UJP3712 Jurisprudence

Topic 2: Natural Law

Assoc. Prof. Dr. Dennis W. K. Khong
wkkhong@mmu.edu.my
January 2022
Handout

1 Reading
1. Michael Freeman, Lloyd’s Introduction to Jurisprudence (Sweet &
Maxwell 2014) chap 2.
2. Raymond Wacks, Understanding Jurisprudence: An Introduction
to Legal Theory (6th edn, OUP) chap 2.
3. Brian H Bix, Jurisprudence: Theory and Context (8th edn, Sweet
& Maxwell 2019) chaps 5 & 6.
4. NE Simmonds, Central Issues in Jurisprudence: Justice, Law and
Rights (5th edn, Sweet & Maxwell 2018) chaps 2, 4 & 7.
5. FH Peters, The Nicomachean Ethics of Aristotle (10th edn,
Kegan Paul, Trench, Trübner & Co 1906) <https://www.
stmarys-ca.edu/sites/default/files/attachments/
files/Nicomachean_Ethics_0.pdf>.
6. John R Kroger, ‘The Philosophical Foundations of Roman Law:
Aristotle, the Stoics, and Roman Theories of Natural Law’ (2004)
Wisconsin L Rev 905.
7. Anton-Hermann Chroust, ‘The Fundamental Ideas in St. Augustine’s
Philosophy of Law’ (1973) 18 Am J Juris 57.
8. Anton-Hermann Chroust, ‘The Philosophy of Law of St. Thomas
Aquinas: His Fundamental Ideas and Some of His Historical
Precursors’ (1974) 19 Am J Juris 1.

2 Introduction
9. Natural law can be considered the first approach to jurisprudential
thinking about law.
10. It’s basic idea is to argue the existence of a ‘higher law’ than
man-made laws.

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11. Essentially, it attempts to ascribe the source or reason for law to
a ‘natural’ phenomenon, be it physical, social, metaphysical or
theological.
12. Due to its long history, what constitutes ‘natural law’ changes
according to the times in history.
13. Roman jurist Cicero (106 BC–43 BC) wrote on his idea of natural
law:
“True law is right reason in agreement with nature; it
is of universal application, unchanging and everlasting;
it summons to duty by its commands, and averts from
wrongdoings by its prohibitions. And it does not lay
its commands or prohibitions upon good men in vain,
through neither have any effect on the wicked. It is a
sin to try to alter this law, nor is it allowable to attempt
to repeal any part of it, and it is impossible to abolish
it entirely. We cannot be freed from its obligations by
senate or people, and we need not look outside ourselves
for an expounder or interpreter of it. And there will not
be different laws at Rome and at Athens, or different laws
now and in the future, but one eternal and unchangeable
law will be valid for all nations and all times, and there
will be one master and ruler, that is, God, over us all,
for he is the author of this law, its promulgator, and its
enforcing judge. Whoever is disobedient is fleeing from
himself and denying his human nature, and by reason of
this very fact he will suffer the worst penalties, even if he
escapes what is commonly considered punishment.”
14. Natural law argument is used to justify both the source of law as
well as the content of law. Although they are very compelling to
human emotions, it is neither scientific nor objective.
15. There is also ambiguity as to what is ‘nature’ or ‘natural’, and
whether ‘natural law’ is law or just a theory of the law.

3 Ancient Greeks
16. The first natural law juris from a Western jurisprudential perspective
were the ancient Greeks.

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 3.1 Socrates

17. Socrates’s (469–399 BC) most important view is ‘virtue is

knowledge’. He advanced a rigorous question-and-answer style
(‘refutation’) to uncover contradictions in a person’s idea, and truth
will be revealed.
18. Socrates challenged the role of Gods in the world. Instead he
advocated the need to question and critically challenge everything
using human’s reasons.
19. In 399 BC, after the fall of the Athenian empire, Socrates was
found by a jury of being guity of impiety and corrupting the morals
of youth, and was sentenced to death. Socrates’ friends arranged
for his escape, but he chose to stay and drink the fatal hemlock,
arguing that to defy the judgment against him would be to break
his agreements and commitments and to mistreat his friends, his
country and the laws of Athens.
20. In Plato’s Republic (Book VI), Socrates was shown as being
sceptical of the wisdom of majority:
“Imagine then a fleet or a ship in which there is a captain
who is taller and stronger than any of the crew, but
he is a little deaf and has a similar infirmity in sight,
and his knowledge of navigation is not much better.
The sailors are quarrelling with one another about the

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 steering—every one is of opinion that he has a right to
steer, though he has never learned the art of navigation
and cannot tell who taught him or when he learned, and
will further assert that it cannot be taught, and they are
ready to cut in pieces any one who says the contrary.
They throng about the captain, begging and praying him
to commit the helm to them; and if at any time they
do not prevail, but others are preferred to them, they
kill the others or throw them overboard, and having first
chained up the noble captain’s senses with drink or some
narcotic drug, they mutiny and take possession of the ship
and make free with the stores; thus, eating and drinking,
they proceed on their voyage in such manner as might
be expected of them. Him who is their partisan and
cleverly aids them in their plot for getting the ship out
of the captain’s hands into their own whether by force
or persuasion, they compliment with the name of sailor,
pilot, able seaman, and abuse the other sort of man, whom
they call a good-for-nothing; but that the true pilot must
pay attention to the year and seasons and sky and stars and
winds, and whatever else belongs to his art, if he intends
to be really qualified for the command of a ship, and that
he must and will be the steerer, whether other people like
or not–the possibility of this union of authority with the
steerer’s art has never seriously entered into their thoughts
or been made part of their calling. Now in vessels which
are in a state of mutiny and by sailors who are mutineers,
how will the true pilot be regarded? Will he not be called
by them a prater, a star-gazer, a good-for-nothing?
Of course, said Adeimantus.”

3.2 Plato

21. Plato (427–347 BC) is a disciple of Socrates. Later, he established

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 his own school known as the Academy.
22. Plato developed an approach to understanding the world known
as Theory of Forms or Theory of Ideas. Accordingly, the real
world is just an imperfect representation of timeless, absolute and
unchanging Ideas. Ideas are the non-physical essence of all things.
23. He proposed the idea of a philosopher-king in his work Republic,
instead of relying on a system of law. According to Plato’s view,
the philosopher-king could attain absolute justice by consulting the
divine wisdom locked in his heart:
“And we foresaw that there was no chance of perfection
either in states or individuals until a necessity was laid
upon philosophers . . . of holding office; or until the sons
of kings were inspired with a true love of philosophy.
. . . For the true philosopher despises earthly strife; his eye
is fixed on the eternal order in accordance with which he
moulds himself into the Divine image (and not himself
only, but other men), and is the creator of the virtues
private as well as public. . . . If one son of a king were
a philosopher, and had obedient citizens, he might bring
the ideal polity into being. Hence we conclude that our
laws are not only the best, but that they are also possible,
though not free from difficulty.”
24. Karl Popper blame Plato’s idea of the philosopher-king for the rise
of dictators like Adolf Hitler and Joseph Stalin.

3.3 Aristotle

25. Aristotle (384–322 BC) was Plato’s student at his Academy. After
Plato’s death, Aristotle set up his own school called Lyceum.
26. Aristotle was considered an exceptional person of ancient Greece.
He developed syllogistic logic, scientific knowledge, particularly
biology and anatomy through dissections, and purportedly had
written about 200 treatises, of which 31 survived.

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27. Although much of what Aristotle theorised would be considered
wrongful thinking in modern times, he place in history should
not be forgotten because he set the foundation for subsequent
development in science and philosophy.
28. Book V of Aristotle’s Nicomachean Ethics concerns justice. He is
also credited for writing a treatise on the Constitution of Athens,
AΘHNAIΩN ΠOΛITEI.
29. On what is justice: “. . . he who breaks the laws is considered unjust,
and, secondly, he who takes more than his share, or the unfair man.
Plainly, then, a just man will mean (1) a law-abiding and (2) a fair
man. A just thing then will be (1) that which is in accordance with
the law, (2) that which is fair; and the unjust thing will be (1) that
which is contrary to the law, (2) that which is unfair.
We found that the law-breaker is unjust, and the law-abiding
man is just. Hence it follows that whatever is according to law is
just in one sense of the word. . . . for what the legislator prescribes
is according to law, and is always said to be just.”
30. Justice as virtue: “Justice, then, in this sense of the word, is
complete virtue, with the addition that it is displayed towards
others. . . . How virtue differs from justice in this sense is plain
from what we have said; it is one and the same character differently
viewed: viewed in relation to others, this character is justice;
viewed simply as a certain character, it is virtue.
For the great bulk, we may say, of the acts which are
according to law are the acts whic the law commands with a view
to complete virtue; for the law orders us to display all the virtues
and none of the vices in our lives.”
31. On rule of law: “. . . we do not allow an individual to rule over us,
but reason or law; for an individual is apt thus to take more for
himself, and to become a tyrant.”
32. On the role of the judiciary: “The magistrate’s function, then, is to
secure that which is just, and if that which is just, then that which is
equal or fair. But it seems that he gets no advantage from his office,
if he is just (for he does not take a larger share of the good things
of life, except when the larger share is proprotionate to his worth;
he works, therefore, in the interests of others, which is the reason
why justice is sometimes called ‘another’s good, as we remarked
before). Some salary, therefore, must be given him, and this he
receives in the shape of honours and privileges; and it is when
magistrates are not content with these that they make themselves
tyrants.”
33. On nature of justice: “. . . of that which is just as between citizens,
part is natural, part is conventional. That is natural which has the
same validity everywhere, and does not depend on our accepting
or rejecting it; that is conventional which at the outset may be
determined in this way or in that indifferently, but which when once
determined is no longer indifferent . . . .

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 Now, there are people who think that what is just is always
conventional, because that which is natural is invariable, and has
the same validity everwhere, as fire burns here and in Persia, while
that which is just is seen to be invariable.
But this is not altogether true, though it is true in a way.
Among the gods, indeed, we may venture to say it is not true at
all; but of that which is just among us part is natural, though all is
subject to change. Though all is subject to change, nevertheless, I
repeat, part is natural and part not.”
34. On equity: “. . . though what is equitable is just, it is not identical
with, but a correction of, that which is just according to law.
. . . What is equitable, then, is just, and better than what is just in
one sense of the word—not better than what is absolutely just, but
better than that which fails through its lack of qualification. And
the essence of what is, in those points where it fails through the
generality of its language. The reason why the law does not cover
all cases is that there are matters about which it is impossible to lay
down a law, so that they require a special decree.”

4 Stoicism
35. Stoicism was founded by Zeno of Citium (333–264 BC), in Athens
around the early 3rd century BC.
36. The name ‘Stoic’ refers to Stoa Poikile or ‘painted porch’ in Greek,
a place near the marketplace because the Stoics could not afford a
building like Plato’s Academy or Aristotle’s Lyceum.
37. Zeno started teaching about Stoicism around 301 BC, and Stoicism
was very influential among the ancient Romans. Stoic florished
until the middle of the second century (˜180 CE).
38. Very little has survived about Stoics. What we know today about
Stoics mainly came through the Romans, e.g. Cicero (106–43 BC).
39. According to Stoics god is both the world itself and the directing
force that pervades all matter, governs the world, and gives the
world its purpose of stucture.

4.1 Stoics’ View of Natural Law

40. Stoics differ from Aristotle in their understanding of ‘natural law’,
and this has partly influenced the nature of Roman law. Instead
of dividing laws into a two-fold classification like Aristotle, Stoics
uses ius civile (man-made civil law), ius gentium (people’s law)
and ius naturale (natural law).

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 4.2 Similarity to Animals
41. Ius gentium is considered a part of natural law. Unlike ius naturale,
which also governs the conduct of animals, ius gentium is only
found in humans.
42. On the other hand, Stoics view animals, like humans, as having
‘soul’ and are capable of forming natural norms. E.g. animals have
natural impulse to self-preserve.
43. The Stoics call a subset of activities in accord with impulse “proper
functions”. These proper functions are actions that, while natura
land in accord with impulse, “are ones which reason dictates our
doing” and that can be justified by reasoning as well.
44. E.g. of proper functions are honouring our family and country,
speding time with friends, looking after one’s health, acting
prudently and justly, marrying, conversing, and serving on
embassies.
45. Functions which are contrary to natural include adultery, theft and
violence.
46. Cicero: “They [Stoics] think it important to understand that nature
creates in parents love for their children; and from this source we
derive the general sociaiblity of the human race . . . Even among
animal nature’s power can be observed; wehen we see the effort
that they spend on giving birth and rearing their young, we seem
to be listening to the voice of nature itself . . . Hence it follows that
mutual attraction among humans is also something natural. The
mere fact of their common humanity reuqires one man nor to regard
another as alien.”
47. Diogenes: “They [Stoics] say that any animal’s first impulse is to
preserve itself¸ becausae it is at home with itself by nature from the
start. . . . the first thing that each animal is at home with its own
constitution and its awareness of it. . . . Nature, they say, makes
no distinction between plants and animals since, beside animals, it
directs plants without impulse and sensation. .”

4.3 No Universal Natural Law

48. Unlike Aristotle who believed that natural law was common and
universally observed, Stoics do not hold the same view. According
to them, even though God has made us disposed to select things that
are in accord with nature, but these natural tendencies to virtual can
be disregarded, for men are capable of selecting things contrary to
nature and supreme law, and indeed, usually do so. E.g. cities pass
laws which violate natural law, such as private property.

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 4.4 Against Slavery
49. Stoics argue that slavery is unnatural. Despite differences between
people, there are natural commonality and equality among men
and women. Property function is for human being to be free from
slavery and subordination.
50. Slavery is a provision of ius gentium, by which one person is
subject to another’s power contrary to nature.

4.5 Stoic Influence

51. Roman orator Cicero defined natural law as “right reason in
agreement with nature”.
52. Roman Stoics emphasised on human’s reasoning faculty to
discover ius gentium and ius naturale.
53. Consider this: According to Sextus: “In his [Chrysippus] books On
proper function, he says explicitly concerning the burial of parents:
‘When parents die, we should use the simplest methods of burial,
as though the body, like the nails and the teeth or hair, were nothing
to us and we give no care or attention to anything like that. So too,
if the flesh is edible, people should use it, as they should one of
their own parts such as a severed foot and the like.”’

5 Judeo-Christian Influence
54. The influence of religion generally, and Christianity specifically,
can be viewed as part of the natural law movement.
55. Two theologians are influential in this aspect: St Augustine and
Thomas Aquinas.

5.1 St Augustine
56. Augustine of Hippo (354-430 AD) is a Roman African Christian
theologian. He is recognised as a saint.
57. Augustine’s most important contribution to legal philosophy or the
‘metaphysics of law’ is his interpretation of Plato’s concept of ideas
(ousiai). Augustine regards the Platonic Ideas as ‘thoughts in the
Divine Mind’.
58. Augustine’s most far-reaching and most significant contribution to
the issue of the lex aeterna is his awareness of the grave dangers
inherent in any effort to equate the cosmic orderliness or lex
aeterna as God Himself, as the Stoics had done. Instead, Augustine
declared that the cosmic logos or lex aeterna is a ‘deliberate act’ of
God.

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59. Lex aeterna is the incontestable justification and ultimate expression
of the perfect order or orderliness that encompasses everthing
created. Hence Augustine calls the lex aeterna “the Divine Intellect
(ratio divina) and the Will of God which commands us to comply
with the natural order and forbids us to disturb it.”
60. Attributes or characteristics of lex aeterna:
• Eternal and immutable: “the norm of all order rests in the
eternal truth. It cannot be distrubed by the vulgar masses nor
by the course of secular events. As a power it rises above all
spatial limitations, and as to its timelessness and eternity it
remains immovable and unchangeable above all times/”
• All-encompassing: it controls and governs the whole of
creation, and every creature is subject to its ‘commands’. “In
no manner can anything remain outside the laws imposed by
this All-Highest Creator and Administrator (or Orderer) by
Whom the peace and order of the universe is administrated.”
61. Lex naturalis is the conscious participation of rational man in the
lex aeterna. It is also the lex naturalis moralis.
62. Lex naturalis moralis is imprinted or impressed upon the soul or
heart or mind of mind and hence is actually the imprint of the lex
aeternal on the rational soul.
63. Lex aeterna is the universal and absolute ‘norm’ or standard of
and for everything, including man, while lex naturalis (moralis)
signifies the particular form in which the moral aspects of the lex
aeterna can be apprehended by rational though finite man.
64. The fundamental precepts of the lex naturalis are known, or can
be known, by all men capable of right reasoning, no matter how
morally depraved men may be. God speaks to every man through
the lex naturalis.
65. Temporal or human laws are also ‘images’ of the lex aeterna,
which is a distinctly Platonic notion. Augustine’s answer to
why humans need human laws is that because of man’s evil and
sinful inclinations and vices, the lex aeterna and the lex naturalis
gradually came to be ‘obscured’ in the minds of men, and its
knowledge or understanding became rather vague. Human laws
had to be promulgated by men for men in order that there might be
once more legal and moral authority.

5.1.1 Just War

66. Although natural law requires us not to kill, there are times, where
this moral precept has to be violated.
67. “They who have waged war in obedience to the divine command,
or in conformity with His laws, have represented in their persons
the public justice or the wisdom of government, and in this capacity

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 have put to death wicked men; such persons have by no means
violated the commandment, ‘Thou shalt not kill.”’
68. “Wars should be waged by the good, in order to curb licentious
passions by destroying those vices which should have been rooted
out and suppressed by the rightful government.”

5.2 Thomas Aquinas

69. Thomas Aquinas (1225–1274) was a medieval Dominican friar in
the Italian region. He was canonised by Pope John XXII in 1323.
70. His most influential work is his Summa Theologiæ, which includes
a section on law. Aquinas was a prolific writer, and his prolificness
was considered as a Christian ‘miracle’.
71. Aquinas was influenced by Aristotle’s thinking and refers the latter
as the Philosopher in his Summa Theologiæ.
72. Aquinas divided law into four categories:
(i) Lex aeterna, external law
(ii) Lex divina, divine law
(iii) Lex naturalis, natural law
(iv) Lex humana, human law.

5.2.1 Eternal Law

73. Lex aeterna is God’s reason for the universe. It is necessary

since man is ordained to a particular end (eternal happiness) and
cannot attain this through his own powers but needs guidance and
direction. However, this ‘reason’ cannot be known by man.
74. “. . . supposing the world to be governed by divine providence
. . . that the whole community of the Universe is governed by the
divine reason. Thus the rational guidance of created things on the
part of God, as the Prince of the universe, has the quality of law
. . . This we can call the eternal law.”

5.2.2 Divine Law

75. Lex divina is the law of God revealed in the Scriptures.

5.2.3 Natural Law

76. Lex naturalis is the application of lex aeterna by rational creatures,

and the result is the same for all men since all are rational and “it
is proper for man to be inclined to act according to reason”.
77. “. . . it is clear that all things participate to some degree in the
eternal law; in so far as they derive from it certain inclinations
to those actions and aims which are proper to them. But, of all

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 others, rational creatures are subject to divine providence in a very
special way; being themselves made participators in providence
itself, in that they control their own actions and the actions of
others. So they have a certain share in the divine reason itself,
deriving therefrom a natural inclination to such actions and ends as
are fitting. This participation in the eternal law by rational creatures
is called the natural law.”
78. Aquinas further divides natural law into one primary precept and
other secondary precepts:
(1) “. . . this is the first precept of law, that ‘good is to be done and
pursued, and evil is to be avoided.’ All other precepts of the
natural law are based upon this: so that whatever the practical
reason naturally apprehends as man’s good (or evil) belongs
to the precepts of the natural law as something to be done or
avoided.”
(2) Secondary precepts:
(i) “. . . in so far as every substance seeks its own preservation
according to its own nature. Corresponding to this
inclination, the natural law contains all that makes for the
preservation of human life, and all that is opposed to it
dissolution.”
(ii) “Secondly, there is to be found in man a further inclination
to certain more specific ends, according to the nature
which man shares with other animals. In virtue of this
inclination there pertains to the natural law all those
instincts ‘which nature has taught all animals,’ such as
sexual relationship, the rearing of offspring, and the like.”
(iii) “Thirdly, there is in man a certain inclination to good,
corresponding to his rational nature: and this inclination
is proper to man alone. So man has a natural inclination
to know the truth about God and to live in society. In
this respect there comes under the natural law, all actions
connected with such inclinations: namely, that a man
should avoid ignorance, that he must not give offence to
other with whom he must associate and all actions of like
nature.”
79. On role of reasoning: “. . . the rule and measure of human action is
reason, which is the first principle of human action . . . . It is reason
which directs action to its appropriate end; and this, according
to the Philosopher [Aristotle], is the first principle of all activity.
. . . Reason has power to move to action from the will . . . , for reason
enjoins all that is necessary to some end, in virtue of the fact that
the end is desired. But will, if it is to have the authority of law,
must be regulated by reason when it commands. It is in this sense
that we should understand the saying that the will of the prince has
the power of law. In any other sense the will of the prince becomes
an evil rather than law.”

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80. On what happens when human law contradict ‘reasons’ or ‘natural
law’: “But will, if it is to have the authority of law, must be
regulated by reason when it commands. It is in this sense that we
should understand the saying that the will of the price has the power
of law. In any other sense the will of the prince becomes an evil
rather than law.”

5.2.4 Human Law

81. “. . . particular dispositions, arrived at by an effort of reason, are

called human laws: provided that the other conditions necessary to
all law . . . are observed.”
82. Justification for human law: “. . . there is in man a natural aptitude
to virtuous action. But men can achieve the perfection of such
virtue only by the practice of a ‘certain discipline.’—And men who
are capable of such discipline without the aid of others are rare
indeed.—So we must help one another to achieve that discipline
which leads to a virtuous life.”
83. Subordination of human laws to natural law: “Saint Augustine
says: ‘There is no law unless it is just.’ So the validity of law
depends on its justice. But in human affairs a thing is said to be
just when it accords aright with the rule of reason: and . . . the first
rule of reason is the natural law. . . . 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.”

5.3 The Role of Religious Laws in Modern Times

84. The role of religion, and Christianity in particular, as a basis of
natural law arose in a historical circumstances religious fervour
was strong, and it is difficult if not impossible to develop one’s
ideas outside of a religious context.
85. We should consider whether the same approach remains justifiable
in the modern context, particularly where society is multi-religious
and different religions do not subscript to the same moral precepts
and standards.

6 Enlightenment
6.1 Hugo Grotius
86. Hugo Grotius (1583–1645) or Hugo de Groot was a Dutch lawyer
and jurist.
87. In Mare Liberum (1609), Grotius advocated the idea of Freedom
of the Seas, although the concept had been in practice in the Asian
and Indian Ocean even before that:

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 The air belongs to this class of things for two reasons.
First, it is not susceptible of occupation; and second its
common use is destined for all men. For the same reasons
the sea is common to all, because it is so limitless that it
cannot become a possession of any one, and because it is
adapted for the use of all, whether we consider it from the
point of view of navigation or of fisheries.
88. Grotius most famous work is his De iure belli ac pacis or On
the Law of War and Peace (1625), which he wrote when he was
imprisoned for treason to the Dutch prince.
89. The clearest view on natural law from Grotius is found in Chapter
2 of Commentary on the Law of Prize and Booty (1603), titled
Prolegomena:
. . . two precepts of the law of nature emerge: first, that It
shall be permissible to defend [one’s own] life and to shun
that which threatens to prove injurious; a secondly, that It
shall be permissible to acquire for oneself, and to retain,
those things which are useful for life. The latter precept,
indeed, we shall interpret with Cicero b as an admission
that each individual may, without violating the precepts of
nature, prefer to see acquired for himself rather than for
another, that which is important for the conduct of life.
. . . He who bestowed upon living creatures their
very existence, bestowed also the things necessary for
existence. . . . since God bestowed these gifts upon the
human race, not upon individual men, b and since such
gifts could be turned to use only through acquisition
of possession by individuals, it necessarily followed
that τ ò σφτ ρισµ´vov, “what had been seized as his
own” by each person should become the property of
that person. Such seizure I called possessio [the act
of taking possession], the forerunner of usus [use], and
subsequently of dominium [ownership].
90. Pacta sunt servanda means pacts must be respected.

6.2 Thomas Hobbes

91. Thomas Hobbes (1588–1679) is an English philosopher. He is best
known for his 1651 book Leviathan.
92. Hobbes most famous idea is the ‘social contract’. A social contract
is a factitious compact to solve the problem of the state of nature,
which is a state of anarchy.
In such condition, there is no place for Industry, because
the fruit thereof is uncertain, and consequently no Culture
of the Earth, no Navigation, nor use of the commodities
that may be imported by Sea, no commodious Building,

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 no Instruments of moving, and removing such things as
require much force, no Knowledge of the face of the
Earth, no account of Time, no Arts, no Letters, no Society,
and which is worst of all, continual fear, and danger of
violent death, and the life of man, solitary, poor, nasty,
brutish, and short . . .
Naturally Every Man Has Right To Everything
And because the condition of Man, . . . is a condition
of Warre of every one against every one; in which case
every one is governed by his own Reason; and there
is nothing he can make use of, that may not be a help
unto him, in preserving his life against his enemyes; It
followeth, that in such a condition, every man has a Right
to every thing; even to one anothers body. And therefore,
as long as this naturall Right of every man to every thing
endureth, there can be no security to any man, (how strong
or wise soever he be,) of living out the time, which Nature
ordinarily alloweth men to live.
93. From this chaotic state of nature, Hobbes derives his natural law:
A Law Of Nature What
A LAW OF NATURE, (Lex Naturalis,) is a Precept,
or generall Rule, found out by Reason, by which a man
is forbidden to do, that, which is destructive of his life,
or taketh away the means of preserving the same; and to
omit, that, by which he thinketh it may be best preserved.
For though they that speak of this subject, use to confound
Jus, and Lex, Right and Law; yet they ought to be
distinguished; because RIGHT, consisteth in liberty to do,
or to forbeare; Whereas LAW, determineth, and bindeth
to one of them: so that Law, and Right, differ as much,
as Obligation, and Liberty; which in one and the same
matter are inconsistent.
The Fundamental Law Of Nature
And consequently it is a precept, or generall rule
of Reason, “That every man, ought to endeavour Peace,
as farre as he has hope of obtaining it; and when he
cannot obtain it, that he may seek, and use, all helps, and
advantages of Warre.” The first branch, of which Rule,
containeth the first, and Fundamentall Law of Nature;
which is, “To seek Peace, and follow it.” The Second, the
summe of the Right of Nature; which is, “By all means
we can, to defend our selves.”
The Second Law Of Nature
From this Fundamentall Law of Nature, by which
men are commanded to endeavour Peace, is derived this
second Law; “That a man be willing, when others are so
too, as farre-forth, as for Peace, and defence of himselfe
he shall think it necessary, to lay down this right to all

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 things; and be contented with so much liberty against
other men, as he would allow other men against himselfe.”
For as long as every man holdeth this Right, of doing any
thing he liketh; so long are all men in the condition of
Warre. But if other men will not lay down their Right,
as well as he; then there is no Reason for any one, to
devest himselfe of his: For that were to expose himselfe
to Prey, (which no man is bound to) rather than to dispose
himselfe to Peace. This is that Law of the Gospell;
“Whatsoever you require that others should do to you, that
do ye to them.” And that Law of all men, “Quod tibi feiri
non vis, alteri ne feceris. [Do unto others as you would
have them do unto you.]”
94. Reason for natural law:
The finall Cause, End, or Designe of men, (who
naturally love Liberty, and Dominion over others,) in the
introduction of that restraint upon themselves, (in which
wee see them live in Common-wealths,) is the foresight
of their own preservation, and of a more contented life
thereby; that is to say, of getting themselves out from
that miserable condition of Warre, which is necessarily
consequent (as hath been shewn) to the naturall Passions
of men, when there is no visible Power to keep them
in awe, and tye them by feare of punishment to the
performance of their Covenants, and observation of these
Lawes of Nature . . . .
95. Social contract to preserve peace:
. . . it is a reall Unitie of them all, in one and the same
Person, made by Covenant of every man with every man,
in such manner, as if every man should say to every man,
“I Authorise and give up my Right of Governing my selfe,
to this Man, or to this Assembly of men, on this condition,
that thou give up thy Right to him, and Authorise all his
Actions in like manner.” This done, the Multitude so
united in one Person, is called a COMMON-WEALTH,
in latine CIVITAS.
Soveraigne, And Subject, What
And he that carryeth this Person, as called SOVERAIGNE,
and said to have Soveraigne Power; and every one
besides, his SUBJECT.
The attaining to this Soveraigne Power, is by two
wayes. One, by Naturall force; as when a man maketh
his children, to submit themselves, and their children to
his government, as being able to destroy them if they
refuse, or by Warre subdueth his enemies to his will,
giving them their lives on that condition. The other, is
when men agree amongst themselves, to submit to some

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 Man, or Assembly of men, voluntarily, on confidence to
be protected by him against all others. This later, may be
called a Politicall Common-wealth, or Common-wealth
by Institution; and the former, a Common-wealth by
Acquisition.
96. Hobbes suggests that if the sovereign fails to govern properly, he
may lose his power:
In What Cases Subjects Absolved Of Their Obedience To
Their Soveraign
The Obligation of Subjects to the Soveraign is
understood to last as long, and no longer, than the
power lasteth, by which he is able to protect them. For
the right men have by Nature to protect themselves,
when none else can protect them, can by no Covenant
be relinquished. The Soveraignty is the Soule of the
Common-wealth; which once departed from the Body,
the members doe no more receive their motion from it.
The end of Obedience is Protection; which, wheresoever
a man seeth it, either in his own, or in anothers sword,
Nature applyeth his obedience to it, and his endeavour to
maintaine it. And though Soveraignty, in the intention of
them that make it, be immortall; yet is it in its own nature,
not only subject to violent death, by forreign war; but
also through the ignorance, and passions of men, it hath
in it, from the very institution, many seeds of a naturall
mortality, by Intestine Discord.

6.3 John Locke

97. John Locke (1632–1704) is a British philosopher. His major work
which has much relevance to jurisprudence is his Second Treatise
of Government: An Essay Concerning the True Origin, Extent, and
End of Civil Government published 1690.
98. On the state of nature:
Sect. 4. To understand political power right, and derive
it from its original, we must consider, what state all men
are naturally in, and that is, a state of perfect freedom
to order their actions, and dispose of their possessions
and persons, as they think fit, within the bounds of the
law of nature, without asking leave, or depending upon
the will of any other man. A state also of equality,
wherein all the power and jurisdiction is reciprocal, no
one having more than another; there being nothing more
evident, than that creatures of the same species and rank,
promiscuously born to all the same advantages of nature,
and the use of the same faculties, should also be equal
one amongst another without subordination or subjection,

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 unless the lord and master of them all should, by any
manifest declaration of his will, set one above another,
and confer on him, by an evident and clear appointment,
an undoubted right to dominion and sovereignty.
99. On natural law:
Sect. 6. But though this be a state of liberty, yet it is
not a state of licence: though man in that state have
an uncontroulable liberty to dispose of his person or
possessions, yet he has not liberty to destroy himself, or
so much as any creature in his possession, but where some
nobler use than its bare preservation calls for it. The
state of nature has a law of nature to govern it, . . . that
being all equal and independent, no one ought to harm
another in his life, health, liberty, or possessions: for
men being all the workmanship of one omnipotent, and
infinitely wise maker; all the servants of one sovereign
master, sent into the world by his order, and about his
business; they are his property, whose workmanship they
are, made to last during his, not one another’s pleasure:
and being furnished with like faculties, sharing all in one
community of nature, there cannot be supposed any such
subordination among us, that may authorize us to destroy
one another, as if we were made for one another’s uses, as
the inferior ranks of creatures are for our’s. Every one, as
he is bound to preserve himself, and not to quit his station
wilfully, so by the like reason, when his own preservation
comes not in competition, ought he, as much as he can,
to preserve the rest of mankind, and may not, unless it be
to do justice on an offender, take away, or impair the life,
or what tends to the preservation of the life, the liberty,
health, limb, or goods of another.
100. On the social contract:
Sect. 222. The reason why men enter into society, is the
preservation of their property; and the end why they chuse
and authorize a legislative, is, that there may be laws
made, and rules set, as guards and fences to the properties
of all the members of the society, to limit the power, and
moderate the dominion, of every part and member of the
society: for since it can never be supposed to be the will
of the society, that the legislative should have a power
to destroy that which every one designs to secure, by
entering into society, and for which the people submitted
themselves to legislators of their own making . . .
101. On civil disobedience:
Sect. 222. . . . whenever the legislators endeavour to
take away, and destroy the property of the people, or to

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 reduce them to slavery under arbitrary power, they put
themselves into a state of war with the people, who are
thereupon absolved from any farther obedience, and are
left to the common refuge, which God hath provided
for all men, against force and violence. Whensoever
therefore the legislative shall transgress this fundamental
rule of society; and either by ambition, fear, folly or
corruption, endeavour to grasp themselves, or put into
the hands of any other, an absolute power over the lives,
liberties, and estates of the people; by this breach of trust
they forfeit the power the people had put into their hands
for quite contrary ends, and it devolves to the people, who
have a right to resume their original liberty, and, by the
establishment of a new legislative,(such as they shall think
fit) provide for their own safety and security, which is the
end for which they are in society.
102. On property rights:
Sect. 27. Though the earth, and all inferior creatures, be
common to all men, yet every man has a property in his
own person: this no body has any right to but himself.
The labour of his body, and the work of his hands, we
may say, are properly his. Whatsoever then he removes
out of the state that nature hath provided, and left it in, he
hath mixed his labour with, and joined to it something that
is his own, and thereby makes it his property. It being by
him removed from the common state nature hath placed
it in, it hath by this labour something annexed to it, that
excludes the common right of other men: for this labour
being the unquestionable property of the labourer, no man
but he can have a right to what that is once joined to, at
least where there is enough, and as good, left in common
for others.
Sect. 33. Nor was this appropriation of any parcel
of land, by improving it, any prejudice to any other man,
since there was still enough, and as good left; and more
than the yet unprovided could use. So that, in effect, there
was never the less left for others because of his enclosure
for himself: for he that leaves as much as another can
make use of, does as good as take nothing at all. No body
could think himself injured by the drinking of another
man, though he took a good draught, who had a whole
river of the same water left him to quench his thirst: and
the case of land and water, where there is enough of both,
is perfectly the same.

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 6.4 Montesquieu
103. Montesquieu (1689–1755) is a French political thinker. His main
work was De l’Esprit des lois (The Spirit of the Laws) published
in 1748.
104. On separation of powers:
When the legislative and executive powers are united in
the same person, or in the same body of magistrates, there
can be no liberty; because apprehensions may arise, lest
the same monarch or senate should enact tyrannical laws,
to execute them in a tyrannical manner.
Again, there is no liberty, if the power of judging be
not separated from the legislative and executive powers.
Were it joined with the legislative, the life and liberty of
the subject would be exposed to arbitrary controul; for
the judge would be then the legislator. Were it joined to
the executive power, the judge might behave with all the
violence of an oppressor.
There would be an end of every thing, were the same
man, or the same body whether of the nobles or of the
people, to exercise those three powers, that of enacting
laws, that of executing the public resolutions, and that of
judging the crimes or differences of individuals.

6.5 David Hume

105. David Hume (1711–1776) was a Scottish philosopher in the
Enlightenment period. His most famous works are:
• A Treatise of Human Nature, published in three books from
1739 to 1740,
• An Enquiry Concerning the Principles of Morals (1751), being
is a rewrite of book 3 of his Treatise.
106. On distinction between ‘is’ and ‘ought’:
In every system of morality, which I have hitherto met
with, I have always remarked, that the author proceeds
for some time in the ordinary way of reasoning, and
establishes the being of a God, or makes observations
concerning human affairs; when of a sudden I am
surprized to find, that instead of the usual copulations of
propositions, is, and is not, I meet with no proposition
that is not connected with an ought, or an ought not.
This change is imperceptible; but is, however, of the last
consequence. For as this ought, or ought not, expresses
some new relation or affirmation, it is necessary that
it should be observed and explained; and at the same
time that a reason should be given, for what seems

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 altogether inconceivable, how this new relation can be a
deduction from others, which are entirely different from
it. But as authors do not commonly use this precaution,
I shall presume to recommend it to the readers; and am
persuaded, that this small attention would subvert all
the vulgar systems of morality, and let us see, that the
distinction of vice and virtue is not founded merely on
the relations of objects, nor is perceived by reason.
107. Actions are not cause by reasons:
We speak not strictly and philosophically when we talk
of the combat of passion and of reason. Reason is, and
ought only to be the slave of the passions, and can never
pretend to any other office than to serve and obey them.
108. Furthermore, Hume does not believe that morality can be derived
from reasons:
Take any action allowed to be vicious: Wilful murder,
for instance. Examine it in all lights, and see if you can
find that matter of fact, or real existence, which you call
vice. In which-ever way you take it, you find only certain
passions, motives, volitions and thoughts. There is no
other matter of fact in the case. The vice entirely escapes
you, as long as you consider the object. You never can
find it, till you turn your reflection into your own breast,
and find a sentiment of disapprobation, which arises in
you, towards this action. Here is a matter of fact; but it is
the object of feeling, not of reason. It lies in yourself, not
in the object. So that when you pronounce any action
or character to be vicious, you mean nothing, but that
from the constitution of your nature you have a feeling or
sentiment of blame from the contemplation of it. Vice and
virtue, therefore, may be compared to sounds, colours,
heat and cold, which, according to modern philosophy,
are not qualities in objects, but perceptions in the mind
...

6.6 Jean-Jacques Rousseau

109. Jean-Jacques Rousseau (1712–1778) was Geneva citizen living
in France. One of his important works is The Social Contract,
published in 1762.
110. Rousseau believes that in the state of nature people have complete
physical freedom and are at liberty to do essentially anything they
wish.
111. Rousseau disagree that the source of morality is human reasoning.
112. ‘Self-love’ (amour de soi) and ‘pity’ (piti) are the origins of all the
rules of natural rights.

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113. Humans enter into a social contract by giving up some of his
freedom, but in return obtains a guarantee of security from the
government.
114. “Each man is giving himself to all, gives himself to nobody; and
as there is no associate over whom he does not acquire the same
right as he yields others over himself, he gains an equivalent for
everything he loses, and an increase of force for the preservation of
what he has.”
115. Sovereign means the exercise of the ‘general will’. The ‘general
will’ is the collective will of the people. A state is only legitimate
if it is being guided by the general will of the people.
116. If the state fails to protect the freedom and equality of its people,
then the government is to be overthrown.
117. The idea of general will has been accepted as the basic premise of
parliamentary democracy of today.
118. “The passage from the state of nature to the civil state produces
a truly remarkable change in the individual. It substitutes justice
for instinct in his behaviour, and gives to his actions a moral
basis which formerly was lacking. Only when the voice of duty
replaces physical impulse and when right replaces the cravings of
appetite does the man who, till then, was concerned solely with
himself, realise that he is under compulsion to obey quite different
principles, and that he must now consult his reason and not merely
respond to the prompting of desire. Although he may find himself
deprived of many advantages which were his in a state of nature,
he will recognise that he has gained others which are far greater
value.”

6.7 Immanuel Kant

119. Immanuel Kant (1724-1804) was a Prussian German philosopher.
His major works are Critique of Pure Reason (1781), Critique of
Practical Reason (1788) and Critique of the Power of Judgment
(1790).
120. A ‘categorical imperative’ is an absolute, unconditional requirement
that must be obeyed in all circumstances and is justified as an end
in itself.
121. This is contrasted with a ‘hypothetical imperative’ which tells us
how to act in order to achieve a specific goal and the commandment
of reason applies only conditionally, e.g. “drink water to quench
thirst”. Actions under hypothetical imperative are capable of
producing ‘good’ (increasing one’s enjoyment), but they are
primarily motivated by a desire to meet specific purposes.
122. ‘Categorical imperative’ is the fundamental of moral reason.
Reason can determine the principle according to which all ends
can be determined as moral (what is ‘right’).

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123. According to Kant, ‘right’ is superior to ‘good’.
124. Two principles of categorical imperatives:
(i) First principle: Act in such a way that the maxim of your
action could be made the maxim of a general action.
(ii) Second principle: An action is right only if it can coexist with
each and every man’s free will according to the universal law.
125. A maxim is the rule or principle on which you act. E.g. I will help
at least one person everyday.

7 Twentieth Century
7.1 Lon Fuller
126. Lon L. Fuller (1902–1978) was an American philosopher. His
major work was The Morality of Law (1964).
127. Fuller rejected the Christian doctrines of natural law and the
rationalist doctrines of natural rights. He also rejected the
positivist’s approach to law.
128. Eight principles of ‘internal morality of law’:
• Generality
• Promulgation
• Prospectivity
• Intelligibility
• Non-contradiction
• Possibility of obedience
• Constancy through time
• Congruence between official action and declared rules.
129. ’Internal morality of law’ is the procedure version of natural law,
whereas ’external morality of law’ is the content of substantive
rules of law which are applied by the judge in arriving at his
decision.
130. ’External morality of law’ is the content of substantive rule of law
which are actually applied by the court.
131. According to Hart, Fuller’s internal morality of law is nothing more
than the neutral aids to the effectiveness of the lawgiving task.
132. On the other hand, the ‘external morality of law’ is the ‘morality
of aspiration’. It is the extent law’s substantive aims coincide with
moral demand.
133. Cf. Hart’s minimal content of natural law: human vulnerability,
approximate equality, limited resources, limited altruisms, and
limited understanding & strength of will.

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 7.2 John Rawls
134. John Rawls (1921–2002) was an American political philosopher
of the liberal tradition. His major work was A Theory of Justice
(1971).
135. Two principles of justice:
• Each person has an equal right to a fully adequate scheme of
equal basic liberties which is compatible with a similar scheme
of liberties for all.
• Social and economic inequalities are to satisfy two conditions.
First, they must be attached to offices and positions open to all
under conditions of fair equality of opportunity; and second,
they must be to the greatest benefit of the least advantaged
members of society.
136. The “greatest benefit of the least advantaged members of society”
is ‘the difference principle’.
137. To arrive at the two principles of justice, Rawls introduced
a thought experiement of ‘original position behind a veil of
ignorance’. It is to replace Hobbes’s ‘state of nature’.
138. The original position, is the selection of the principles for the basic
structure of society, when the person making the selection is behind
a ‘veil of ignorance’.
139. The ‘veil of ignorance’ puts the person make the selection
uncertain of which position he would enjoy after the selection
has been made. It is proposed that the person would choose the
‘minimax’ position, i.e. minimise the harm to the person who
suffers the most.
140. Hungarian economist John Harsanyi argues that the person would
choose instead the position which maximised expected utility.
141. In the event of conflict between principles, Rawls gives two priority
rules:
• First priority rule: Liberty can be restricted only for the sake
of liberty.
• Second priority rule: Justice over efficiency and welfare:
– An inequality of opportunity must enhance the opportunity
of those with the lesser opportunity (affirmative action?).
– An excessive rate of saving must be balanced to mitigate
the burden of those bearing this hardship. This is related
to the Just Saving Principles (Each generation must put
aside a suitable amount of real capital accumulation for
future generations).

7.3 John Finnis

142. John Finnis (1940–) is a living Australian legal philosopher. His
major work is Natural Law and Natural Rights (1980).

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143. According to Finnis, natural law consists of two sets of principles:
• Seven basic values,
• Practical reasonableness.
144. The seven basic values, which Finnis claims are self-evident:
(i) Life
(ii) Knowledge
(iii) Play
(iv) Aesthetic experience
(v) Sociability (friendship)
(vi) Practical reasonableness
(vii) Religion (spirituality)
145. Practical reasonableness allows us to choose a rational plan of life
to participate in the basic form of goods, which together produce
morality. Requirements of practical reasonableness:
• A coherent plan of life
• No arbitrary preferences among basic values, nor among
persons
• Detachment, avoiding fanaticism
• Commitment, avoiding apathy
• Limited relevance of consequences
• Respect for every basic value
• Common Good
• Follow one’s conscience.

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