Natural Law

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In philosophy, 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, from Greek antiquity, 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; and Cicero wrote of a "true law, right reason, diffused in all men, constant and everlasting." 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 Suárez, emphasized the divine will instead of the divine reason as the source of law. This "voluntarism" influenced the Roman Catholic jurisprudence of the CounterReformation, 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 Althusius (15571638) 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

There are two schools of thought regarding why people conform to norms." self-preservation and compassion (innate repugnance against the sufferings of others). were each one at solitary war with every other. and Kantian formalism contributed to the 20th-century revival of naturalistic jurisprudence. 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. security. 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. but the rules defining what is honest behaviour in a particular situation are norms. In England. Norm. rule or standard of behaviour shared by members of a social group.e.g. yet allowed the practical or moral reason to deduce a valid system of right with its own purely formal framework. property. Norms may be internalized--i. 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. or they may be enforced by positive or negative sanctions from without. a clique of friends) or may include all adult members of a society. Also called SOCIAL NORM. and resistance to oppression as "imprescriptible natural rights. where Montesquieu had argued that natural laws were pre-social and were superior to those of religion and of the state. incorporated within the individual so that there is conformity without external rewards or punishments. Jean-Jacques Rousseau postulated a savage who was virtuous in isolation and actuated by two principles "prior to reason. a common value . On the level of international politics in the 20th century." The French Declaration of the Rights of Man and of the Citizen asserts liberty. Grotius and Hobbes thus stand together at the head of that "school of natural law" which. The social unit sharing particular norms may be small (e.. John Locke departed from Hobbesian pessimism to the extent of describing the state of nature as a state of society. in accordance with the tendencies of the Enlightenment." Hobbes defines a law of nature (lex naturalis) as "a precept of general rule found out by reason." The philosophy of Immanuel Kant renounced the attempt to know nature as it really is. tried to construct a whole edifice of law by rational deduction from a fictitious "state of nature" followed by a social contract. In France. The functionalist school of sociology maintains that norms reflect a consensus..man had lived in the biblical Eden but from a savage "state of nature" in which men. of life. Norms are more specific than values or ideals: honesty is a general value. free and equal in rights. with free and equal men already observing the natural law. 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. that is to say.

whether observed in practice or not (social morality). if so. however. and natural law. The attempt to base norms on some such category of facts has for two millennia been associated with the concept of natural law. morality. Clearly. behaviour. The importance of the distinction is illustrated by the main questions to which it gives rise: (1) How far and in what sense should the law of a community seek to give effect to its morality? (2) Is there a moral duty to obey the law even when it does not embody morality. or (3) the moral ideals accepted by each individual as binding on himself and on others. and all three have a constantly changing interaction with each other. such as man's social propensities or the ubiquitous importance of kinship in social organization. Norms contribute to the functioning of the social system and are said to develop to meet certain assumed "needs" of the system. A consideration of fundamental importance in the philosophy of law is that of the distinction between law and morality. All these. refer to any of the following: (1) the community's relevant factual behaviour patterns (its mores). Neither school adequately explains differences between and within societies. or opinion of a social group. In this sense it means actual. rather than expected. This concept has many . The fact that legal and moral norms vary from place to place and from one historical period to another lies in part behind a persistent theme in the philosophy of law: the search for unchanging norms that are universally valid. and. which should the citizen obey? (4) Is there ever (and. attitude. whether or not those others agree (individual morality). Law. secular. politically organized societies. The Marxian variety of conflict theory states that norms reflect the power of one section of a society over the other sections and that coercion and sanctions maintain these rules. as well as with law. the most certain way of establishing such norms would be to base them on widely observed facts. The word "morality" in the four questions may. are there any limits to this duty? (3) When a legal rule directs conduct that morality forbids. like law. the process by which an individual learns the culture of his group. as sanctified by some widely held rational or religious ideal. if so. The conflict school holds that norms are a mechanism for dealing with recurring social problems. (2) its socially approved behaviour patterns. Norms are thought to originate as a means by which one class or caste dominates or exploits others. which supposedly reveal something fundamental about the nature of man and his adjustment to the world. when is there) a duty to overthrow an entire legal system because of its conflict with morality? In all these questions the word "law" refers to the specialized form of social control familiar in modern.system developed through socialization. Norm is also used to mean a statistically determined standard or the average behaviour. are means of controlling human conduct by setting normative standards.

For man. The criteria by which such a hierarchy is ordered must be drawn from sources other than the factual inclinations themselves. To derive from this synderesis a universal natural law. Thomas Aquinas himself. in identifying the "inclinations" from which men may learn natural law." Thus. Natural law embodies those obligations that will appear if mankind's reason and sociality are fully unfolded. mere factuality is not a sufficient source of obligation. All theories of natural law. for instance. that there may be a "warping" or "impeding" of the natural tendencies. a disposition (habit) of the practical intellect inclining them to the good and murmuring against evil. a kind of sympathetic understanding found in men. it would be necessary to demonstrate some "universal conscience" of all mankind. is what it will be in its fullest and most perfect development. St. have found it necessary to rely on what are essentially intuitions or preconceptions as to what man's true nature is. . The "lower" grades (such as self-preservation) may well be based on something like instinct. It has always been possible to trace a mainstream of natural-law thought. but the significance of the topic merits some separate preliminary discussions. let alone create a sense of obligation toward. however.versions. but the question arises at the higher grades whether there is any comparable instinct by which men seek to find moral precepts binding all of them in common. so that what exists may then "be said to be unsound or incorrect. from which obligations must be derived. Aquinas here appealed to synderesis. But natural lawyers faced with the fact that men's consciences do not coincide explain that conscience may err and reason be corrupt. found it necessary to order these in grades of inclination. All such theories acknowledge. the principal of which are outlined in the historical survey below. moreover. that the full development or fulfillment of an entity is not the same as its mere continued existence. namely. so that those inclinations most closely related to reason and sociality take priority over those concerned (for example) with procreation and self-preservation. this means what he is when the powers and qualities distinguishing him from other creatures. values that are only immanent. his reason and his impulse to social living are fully developed. Similarly. A major difficulty presented by this attempt to develop normative standards appears to be that it is very difficult to demonstrate. flowing from Aristotle’s premise that the "nature" of any creature. Invocation of synderesis is in fact helpful not as an account of how one may arrive at factually based normative standards but as an illustration of the psychological tendency of men to assert values.