness and harmony.
It had an intrinsic value, which made it functionally superior this value puts a definite
demand that law should correspond to nature to equity and to justice.
In this may the demand for law to adhere to higher standards could he carried on his later
days.
B. The corpus juris canonical (Decretum Gratiani) the Church Fathers and Thomas
Acquinas' Summa Theologica.
The law of nature as a rational foundation of ethics is developed in the medieval times.
Here the argument that law must correspond to morality is perfected and grounds of
superior code developed.
The oldest collection of church law named the Decretum Gratiani (c.1140) intones.

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" Mankind is ruled by two laws: Natural law and custom. Natural law is
that which is contained in the scripture and the gospel" (d' Entreves
p.37).
d'Entreves points that the church laws had their equivalent of the Corpus Iuris Civilis
which was embodied in what is called the corpus Iuris canonici
(This was the name adopted by the Council of Bank in 1441 to indicate several collections
of church laws of which the first-the concordia discodantium canonum - is reminiscent of
the Digest, the others Decretum Gratiani, was the work of an Italian work, Gratian, who
was actives in Bologna, the great medieval centre of law studies, in the first half of the
12th C. - P.32 d'Entreves).
Cannon law in the- middle- ages was the "principle which of the doctrine of the law of
nature" (P. 38 d'Entreves). For the first time in the works of Gratiani we find the argument
that Natural law is divine rendition on how to conduct human affairs.
Because of its divine character, natural law is absolutely binding and
overrules all other laws. It precedes them in time because it came into
existence with the way reaction of man as a national being, nor does it
vary in time but remains unchangeable' (Decv. Grat. P.I, dist. v, 1, -1). It
also precedes them in dignity.
'Natural law absolutely prevails in dignity over customs and constitutions
whatever has been recognised by usage, or laid down in writing, if it
contradicts natural law, must be considered null and void" (Decr. lpat.1,
viii,2) (d' Entreves p.38).
The medieval church fathers such as St.. Isidore, (560-636); St. Ambrose (340-397); and
St Augustine (354-430) adopted this kind of thinking, they proposed two kinds of law
Divine laws and Human laws. (Jus Divina and Jus Humana).
St. Augustine was the classical representative of the early curd doctrine. In his work the
City of God (de civitate dei) he argued that the social institutions of men were sinfulincluding the state. Man could only justify his institutions by creating those which will he
like the city of God. The absolute ideal of Christian perfection left little room for the
natural order of things. As such Augustine view was taken to be overly retroactive.
The medieval church thinking that revolution the Natural law doctrine and as such builds a
rational foundation of ethics is that of St. Thomas Acquinas (1224-1274) In his works
human reason is given the capability of founding a system of natural ethics founded on
natural law.
In his classical work the Summa Theologica (1266-73) Acquinas defines law as:
" a rational ordering of things which concern the common good promulgated beg
whoever is changed with the care of the community (see 40 yd, 5th Ed; pp. l5l l56, as p. l53]
Thomas of Acquinas [ 1225 - 1274]

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Summa Theologica ( l266- l273) in Basic writings of St. Thomas Acquinas, ed. A.C. ( N.Y
Random House, l945) Rd.2. Acquinas was not as absolute as St. Augustine the Aristotle's
rational method in his classification. He agreed that the ultimate foundation of all law is
divine law but then human indication and reason had a certain space in the realisation of
law, Human Law could not be simply evil.
Thus according to Acquinas there were four types of Laws.
(a)

External Law Lex Aeterna

- Since Law is nothing else but a certain dictate of the practical reason of
whomsoever is charge with the care of community; and since the universe is
under the care of God, as the Prince of the Universe, the national guidance of
created things has the quality of law. This law is the Eternal law.
(b)

Natural law Lex Naturalis

- All existing things are subject to the Eternal law. They derive from it certain
inclinations for those actions and aims that are proper to them.
Human beings, different from other creatures, are rational as such they control their
own actions and the actions of others. Consequently they share in divine
reason itself "The participation in the Eternal law by national creatures is
called Natural Law"
Man thorough natural reason distinguishes what is good and what is evil. In this
way he is able to discern the precepts of eternal law itself.
c.

Human laws (Lex Humana)

"Humana reason has to proceed from the precepts of natural law, as through from
certain common and in demonstrable Principles, to other more particular
dispositions" (Summa Theo.)
- The particular applications of Natural Law through the agency of reason become
the Human laws.
d.

Divine laws (Lex Divina)

- The ultimate end of all human existence is eternal blessedness. This is an aim that
human qualities are too weak to appreciate. As such human beings needed
guidance so that their laws can accord to the divine plan without
contradiction or scandal; this guidance is given in Divine law; which is
incapable of error.
- Divine law is capable of giving guidance to what is completely inaccessible to the
rational faculty of man. It orders And regulates the interior actions of the
human being (eg. what goes on is human souls is unknowable to man). and it
can prevent evil and promote good where human action fails or misdirects
itself due to its inherent limitations.

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The first two aspects of law that is the Lex Aeterna and the Lex Naturalis are the basic
foundations for the system of law and of ethics. For Acquinas they operate on certain major
principles.
(a)

Do good and avoid evil" - here Natural law finds concrete precepts such as the
desire for self-preservation. All laws that make the preservation of human lift
desirable and possible are in accord with the "ultimate end of human existence. (It
is possible here to group properly laws and those with regard to the presentation of
life).

(b)

Law and morality


Acquinas argued that "Grace does not abolish Nature but perfects it." Nature was
seen as a revelation of the divine plan, therefore it could not be inherently evil as
conceived by Augustine. With Acquinas we get a philosophy that supported
"Christian Humanism. Where reason and faith coincides. The secular state could
be justified if its institutions were in accord with rational values. These values were
the essential principles of nature which were at once divine.
The philosophy of Aristotle about the rational state and man being a political
animal finds in Acquinas its revival and defence as the highest expression of natural
morality with Acquinas nature and convention do not seem to he apposite - they
supplement each other.
Natural law was therefore the foundation of morality and of all social and political
institutions (d' Entreves pp. 44-45).

(c)

Thirdly, the evaluation of all social institutions could only be judged through the
"paramount standard of natural law.
Whatever has been recognised by usage, or laid down in accreting, if it contradicts
natural law must be considered null and void "(d'Entreves P.45).
(We can safely quote the Angelic Doctor himself:)
`

St. Augustine says; There is no law unless it be just" so the validity of law
depends upon its justice. But in human affairs a thing is said to be just
when it accords a right with the rule of reason; and, as we have already
seen, the first rule of reason is the Natural law. Thus all humanly enacted
laws are in accord with reason to the extent that they derive from the
Natural law. And if a human law is at variance in any particular with the
Natural law, it is no longer legal, but rather a corruption of law. (Summa
Theologica Ia 2ae, 95, 2; d'Entreves, 2nd ed, p.l 46; Lloyd 5th Ed, pg.
155)

Acquinas is quite clear that our obligation to obey the laws of the state is conditional upon
their passing the test of justice in the process of evaluation laws are found unjust then they
cannot be properly called laws. They do not, in consequence, oblige in conscience.
Human laws according to Acquinas scan be just unjust. They are just where they serve the
common good, distribute burdens fairly, show no disrespect for God, and do not exceed
the law makers authority. It is when laws fail to satisfy these conditions that they fail and
would "not bind in conscience".

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One is morally bound to obey just laws, but not unjust laws. One should obey unjust laws
only when circumstances demand it, "in order to avoid scandal or disturbance."
Human law does not automatically merit our respect, and its legitimate claim to our
obedience depends on moral considerations that are independent of human law. (David
Lyon, Ethics and the Rule of law, 1st dept. 1984).
Acquinas puts it much more clearer:
Man in bound to obey secular rulers to the extent that the principle of justice
requires. For this reason if such rulers have no just title to power, but have
usurped it, or if they command things to he done which are unjust, their subjects
are not obliged to obey these, except perhaps in certain special cases. When it is a
matter of avoiding scandal or some particular danger (Summa Theologica 2a 2ae,
104, 6; d'Entreves, 2nd Ed, P.46).
Hence due to certain reasons of utility and harmony citizens may be bound to obey unjust laws. In
this sense the Thomist doctrine is not a theory of revolution against unjust laws, it is one of
passive resistance at its most radical interpretation. At times, in some passages, Thomas Acquinas
seems even to suggest opportunism in the sense that it is better sometimes to "play safe" rather
than resist laws, especially those of and grants;
Tyrannical laws, not being according to, reason, is not law at all in the true and
strict sense, but rather a perversion of law. It does, however, assume the nature of
law to the extent that it provides for the well being of the citizens. Thus it bears
relationship to law in so far as it is the dictate to his subjects of some one in
authority and to the extent that its object is the full obedience of those subjects to
the law. For them such obedience is good, not unconditionally, but with respect to
the particular regime under which they live.
(St. Thomas Acquinas, Summa Theologica is A.P. d'Entreves ed. Acquinas; selected Political
writings, trans. by J.G Dawson, oxford, 1954, pp 109-29)
It is the achievement of Acquinas, however, that the following of natural law precepts is not rigid.
It was possible for reason to improvise by way of additions or subtraction's to certain social
institutions that were not in accord with the necessities of time. "The largest possible allowance is
made for historical circumstance, the largest compatible with belief in truth and in justice. History
is not the last resort, nor can it provide man with the ultimate standard". The Lord ;has said I am
the truth, not I am custom or constitution" [d'Entreves, pp. 47]
Although Lex Aeterna and Lex Naturalis form the basic foundation for
social institutions, they are limited. Natural law is not the only guide to
human conduct other laws are necessary.
Human Laws must be established to draw out of all the conclusions of
natural law, and to restrain civil men from wrongdoing by force and by
fear.
Divine laws were revealed in order to lead man to his heavenly
destination, to remedy the weakness of human judgement, to prove the

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secrets of mans heart and thus to leave no evil unforbidden and


unpunished.
Yet d'Entreves concludes (p.47) that with Acquinas "All law, eternal and natural, human and
divine, is linked together in a complete and coherent system".
Thus he see here a formulation of code of nature that accords to reason.
NOTE: It is important to note that Acquinas system though flexible is a conservative
system. There is no defence of inherent rights of man. It defends the duties and
rights of the state. The system also defends the restoration of the right order of
things rather than the "perilous experiment of revolution? The basic premise is not
that of the individual but that of the Cosmos if is not Natural Rights but Natural
Law.
It is on this basic that d'Entreves (p.48) doubts the attempt of certain modern Thomists to
build o system of individual Human Rights from Thomas Acquinas eg. J. Maritain, The
Rights of Man and Natural Law (1944)
Finally, it has been possible to show that for both the Roman Law compilers of the
Corpus Iuris Civilis and St. Thomas Acquinas Summa Theological the structures of
natural law is that of a code of precepts.
C: Status of Positive Law
* d'Entreves, 2nd ed, Dept. 7 "The Ideal Law"
pp. 93-107; and dept. 4 "Theory of Natural Rights" pp. 51-61
* Julius Stone "Human law and Human
Justice (London, Shawnees, 1965) pp. 74-81
"Natural Law as a unsure of the positive legal order"
The last basic element to the Natural law doctrine seem to be generally that conformity to
natural law is the criterion not merely of a just law but of law itself.
Thus it is not the formal validity criteria that is adequate for a definition of law, as position
suggests, but rather conformity to an extra legal criteria of evaluation, Austin, the founder
of Analytical Positivism, argues that "the existence of law is one thing; its merit or demerit
another" (The Province of jurisprudence determined, 1832, Lecture V)
The well known maxim attributed to the natural law tradition, lex injusta non est lex (an
unjust law is not a law) seems to be Qualified. J.M. Finnis, in his most recent defence of
the Natural law doctrine in a book entitled Natural Law and Natural Rights (1980-)
argues :
Far from 'denying legal validity to iniquitous rules the tradition explicitly
(leg speaking of 'unjust laws') awards to iniquitous rubs bylaw validity,
whether on the ground and in the sense that these rules are accepted in the
courts as guides to judicial decision, or on the ground and in the sense
that, in the judgement of the speaker, they satisfy the criteria of validity
laid rules, or on both these grounds and in both these senses. The
tradition goes an obligation to conform to some such unjust laws in order
to uphold respect for the legal system as a what.

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[Finnis, Natural Law & Natural Rights (1980); excepts in Lloyd, 5 Ed,
pp. 203-226; at 225-226]
But it is clear that the tradition does defend the argument that if putative (i.e. accepted) law does
not accord with Natural Law precepts them it is some other standard and not properly law.
Example: NATURAL RIGHTS AND THE SOCIAL CONTRACT
This argument is seen clearly where positive law is in contravention to certain fundamental rights
that are taken to be natural. it is therefore important to consider the notion of inherent rights as
an example where positive law has to comfort to Natural Law.
We have already discussed theorists like Hobbes, Locke and Rousseau, and their conception of the
state of Nature. They have all argued that certain rights especially related to human preservation
or protection of life are inherent.
These philosophical arguments found practical application in the Bourgeois constitutions of the
18th and 19th centuries. The Social contract (later the constitution) had to protect these
fundamental rights and positive law could not, without qualification, contradict such rights.
The French Declaration of Rights of Man adopted by the French National Assembly on 26th Aust,
1789 append the way to the French Revolution:
The representative, of the French people, constituted in a National Assembly,
considering that ignorance, oblivion or contempt of the Rights of man are the
only courses of public misfortunes and of the corruption of government, have
resolved to lay down, in a solemn Declaration, the natural, inalienable and
sacred Rights of man, in order that this declaration, being always before all the
members of the social body, should constantly remind them of their Rights and
their duties; that the actions of the legislative as well as of the Executive Power,
being liable at any moment to be referred to the end of all political institutions,
should be more respected; that the grievances of the citizen, being hence for
based upon simple and indisputable principles, should always be conclusive to the
preservation of the constitution and to the happiness of all [d'Entreves, 2nd Ed
p.521]
The American Declaration of Independence of 1776, is of the same tenor. Its opening paragraph
recount :
When in the course of human events, it becomes necessary for one people to
dissolve the political bands, which have connected them with one another, and to
assume among the powers of the earth the separate and equal station to which the
laws of Nature and of Nature's God entitle them, a decent respect to the opinions
of mankind requires that they should declare the causes which impel them to the
separation.
We hold these truths to be self-evident, that all men are created equal, that they
are endowed by the creator with certain unalienable rights, that among these are
life, liberty and the pursuit of Happiness. That to secure these rights,
Governments are instituted among men, deriving their put powers from the
consent of the governed, That whenever any form ends, it is the right of the

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people to acted or to abolish it, and to institute new government, laying its
foundation on such principles and organising its powers in such form, as to them
shall seem most likely to effect their safety and happiness. [d'Entreves, 2 Ed,
p/63]
The modern theory of Natural Rights is a unique development of the bourgeois revolutions. The
major characteristics of this theory are according to d'Entreves (p.52), three :

A:

(a)

The first is rationalism. Natural rights are conceived as the equivalent of simple
and indisputable principles. Truths so obvious that they do not need discussion or
justification

(b)

The second is Individualism. The rights refer to the "natural, inalienable rights of
Man" and men is in further elaborated in the French Declaration "are born and
remain free and equal in rights"

(c)

Third is that the theory is one of radicalism constitutions, states, etc. are there to
preserve the basic rights, if they do not it is the right of people, infact a duty to
abolish these.

Rationalism and Modern Natural Rights Doctrine

The modern theory of natural rights begins with far theoretical denial of theology as a foundation
of natural law. The thinkers who started to promote the idea of inherent rights saw unaided
reason as the foundation of Natural Law.
The foremost defender of the "intellectual authority of reason" vis-a-vis the "spiritual authority of
divine law" was Hugo Brotius (1583-1645), a Dutch man who is not only the fonder of the
acknowledged founder of International law.
In his apus major De Jure Belli at Pacis (1623-25) namely laws of war and peace he gave a
conception of Natural Law that had an equivalent effect as what Bacon and Descartes did in the
field of philosophy, and what Galilee and Newton did in the field of experimental science.
According to Grotins man's desire was essentially to live in society peacefully in correspondence
with the inclinations of his intellect or reason. From this desire principles of natural law are
derivable. These principles insofar as they are rational are even independent of Gopd. Grotius
argued "natural law is so immutable that it cannot be changed by bad himself". He compared it to
other abstract principles like those found in mathematics. Whether God existed or not two times
two will always remain four. Consequently, with this "impious principle". Grotins freed Natural
Law thinking from divine trappings.
The principles of reason can, according to Grotins, be deduced in two different ways :
(a)

a priori by examining anything in relation to the rational nature of man, and

(b)

a posterior, by examining the acceptance of these principles among nations.

According to Grotins the former (i.e.{a}) is the more effective method.


Grolius therefore showed that it was possible to build up a theory of laws independent of
theological presuppositions. But according to d'Entreves p.55) he also went further. "If natural
law consists in a set of rules which are absolutely valid its treatment must necessity. In order to be

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a science, law must not depend on experience but an definitions, not on facts, but on logical
deduction. Hence only the principles of the law of nature can properly constitute a science"
Once these principles are abstracted then they can be taken to be clear, self-evident and coherent.
The self-evident and rational law of nature requires no proof.
Later writers like Pufendorf, Leibniz, wolff, valtel, etc. perfected the rationalism of Grotins.
Thus drove sad out of Natural law. On the basis of this thinking positive law had to award with
natural law. If it failed to do so then it was invalid. Natural Law is the superior law, not because
it is devine but because it is rational.
B:

Individualism and Modern Natural Rights Doctrine

The whole philosophy of Natural Rights is supported by a notion of individualism without which
the theory cannot stand d'Entreves (p.57) notes that the rise of the "Individualistic principle in
political philosophy only comes at a certain time.
It is the moment at which political theorists turned the idea of contract for their
interpretation of the relationship between the individual and the community. it is
the moment when the doctrine of the social contract first makes its appearance
The authors who refer to the social contract also have an atomistic conception of society and a
theory of natural rights. This is true of grotius, Hobbes, Locke and Rosseau
[see. W. Friedman, 5th ed. pp. 117-123]
without gaing into detail on what each theorist professed we may outline the general features of
the social contract doctrine as follows :The Doctrine has generally two stages of contracting
i.

First men from a state of nature where they writers this is paradise in others chaos men at a certain point of lime pass into society through a contract. In the contract
they agree to respect each other and live in peace. This is called the pactum
Unionis

ii.

The Second aspect, which may go hand in hand with the first or added later, a
second aspect is undertake to obey a government which they themselves have
chosen. This second stage is known as pactum subjectionis.

Friedman writer that usually those who rely on the first stage only treat it as a historical fact mixed
with constructions (improvisations); those who rely on the second stage treat it as entirely a
construction of legal reason not as a historical fact.
Grotius treats the social contract as an historical fact. Hobbes recognises only a pactum
subjectionis Locke both a pactum unionis and subjection, Rousseau known only a pactum
unions etc.
What is common to the Social Contract theorists is :
(a)

The source of political power is secular (with the people) and not divine.

(b)

Society is conceived as individualistic or atomistic.

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The state is seen as the legal creation of individual will; contract is the suitable legal form for such
a conception. It follows that social contract theories are quite incompatible with an organic view
of society or corporate personality.
[Q. Hon then do socialists with their conception of communist society envisage the application of
natural rights doctrine?]
Thus basically the social contract theorists are speaking the same language. "Formally" contract
is a manifestation of individual will with the object of establishing a relationship of mutual
obligation which could not otherwise exist by the law of nature. "substantially" the content of the
contract is the natural right of the individual which is exchanged against a counterpart of equal or
greater value the benefits of society and the security of political Organisation [The social contract
may affect a complete transformation of the original right, as is the case with Hobbes, and
Rousseau. Or it may leave that right unaltered, and have no other purpose than to secure it, as
Locke is anxious to maintain. but in all cases the contract is the necessary parterre of all legal and
political obligations - d'Entreves p.59]
The notion of social contract was the only possible means of setting the natural rights of the
individual within the frame work of the state (p.59-d'Entreves).
C:

Radicalism and the Natural Rights Doctrine

The radicalism going into the Natural Rights doctrine is based on the constitutional assumption
that the state is set-up to protect inherent rights. One it fails to do so citizens have a right to
disobey.
The modern natural law doctrine is a indication of the rights of man, his value as an individual, and
so once his rights are not respected he has a right and duty to rebel.
d'Entreves in discussing this aspect of Natural Rights (pp. 59-62) wonders how the radicalism
came about? This is socio-economic and may be we can explain it better than him. He notes a
significant thing however, that the modern theory of natural law was not, properly speaking, a
theory of law at all, but a theory of rights. And it is these rights which had to be indicated by
revolution, by the constitution and by Natural Law.. Positive Law had to be judged under the
standards of Natural Rights.