NATIONS UNIVERSITY

DEPARTMENT OF LAW
UNIVERSITY OF LONDON - International Programmes
YEAR THREE
Bachelor of Laws (LL. B.)
JURISPRUDENCE COURSE
LECTURE NOTES
on
WORKSHEET 4
on
NATURAL LAW

UNIVERSITY OF LONDON SCHOOL OF THE NATIONS

International Programmes NATIONS UNIVERSITY

Prepared by Facilitator Ms. K.T.H. Stephenson- Attorney-at-Law

LL. B. (Credit)(UG), L.E.C. (H.W.L.S), Pg Cld (ComSec/UG),
UNODC Cert. IL & Terrorism, Diplofoundation (Malta) Adv. Cert. in
Internet Governance and ICT POLICY.

2015-2016
Academic Year
 JURISPRUDENCE

Worksheet No. 4- Study Guide 4 - 4.6

Kayreen T.H. Stephenson

September 2015

Natural Law

Introduction

Natural law, theory that some laws are basic and fundamental to human nature
and are discoverable by human reason without reference to specific legislative
enactments or judicial decisions. Natural law is opposed to positive law, which is
human-made, conditioned by history, and subject to continuous change. The
concept of natural law originated with the Greeks and received its most important
formulation in Stoicism. The Stoics believed that the fundamental moral
principles that underlie all the legal systems of different nations were reducible to
the dictates of natural law. This idea became particularly important in Roman
legal theory, which eventually came to recognize a common code regulating the
conduct of all peoples and existing alongside the individual codes of specific
places and times (see natural rights). Christian philosophers such as St. Thomas
Aquinas perpetuated this idea, asserting that natural law was common to all
peoples—Christian and non-Christian alike—while adding that revealed law gave
Christians an additional guide for their actions. In modern times, the theory of
natural law became the chief basis for the development by Hugo Grotius of the
theory of international law. In the 17th cent., such philosophers as Spinoza and
G. W. von Leibniz interpreted natural law as the basis of ethics and morality; in
the 18th cent. the teachings of Jean Jacques Rousseau, especially as interpreted
during the French Revolution, made natural law a basis for democratic and
egalitarian principles. The influence of natural law theory declined greatly in the
19th cent. Under the impact of positivism, empiricism, and materialism. In the
20th cent., such thinkers as Jacques Maritain saw in natural law a necessary
intellectual opposition to totalitarian theories.

Natural Law a widespread concept of political and legal thought, denoting the
aggregate or collection of principles, rules, laws, and values dictated by human
nature and therefore seemingly independent of concrete social conditions and
the state.

Natural law has always appeared as a value category relative to the legal order
in force in a given political society and to the system of social relations
consolidated by such a legal order. In views serving as apologetics this system
and the existing laws are declared to be in conformity with natural law and
natural justice; views calling for social transformations declare the society and its
laws to be in contradiction with natural law and justice. During the long history of

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natural law its content has varied according to the historical conditions, as well as
the social and political positions of its proponents. F. Engels noted that natural
law and natural justice are the “ideologized, glorified expression of existing
economic relations, now from their conservative, and now from their revolutionary
angle” (K. Marx and F. Engels, Soch., 2nd ed., vol. 18, p. 273).

The idea of natural law had already developed in ancient times, especially in the
classical world. It was used by the Greek Sophists and Aristotle and was central
to Stoicism. Along with civil and popular law Roman jurists singled out natural law
(jus naturale) as a reflection of the laws of nature and the natural order. Cicero
stated that a law of the state that contradicted natural law could not be viewed as
law.

During the Middle Ages natural law was primarily theological in form. It was an
integral part of religious doctrine: in the teaching of Thomas Aquinas, for
example, natural law is the concrete expression of divine reason guiding the
world and the basis of law created by the state. Even today the idea of natural
law continues to be a part of the official theological and political doctrine of the
Catholic Church.

The idea of natural law had its greatest social influence in the 17th and 18th
centuries as a fundamental ideological weapon in the struggle of the progressive
forces of society against the feudal structure. The ideologues of the
Enlightenment, such as Locke, Rousseau, Montesquieu, Diderot, P. Holbach,
and A. N. Radishchev, used the idea of natural law widely to criticize the feudal
orders as a contradiction of natural justice. In these views natural law was set
forth as the unchanged principles of man’s nature and reason. These principles
were to be embodied in laws, entailing the substitution of rule by law for rule by
men (that is, absolutism). The ideas of natural law were reflected in the French
Declaration of the Rights of Man and the Citizen (1789), the American
Declaration of Independence (1776), and other documents. During the same
period (17th-18th centuries) there were attempts to justify feudal-absolutist
regimes with the aid of natural law (for example, S. von Pufendorf in Germany).

With the stabilization of the capitalist order, 19th-century bourgeois ideologists

renounced natural law, declaring the bourgeois system to be the only possible
and just order, not requiring supralegal criteria for its justification. Positivism
opposed the idea of natural law especially vigorously.

The 20th century has seen the so-called renaissance of natural law. This
occurred because the transition of capitalism to the monopolistic and then the
state-monopolistic stage required the reevaluation of many legal institutions,
which both included natural law and was conducted with its aid. Increased
consciousness of the working masses forced the bourgeois ideologists to seek
popular slogans that could be directed against socialist ideas, and the theory of
natural law was convenient for these purposes (for example, the rejection of

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private property is declared to be a violation of the fundamental principles of
natural law). Since World War II natural law has been used in West Germany,
Italy, and certain other countries, on the one hand, as a demarcation line to
indicate a difference from fascist ideology and, on the other, as a means for
hindering far-reaching social and political reforms. “Renascent natural law” is
undergoing a strong influence from clericalism; it is also imparting a pragmatic
character to the concept of natural law (for example, natural law “with changing
content” or “natural law of a concrete situation”).

The Marxist materialist approach to law as a reflection of the economic order and
political structure of class society makes superfluous the concept of natural law
as a precondition for the existence and validity of existing law. In society there
may be only one system of law, which is established by the state. And in its law-
making activities the state is bound by the principles of a given social system,
which are determined not by the “nature of man” but by the socioeconomic order
and the means of production. At the same time Marxism does not consider false
everything that stands behind the concept of natural law. Marxism attaches great
significance to the inalienable rights of man and citizen and, in evaluating existing
law, assigns an important role to ideals and values (and justice as well),
considering them, however, socially conditioned, class-bound, and historically
changing, not a priori categories.

The rise of natural law in ancient Greece and Rome

NATURAL LAW THEORY

"...there is in nature a common principle of the just and unjust

that all people in some way divine [i.e., discern], even if they have no
association or commerce with each other."
(Aristotle, 1991, On Rhetoric I:13:102)

http://www83.homepage.villanova.edu/richard.jacobs/MPA%208300/theories/nat
ural%20law.html

Although Aristotle is often times cited as the philosopher who first described the
concept of a natural law―the assertion that there is a natural order to the human
world, that this order is good, and that people ought therefore not violate it―it
actually was the 4th-century b.c.e. playwright Sophocles who, in Antigone, wrote
first about an immutable and eternal law. In the play, Antigone testifies to Creon
that the principles of natural law are rooted in Nature and knowable by the power
of reason. He says: "These laws are not for now or for yesterday, they are alive
forever; and no one knows when they were shown to us first" (1973, pp. 38-39).

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Three centuries later, the Roman orator and statesman Marcus Tullius Cicero
articulated the concept of natural law more forcibly. In his Laws, Cicero
described "Law" as "the highest reason, implanted in Nature, which commands
what ought to be done and forbids the opposite" (as cited in Morris, 1959, p. 44).
In addition, Cicero noted that right is based, not upon men's opinions, but upon
Nature (p. 45).

Much of what is known today about natural law, however, was codified by St.
Thomas Aquinas in the 13th century c.e.

In Question 94 of the Prima secundae of his Summa theologiae (I.ii), Aquinas

asserted the concept of an eternal law which provides the road map for all ethics
and ethical conduct. This eternal law, Aquinas reasoned, is God's device to
govern the entire community of the universe toward the common good. The
divine law, as represented for example in the Ten Commandments, makes
eternal law more concrete and knowable. Natural law then transforms the laws
emanating from the realm of the supernatural, making them knowable in the
hearts of human beings and instruct them to do good and avoid evil. Lastly,
human law which translates natural law into concrete norms governing particular
peoples and nations is the most concrete and specific application of eternal law
in the realm of the nature.

This hierarchical structure of law, where the supernatural trumps the natural and
the higher order trumps the lower order, is represented in Figure 1.

Figure 1. The hierarchical structure of law.

Eternal law
the realm of the supernatural ↕
Divine law

---------------------------- ------- ↕ -------

Natural law
the realm of the natural ↕
Human law

In the realm of the natural, human beings possess the freedom of will to act in or
out of accordance with eternal and divine law. For theists, conformity to eternal
and divine law as these are evident in the dictates of natural law brings about
happiness while, for non-theists, conformity to natural law alone brings about
happiness. Conversely, nonconformity with natural law results in unhappiness
for both theists and non-theists.

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Since the time of Thomas Aquinas, natural law has provided the theological
rationale implicit in much of the Roman Catholic Church’s moral teaching and,
because of this, natural law is often times erroneously believed to be a Roman
Catholic dogma. In fact, natural law theory is not Church dogma and has proven
influential particularly American jurisprudence, especially as the nation's
Founding Fathers envisioned it. For example, Goebel has noted that Alexander
Hamilton maintained a lifelong belief in a divinely ordained eternal
law....[Hamilton wrote] 'No tribunal, no codes, no systems can repeal or impair
this law of God, for his eternal laws it is inherent in the nature of things' (1964,
pp. 821, 838). Likewise, George Mason used the concept of natural law in Robin
v. Hardaway (1772) to contest a State of Virginia slavery statute. Mason argued:

All acts of legislature apparently contrary to natural right and just are, in our laws,
and must be in the nature of things, considered as void. The laws of nature are
the laws of God; Whose authority can be superseded by no power on earth. A
legislature must not obstruct our obedience to him from whose punishments they
cannot protect us. All human constitutions which contradict his laws, we are in
conscience bound to disobey. Such have been the adjudications of our courts of
Justice.

While it is accurate to state that the Constitution of the United States is the
supreme law of the land (US Constitution, VI:2), because the Constitution is
based upon the natural law, even the articles of the Constitution and its
amendments as human laws are subject to divine and eternal law. As Rice
(1995) comments, if this were not the case, judges would be incapable of
overturning duly-ratified constitutional amendments that violated natural, divine,
or eternal law. Rice argues: Suppose, for example, a constitutional amendment
was adopted that required disenfranchising persons of certain races or religion.
Would jurists be bound to uphold the amendment and, if they were not, what
would they appeal to as a more supreme law (p. 102)? In terms of statutorial
law, like the Civil Rights Act of 1964, what allows one law forbidding segregation
to trump other laws upholding segregation? Simply that they are better, more
enlightened laws? Certainly not. A more supreme law, divine and eternal law,
forbids denying the fundamental equality of human beings. For that reason
alone, human laws like the Civil Rights Act of 1964 trump human laws that
violate divine and eternal law (p. 82). Otherwise, the laws enacted by the Nazi
regime and other totalitarian regimes like that of the Ayatollah Khomeini in Iran,
regardless of their content, were valid because they were duly enacted (pp. 78-
79).

Enlightenment and post-Enlightenment ethicists reject the realm of the

supernatural, upon which Aquinas' hierarchical structure depends. Instead,
these ethicists deal only with the realm of the natural, some accepting the idea of
a natural law while most reject it, contending that all law is a mere human
invention. In an extreme, these ethicists reject objective standards of goodness,

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leaving human beings to decide subjectively what constitutes the good or the
bad.

Despite its critics, the fact that natural law theory has persisted for so many
centuries provides sufficient reason to consider what natural law theory may
have to contribute to contemporary discourse about ethics.

The Natural Law...

Although natural law is not written in the sense that human laws are codified, it is
knowable and binding by nature. That is, natural law manifests itself to human
reason not by any external sign but by a rationally conducted examination of
human nature with all its parts and relations. In this sense, natural law is virtual
because it exists in every human being even before ones power of reason is
sufficiently developed to form actual ethical judgments.

One of the oldest recorded definitions of natural law comes from the Roman
orator, Cicero. He asserted that natural law is right reason in agreement with
nature, of universal application, unchanging and everlasting. There will not be a
different law at Rome and at Athens, and different law now and in the future, but
one eternal and unchangeable law for all nations and for all times. (1928, 3.33)

Rather than utilizing the customs and laws of a particular society as a standard
for determining ethical conduct, natural law theory asserts that all human beings
by their nature seek happiness and this standard defines conduct as intrinsically
ethical and other conduct as intrinsically unethical. Human beings are hot wired
for happiness, goal-driven beings inclined toward the good. Plato and Aristotle
understood happiness to be a good pursued solely for its own sake as an end,
not a means to another end. The converse is also true, namely, that humans are
hot wired to avoid unhappiness. Hence the similarity between natural law and
the aphorism, Do good and avoid evil, which some have identified as "the natural
law."

A general paradigm explicating the content of the natural law exhibits the
following seven elements:

1.the natural law is naturally knowable by all human beings;

2.the natural law is knowable by the power of reason;

3.the natural law is naturally authoritative over all human beings;

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4.the good is prior to the right;

5.right conduct is action that responds non-defectively to the good;

6.there are a variety of ways in which conduct can be defective with respect to
the good (i.e., intention, circumstance, situation); and,

7.some of these ways can be captured and formulated as general rules.

This paradigm hinges, of course, upon the notion that human beings possess a
common nature and similarity in physiological constitution which makes human
beings possess some desires in common and these desires may be so central to
human aims and purposes that human beings can build important and correct
precepts of rationality around them (e.g., each human being when properly
biologically functioning aims to avoid a violent death). Thus, natural law asserts
that ethical conduct is not subjectively defined but is perfective or completing of
nature, where what is perfective or completing of nature depends upon its nature
(i.e., what is good for an acorn to completely and perfectively be an oak tree
differs from what is good for a dog is to completely and perfectively be a dog).
Thus, what is good for a human being is to completely and perfectly be a human
being depends upon the kind of thing a human being is by nature.

The idea here is that human beings can derive from a metaphysical study of
human nature and its potentialities and actualizations the conclusion that certain
things are good for human beings. Thus, the primary precepts of the natural law
bid and oblige human beings to pursue these things. Ethicists have argued the
following should be included as the goods:

•life

•truth and knowledge of it

•physical and mental health

•procreation

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•practical reasonableness

•aesthetic value

•social life

•authenticity

•excellence in work and play

•theoretical and practical knowledge

•justice

•friendship and community

•rational conduct

•integrity

•self-integration and inner peace

•pleasure and the avoidance of pain

When human beings focus upon their role as recipients of the natural law, the
natural law constitutes the principles of practical rationality by which human
conduct is to be judged as reasonable or unreasonable. What each of the goods

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listed above requires in terms of ethical conduct is not specifically dictated by
natural law. It is, rather, grasped only by a virtuous, practically wise person.

Natural Law and Ethical Decision Making...

Building upon this foundation, natural law theory argues that once the power of
reason has determined what is necessary (the good), it requires or legislates
those actions which promote ones well being and forbids or proscribes those
actions which do not promote happiness. Because human beings are primarily
rational beings and, by virtue of this fact, can intellectually know what is good and
willfully choose it by using the power of reason to reflect upon what ones
physical, psychological, and rational needs, it is possible for a person to perfect
oneself and attain well-being, happiness, perfection, or what Maslow (1943)
called self‑actualization.

Notice that the decision‑making process implied by natural law theory

emphasizes the minds power while denigrating the role of emotions and feelings.
In legislating conduct that human beings must perform and must avoid, the
power of reason translates eternal ideas about truth, justice, goodness, beauty,
and the like into virtuous conduct that human beings are obliged to enact. In this
sense, then, the power of reason functions as a noninfallible law giver.

Many actions are ethically good in and of themselves or, at least, are ethically
indifferent, including: helping the poor and destitute, marital sex, bearing and
rearing children, intellectual, aesthetic, and kinesthetic pursuits, as well as the
exchange of goods and services in the marketplace. Other actions which do not
promote achievement of the good must be shunned. Murder, suicide, theft, lying,
and rape are examples of such intrinsically unethical conduct that natural law
theory asserts no human being may ever commit no matter how many good
consequences might result from performing acts these and similar acts.

This obligation to pursue the good and to avoid evil is neither specific to any
culture nor is it time bound. Instead, this obligation extends to all people
everywhere and at all times because of the common nature shared by all human
beings. Natural law is, as it were, constitutive of human nature.

While some philosophers have called natural law theory absolutist and, in its
strict application it is absolutist, the theory does highlight some rather important
aspects of the ethical decision‑making process.

One aspect is the notion that it is not enough simply to conduct oneself according
to the dictates of natural law. What is also significant is the intention behind the
action; it must also be good. That is, one can perform a good act with an evil
intention; such conduct is ethically wrong because it condones evil and reveals
one’s character to be unethical. For example, it is unethical to tell someone the
truth with the explicit intent of causing harm to that person.

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Another aspect of ethical decision making natural law theory illuminates is how
circumstances are crucial to the ethical decision-making process. They can
transform an action that otherwise is ethical into an unethical action. For
example, sexual relations are good in themselves but not with someone who is
not a spouse or of the same gender.

Lastly, while the consequences of conduct oftentimes are important for deciding
what does or does not contribute to ones well-being, happiness, or perfection,
natural law theory maintains that the consequences do not provide the ultimate
criterion for determining whether an action is ethical or not. Conduct that
produces unethical effects at all times and in all circumstances is unnatural
because it violates natures essential tendency toward preserving itself. The
effects of conduct, then, by themselves do not make the action unethical; they
demonstrate that the act is unnatural and that characteristic, in and of itself,
makes the conduct unethical. For example, the natural end of sexual relations is
self‑preservation as well as the preservation of the human species through the
procreative act. When sexual relations cannot fulfill this natural end as, for
example, in the conduct of homosexual relations as well as the conduct of sexual
relations where an unnatural means is introduced to impede the possibility of
procreation, this conduct is unnatural and this characteristic alone is what makes
these and other similar actions unethical.

Opponents of Natural Law Theory...

As might be expected by the applications of natural law theory cited above, it has
come under heavy fire, especially in recent decades, and for a variety of reasons.

Some have vociferously argued that there is no such thing as a natural law.
Instead, these individuals and groups argue that it is a hypothesis or intellectual
invention intended to proscribe conduct that those hypothesizing or inventing the
theory want to impose unilaterally upon others. Advocates of homosexual rights,
for example, assert that sexual relations are good in themselves and that this
applies not just to those who have entered into marriages sanctioned by civil law
but also to those who are not married yet love one another. Some feminists have
also argued against natural law. These persons insist that natural law provides
the rationale used historically to subject women to patriarchal domination under
the specious argument that nature determines gender roles. Interestingly,
antagonism toward natural law theory joins military theorists with homosexual
rights advocates as well as some feminists. These theorists find the strict
application of the natural law untenable because it forbids the killing of innocent
civilians even if the conduct promises to save many lives. In developing military
plans, the goal is to minimize "collateral damage," especially the number of
noncombatant deaths. That noncombatants will die as a consequence of military
action is presumed.

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Another argument advanced against natural law theory is that many things that
are in one sense or another unnatural are not believed by most people to be
unethical. Take, for example, vaccinations, anesthesia, shaving, and
chemotherapy. There are also many things that are, in one sense or another
natural, yet many people believe are unethical. Examples include: revenge,
prejudice, or rubbing one’s eye when there is something in it. Consider the
situation confronting an emergency room physician: if she fails to restore the
natural functioning of the human being―which requires doing something
unnatural―by fixing a broken arm or to correct for a dietary deficiency causing
diarrhea, she would seemingly be violating the natural law. Likewise, if a
dermatologist fails to provide hair transplants, even to those who believe they will
be miserable without the transplants, the dermatologist does not violate the
natural law.

To remedy for situations where conduct might cause both good and evil effects,
natural law theorists invoke the principle of double effect.

In sum...

Natural law, then, is promulgated to human beings through the power of reason
and the content of the natural law is knowable. Sufficiently normal and mature
human beings know the general principles implied by the natural law, but
deductions about what the law and its principles mean in concrete circumstances
are not as clear. Different conclusions and applications can be derived by
equally wise people. Thus, a diversity of opinion exists about what the natural
law requires in actual practice and is a matter not of theoretical or abstract
wisdom but of practical wisdom by which human beings discern what ought to be
their conduct in particular circumstance as the seek to do good and avoid evil.

The natural law of St. Thomas of Aquinas

St. Thomas of Aquinas - 13th Century

Theorists who support Natural Law guidance assume that certain facts about
humans and their society provide the correct basis for laws that guide human
interaction. Regardless of the theological vis-à-vis secular opinions it is agreed
between both schools of thought that 'real' laws are those, which meet a moral
standard, found by using the right facts and practical reasoning. Historically, one
of the most influential natural law jurists was St. Thomas of Aquinas whose
teachings form the basis of the Roman Catholic natural law traditions. Aquinas
integrates the rationalist and religious approaches to Natural Law. He greatly
influenced Western ideals in the area of ethics, political theory but, in particular,
his teachings in the field of natural law held him in the highest of esteem within
the Catholic Church, prompting Pope Benedict XV to declare

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Aquinas believed that the eternal law of divine reason is wholly unknown to man
as only God knows its full extent but that it is partially known not only through
revelation (the Commandments, the scriptures) but also through the application
of reason. He also contends that human law derived from divine law which
governed the relationship between all things created by Him. According to
Aquinas, God is the highest good and the reason all matter exists and that such
creations exist together in a hierarchy known as the Principle of Subordination.

Aquinas divided law into four main categories -

Eternal Law

Such law constitutes God's rational guidance of all created things and is derived
from the divine wisdom and based on a divine plan. Man can never understand
eternal law in its entirety but shall be guided by it as he moves through life. On
the one hand such law resides with God alone, mysterious and inaccessible. En
revanche as it is responsible for various complexities throughout nature, mankind
can figure out certain aspects of it. Promulgated law, mentioned by Aquinas
consists of practical reason emanating from a ruler or a figure of authority in a
community. By the same rationale, he contends that God, as a ruler of the
universe also has the nature of a law and as He is not subject to time such law is
eternal.

Divine Law

Eternal law which manifests itself in the Christian scriptures - the

Commandments or the will of God revealed in the Old and New Testaments.
Such law, according to Aquinas, was necessary as humans require guidance on
how to perform proper acts. It was also required to keep checks on the
uncertainty of human judgement and to provide divine insight on issues they are
not competent to judge for themselves.

The Natural Law

According to Aquinas,

It is evident that all things partake somewhat of the eternal law, in so far as,
namely, from its being imprinted on them …Wherefore it (humans nature) has a
share of the Eternal Reason, whereby it has a natural inclination to its proper act
and end: and this participation of the eternal law in the rational creature is called
the natural law

From this Aquinas contends that Natural Law exists among man in the world and
it is as he states …as though the light of natural reason by which we discern
good from Evil. From this Aquinas gives us his definition of the Natural Law

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(participation of humans in Eternal Law) and the first principle of Natural Law (the
capacity to differentiate good from evil).

Human Law

Is derived a combination of both the Divine and Natural Laws and must be
directed toward the common good. Such law can vary in accordance with time
but its essence must be just as an unjust law is not law (lex injusta non est lex).
For Aquinas an unjust human law is one that furthers the interests of the lawgiver
solely; or exceeds the power of the lawgiver; or imposes unequal burdens on the
society being governed. Under this rationale therefore, Aquinas held the belief
that disobedience to an unjust law becomes a duty as if the law is contrary to
Divine law, man is released from obedience - we should obey God rather than
man. However such disobedience should be avoided if it were to lead to social
instability, which is a greater evil than the existence of an unjust law in the first
instance.

Aquinas was concerned with the nature of laws primarily rather than the nature of
a legal system or how laws operate. John Finnis, as will be seen later, was
concerned with both equally. Law, according to Aquinas, is the use of reason for
the common good made by those that care about the community and made
known to this community. Aquinas believed that God gave humans
characteristics the primary of which was our capability for rationality and reason.
Mankind tends to do things naturally thus mirroring God as supremely rational.
Using reason and rationale we can deduce what is self-evidently good and worth
pursuing or what is self-evidently bad or evil and to be avoided. In this pursuit of
good things we make laws for the common good using reason and are, again
according to Aquinas, participating in God's rational world order.

Aquinas believed there are numerous ways to solve a problem and

acknowledges that different societies or cultures may place different restrictions
on behavior - following from this there is not only one way to make law. The
critical point to acknowledge is that whatever means are used are accepted by
rational people. When dealing with positive/man made laws Aquinas classifies
them into real or defective. The former relate to reasonable standards of conduct
in the pursuit of the common good while the latter refers to laws that do not meet
criteria established in natural law principle or are unjust (do not meet the
requirements of justice) and so these laws can be justifiably disobeyed.

What are the precepts of Natural Law according to St. Thomas of Aquinas?

According to Aquinas, there are three precepts that should be considered when
discussing Natural Law. The Angelic Doctor states:

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Because in man there is first of all an inclination to good in accordance with the
nature which he has in common with all substances: inasmuch as every
substance seeks the preservation of its own being, according to its nature: and
by reason of this inclination, whatever is a means of preserving human life, and
of warding off its obstacles, belongs to the natural law.

Secondly, there is in man an inclination to things that pertain to him more

specially, according to that nature which he has in common with other animals:
and in virtue of this inclination, those things are said to belong to the natural law,
“which nature has taught to all animals” [Pandect. Just. I, tit. i], such as sexual
intercourse, education of offspring and so forth.

Thirdly, there is in man an inclination to good, according to the nature of his

reason, which nature is proper to him: thus man has a natural inclination to know
the truth about God, and to live in society: and in this respect, whatever pertains
to this inclination belongs to the natural law; for instance, to shun ignorance, to
avoid offending those among whom one has to live, and other such things
regarding the above inclination.

To wit, the three precepts are (1) self-preservation (2) procreation & education of
offspring and (3) natural inclination toward the good, God; however, how do
these precepts relate to one another? Are they all equal? Do they compete
against one another? To the contrary, Aquinas holds to the general truth that a
higher principle orders the lower. For example, the first and second precepts are
those we share with both plants and animals. All things seek self-preservation.
The second precept is shared with animals, because irrational animals procreate
and educate their offspring; however, it is the third precept, the highest precept,
that is predicated upon man as man, i.e., the rational animal. It is specifically
man’s inclination toward the good, the truth, God, that should order the other two
precepts.

For example, among the irrational animals, it appears the first precept of self-
preservation is not always true. Nature is full of examples of mothers who would
die to protect their young or males that die in order to procreate. In these
examples, the lower precept of self-preservation is ordered and governed by the
higher precept of procreating and educating offspring. In the rational animal,
man, the third precept of seeking God should order self-preservation and the
manner in which humanity procreates and educates. The operative word is
should, because man is not forced to hold to the precepts of Natural Law – but
only chooses to via reason. The wicked, for example, will not hold to these
precepts nor will they order them correctly.

Required reading:
see A RTICLE ATTACHED BY Thomas D. D’Andrea, University of Cambridge.

http://people.wku.edu/jan.garrett/302/aquinlaw.htm

15
The Fall and Rise of Natural Law

The secularisation of Natural Law began with the advent of the Reformation in
Europe and the consequent decline of the Roman Catholic Church. This
essentially resulted in Protestant theorists developing their own theories on
natural law that were not based on papal teachings. Natural law doctrines faced
further decline throughout the 18th century and into the 19th century where
emphasis was placed on the notions of State power and State coercion. This era
also saw a rise in the positivists approach to jurisprudential theories which were
promoted by Jeremy Bentham and John Austin. Such jurists sought to separate
the notions of what law is as opposed to what the law ought to be. The concepts
of morality and law should be kept apart and the principles of Natural Law should
belong more to the former than the latter.

The 18th Century

In this, the ‘age of reason’, thinkers like Charles de Montesquieu (1689 – 1755),
David Hume (1711-76) and Adam Smith (1723-90) criticized Natural Law theory
for its assertion that there was some ultimate, metaphysical purpose to human
existence and human society, separate from the moral and physical realities of
everyday life.

Hume especially attacked the a priori reasoning behind most Natural Law
thought, especially what he regarded as being the irrational attempt to derive
ought propositions from is propositions.

The 19th Century

This period saw an even more virulent attack on Natural Law theory, as
emphasis was placed on the notions of State power and coercion. For example,
the German philosopher, Hegel, sought to deify the State, which he regarded as
an end in itself, an absolute sovereign whose essence derived from the laws of
history and was, therefore, not subject to some external, higher law.

The 19th Century also saw the rise of the Positivist approaches to law, as
expounded by such theorists as Jeremy Bentham And John Austin, which sought
to place a strict separation between the two notions of what the law is and what it
ought to be. Law and morality could and, indeed, should be kept separate, and
the principles of Natural Law were regarded as belonging more to the realm of
morality than to that of law.

The 20th Century – the revival of Natural Law theory

The 20th century saw a rebirth of Natural Law approaches to the study of law. To
the forefront was the notion that there must be a higher set of principles (as

16
distinct from positive law) which must satisfy natural law theories if law was to be
regarded as valid. This revival was the result of a number of historical
occurrences - Nazism (whose acts were based on Nazi laws); the development
of nuclear weapons and other weapons of mass destruction; the general decline
of social and economic stability worldwide

Modern natural law theory I: Finnis

The restatement of Natural Law

JM Finnis proceeds from a denial of the criticism, first aimed by David Hume, this
classical Natural Law theory irrationally sought to derive an ought from an is, that
is, to derive normative values by reasoning from observed natural facts. He
concedes that some Natural Lawyers of the classical school, especially the
Stoics and the medieval rationalists, may have done so. However, he bases his
own restatement of Natural Law on the writings of Aristotle and Aquinas, whom
he claims were not guilty of irrationality.

In his re-interpretation of the writings of Aquinas, Finnis argues that the

normative conclusions of Natural Law are not based on observation of human or
any other nature. Rather, they result from a reflective grasp of what is self-
evidently good for all human beings and from a practical understanding gained
by experiencing one’s own nature and personal inclinations.

Finnis argues that objective knowledge of what is right is made possible by the
existence of what he calls ‘basic forms of human flourishing’, which are
objective ‘goods’, distinct from any moral evaluations of goodness. These are
generally things which, for most people, make life worthwhile, and they are self-
evidence – that is, they would be ‘obvious to anyone acquainted with the range of
human opportunities’.

Natural Law, then, is a set of principles of practical reasonableness to be utilized

in the ordering of human life and human community in the process of creating
optimum conditions for humans to attain the objective goods. These conditions
constitute the ‘common good’.

Finnis lists seven objective goods which he regards as being irreducibly basic.
These are:

1. Life – the first basic value;

2. Knowledge – a preference for true over false belief;
3. Play – performance for the sake of it;
4. Aesthetic experience – the appreciation of beauty;
5. Friendship or sociability – acting for the sake of one’s friends’ purpose or
well being;

17
 6. Practical reasonableness- the use of one’s intelligence to choose actions,
lifestyle, character, etc;
7. Religion – the ability to reflect on the origins of the cosmic order and
human freedom and reason.

Marriage - a recent addition to Finnis' list of 'basic goods'. Marriage, per

Finnis, is that between a male and a female and any sexual activity between
non-married persons that is not procreative is inherently immoral.

The first three (a) to (c) above Finnis calls substantive goods, which exist
prior to action. The final group of these basic goods he terms reflexive goods
which depend on our choices.

These objective goods are attainable only in a community of human beings

where there is a legal system which facilitates the common good. Rulers have
authority to work for the common good, and unjust laws which work against the
common good may be valid, but they do not accord with the ruler’s authority. The
position of rulers may give the rules which they create a presumptive authority,
but those that are unjust, though they may be technically valid, will be no more
than a corruption of law.

Finnis - The Principles of Practical Reasonableness

To achieve these goods Finnis also has nine principles of practical

reasonableness that are what might be called "methods of operation" that are
to be utilised in the ordering of human life and the human community and the
creation of the optimum conditions to attain these 'basic goods' - such
conditions equate to the common good. These 'basic methodological
requirements' when taken in part or as a whole allow us the capability of
figuring out the morally correct way of acting.

The first requirement of practical reasonableness is a rational plan of life. Man

must have a structured set of purposes which he should commit to and which
guide him through life. Despite life, being subject to many changes one
should not just live from moment to moment. Any commitment to a rational life
plan will require one or some of the 'basic goods' but such commitment will
only be rational if it is based on ones capacities, circumstances and tastes.

Secondly, I am of no more value than others but my own well being is my

concern and interest and by having a preference for my own well being I will
do what is reasonable. Do unto others as you would have them done unto
you; put yourself in the other mans shoes; do not condemn others for what

18
your are willing to do yourself - these are all requirements of reason and
ignoring them is being arbitrary between individuals.

Good is to be done and evil is to be avoided - a principle taken directly from

Aquinian teachings and also Aquinas' basic principle of moral action. In doing
so one ought to choose and will only those possibilities where willing and
action are compatible with 'integral human fulfillment'. This principle gives
Finnis (as we shall see further in this essay) and others committed to global
human rights the most ammunition i.e. all actions that work against such
fulfillment are basically wrong.

The fourth and fifth principles are related to each other and that of adopting a
coherent life plan. One must have a certain detachment from all specific
projects that are undertaken. If failure occurs in any of these commitments or
projects we must not develop an apathetic attitude thereafter to life. A healthy
balance must exist between fanaticism, apathy or refusal to participate. Thus
if any commitment fails or appears to be heading that direction then one must
look for a more creative or rewarding way to perform same.

A further principle relates to the requirement to bring good to the community

by actions that are efficient for their purpose. Over a wide range of
preferences, it is reasonable for such a community to seek the maximum
satisfaction of these preferences. Related to this is the need to favour the
common good of ones community or society on a macro scale.

Penultimately, no man should choose an act that would damage or negatively

affect the participation of any one or more of the basic human goods - it is
always necessary to weigh up ones actions. Finally the ninth requirement
outlines that one should not do what one does not feel like doing so man must
act in accordance with his conscience - a reiteration of a belief proposed by
Aquinas.

The Concept of Law - Focal vis-à-vis Penumbral

As discussed, Finnis outlines that the human 'basic goods' must be utilised in
a community or society, as only then will the conditions to achieve these exist
in the pursuit of a common good. This common good requires a legal system
but such systems can sometimes work against the common good Finnis
acknowledges this and states that a ruler has the authority to act for the
common good. If he acts in a way that appears to go against the common
good or any of the principles of practical reasonableness such actions lack
the authority that they should have had. Just as Aquinas believed, Finnis says
such laws lack moral authority, they do not bind the conscience of man and
one is neither morally obliged to conform nor not to conform. Or put more
simply unjust laws are a perversion of law and do not bind mans moral
conscience.

19
Finnis distinguishes here the difference between the focal or core meaning of
the law from the penumbral meaning. The latter relates to difficult cases and
unclear meanings of law. In such cases an argument is needed to
demonstrate that it is appropriate to interpret the rule of law in a particular
fashion. The former relates to laws that are aimed at the realisation of the
common good for a community - if such are unjust they will not be regarded
as laws in the focal sense. It is in the focal sense of the concept of law that
we must identify as it is in this meaning that we find a direct link between the
law and moral order.

Finnis - Distributive Justice

In his book Finnis links practical reasonableness and law when discussing
justice and rights. He states that the whole object of distributive justice is the
common good. With regard to the 'basic goods', Finnis maintains that the
main criteria are "need" followed by "function" and "capacity". Such terms
relate to roles in communal enterprise together with opportunities for
advancement of the individual in society. Finis also makes mention of desert
based principles which relate to claims that people deserve certain economic
benefits in light of their actions - making people responsible for their actions
and creative in their environments.

The different desert-based principles of distribution differ primarily according

to what they identify as the basis for deserving. These principles can be
broadly categorised as follows -

1. Contribution - people should be rewarded for their work activity according

to the value of their contribution to the social product

2. Effort - people should be rewarded according to the effort they expend in

their work activity

3. Compensation - people should be rewarded according to the costs they

incur in their work activity

Finnis further suggests a requirement for private ownership as a requirement

of justice when he mentions 'personal autonomy in the community' bolstering
this by adding that 'rule of human experience indicates that resources are
more productively exploited by private enterprise' but then diluting it by
referring to the fact that common ownership and enterprise would be
beneficial for all.

Finnis - Commutative Justice

20
Commutative justice relates to a fundamental fairness in agreements and
exchanges between social groups. It demands respect for the equal human
dignity of all persons in economic transactions, contracts, or promises e.g.
workers owe their employers diligent work in exchange for their wages while
employers are obligated to treat their employees as persons, paying them fair
wages in exchange for the work done together with establishing conditions
and patterns of work that are fair and equitable.

The central or characteristic act of commutative justice, according to Aquinas,

was X's act of restitution for Y for losses incurred by Y. This is based on the
presupposition that X has already 'wronged' Y. Aquinas' teachings did not
allow for X to do wrong to Y post restitutio so in many cases the primary focus
of Aquinas' discussions on commutative justice is not the duty of recompense
but the primary question of whether X's act is or is not a wronging of Y. The
term commutative justice for Aquinas therefore is a wide one focusing on
rights and wrongs in any interaction between individuals or 'neighbours'.

Finnis contends that Aquinas' classification of the types of justice as opposed

to general justice is fragile. General justice, according to him, is one's
orientation to act for the common good or toward a common rule according to
all relevant laws, either divine or human. Following from this, all laws (that are
adhered to) are made for the common good and everything required for such
good of a particular grouping in society should conform to a rational standard.
Aquinas however, according to Finnis, clarifies that 'acting for the common
good [according to reasonableness]' can sometimes not mean acting
'according to a common rule'.

Finnis further makes reference to occasions where it is difficult to distinguish

between rules that are intended to secure either distributive justice or
commutative justice. He makes reference to the classical period in the law of
torts, from mid 19th century to modern day, where such rules may be
interpreted either way. Where at one stage the issue was 'what standard of
conduct is owed to a person [neighbour]' is increasingly moving toward being
phrased in terms of the apportionment of risk.

Finnis - Human Rights

According to Finnis, human rights must be maintained as a 'fundamental

component of the common good'. Such rights are 'subject to or limited to each
other and by other aspects of the common good' - these 'aspects' can be
linked to issues concerning public morality, public health or public order.
Finnis believes in some absolute human rights i.e. the right not to have a life
taken directly as a means to further end; the right not to be deprived or to be
required to deprive oneself from pro-creative activity. Finnis turns to an
explicit treatment of rights but then observes that his whole book has been
about human rights, which he takes to be synonymous with natural rights -

21
"The modern grammar of rights provides a way of expressing virtually all the
requirements of practical reasonableness," the latter phrase, as discussed
above, being equivalent for Finnis to the tradition of natural law.

Finnis beliefs on human rights enable him to give an alternative expression of

the version of natural law he has developed in conjunction with other modern
day philosophers such as Grisez and Hohfeld. In answer to the philosophical
question as to what it is to have a right Finnis identifies two theories, the
benefit theory and the choice theory. The choice theory arises because it
regards the benefit theory as seeing rights simply as the reflex of rules which
impose duties. H.L.A. Hart taught that possession of a right was to have
control over other people's freedom or, what amounts to the same thing,
control over other people's duties. (duties being limits on freedom, meaning
moral freedom or what a person is morally permitted to do). He emphasised
this criticising a different answer to the question - what does it mean to have a
right? - that having a right consists in being the beneficiary of someone else's
duties. Hart argued that there are some examples where a person is the
beneficiary of a duty but does not have a right. He further came to see that
the choice theory was inadequate, writing that "the core of the notion of rights
is neither individual choice nor individual benefit but basic or fundamental
individual needs". Finnis also sees this as identical with his own notion of
basic aspects of human flourishing.

Rights exist wherever a basic principle or requirement of practical

reasonableness, or a rule derived there from, gives to X, and to each and
every member of a class to which X belongs, the benefit of a positive or
negative requirement or obligation imposed upon Y, or the ability to bring it
about that Y is subject to such a requirement, or the immunity from being
himself subject by Y to any such requirement. In brief, Finnis is able to recast
his whole theory into rights parlance. The benefit theory of rights has been
shown by Hart to be only a special case of the choice theory, so we are
prepared for Finnis' steady correlation of rights and duties. His treatment of
the Universal Declaration of Human Rights of 1948 provides not only a keen
analysis but a general acceptance of it. His attention is drawn to the
specification of what can legitimately limit the exercise of a right. To say that
the exercise of human rights is subject to the common good serves no useful
purpose, "for the maintenance of human rights is a fundamental component of
the common good". Finnis, in essence, extends his contention that natural law
and natural rights can be regarded as two sides of a coin - as duty on one
side and the flipside as a right. The modern use of "right" to mean something
someone has turns out to be simply a restatement of the requirements of
justice from the side of the recipient. According to McInerney, it is not simply
that the old talk can be translated into the new, Finnis shows a preference for
the new and praises it on occasion.

Finnis - A Critique of Practical Reasonableness

22
Practical reasonableness is the key to Finnis's theory of Natural Law. It is the
means through which people grasp what is good and what is to be pursued,
as well as being a good in itself.

As discussed earlier, Finnis recognises basic forms of good, and asserts that
this is an exhaustive list, suggesting that everyone who is practically
reasonable will agree with it but if true must not practical reasonableness be
an objective concept. Otherwise, people could discover completely different
forms of good using their own subjective practical reasonableness. Finnis,
however, does not agree and in his book expresses an aspect of practical
reasonableness as the requirement that one should not do what one judges
or thinks or feels all-in-all should not be done.

This, he feels, expresses that practical reasonableness is not simply a

mechanism for producing correct judgments, but an aspect of personal full-
being, to be respected (like all the other aspects) in every act as well as over-
all - whatever the consequences

How so is it possible to have a self-evident, indemonstrable good of practical

reasonableness, through which all other forms of good are recognised, if it is
acceptable to follow a mistaken conscience, whatever the consequences?
Hitler, for example, may have genuinely felt he was doing a great service to
the common good by ridding society of the curse of the Jews; and under
Finnis's theory, he cannot be criticised for this, because he was following his
conscience, and because all of the requirements are of equal value. Ironically
the prosecution of these war crimes were a principal factor that led to the
Natural Law revival in which Finnis took part.

Finnis regards practical reasonableness as an end in itself. He considers just

that about all of the basic goods (of which practical reasonableness is just
one) as being an end pre-eminently endish

Reference is made however of a "double duty" whereby such reasonableness

is a means of pursuing the ends of the other basic goods. So reasonableness
is both a basic aspect of human well being and concerns one's participation in
all other aspects of human well being. Can such a "double-duty" be
performed? Is it actually a good, an end in itself or is it merely a method of
attaining the other goods? Unlike knowledge for example, practical
reasonableness cannot be pursued just for its own sake. Such a pursuit is
necessarily contingent upon another end. When participating in it, the ultimate
goal is not the attainment of practical reasonableness, but the participation in
and realisation of another goal.

Finnis would appear to place a higher value on the good of practical

reasonableness than on the rest of the basic goods - contrary to his belief that

23
 they are all equal. If it is accepted that it is both a means and an end - that it
does in fact do "double-duty" where none of the other basic goods do - this
would lend credence to the suggestion that it sits atop a hierarchy á la Finnis.
He suggests as much by stating that despite being free to choose which good
we choose to pursue and which to ignore, we have no good reason to leave
practical reasonableness out of our plan to live well. This would further
introduce an Orwellian concept that the basic goods are all equal but some
are more equal than others. If such a hierarchy exists should the basic good
of 'life' not outrank all others - without which one could not partake in the rest
of the basic goods. This, the author contends, unlike much of Finnis'
assertions, actually is self-evident. Next in line should then be practical
reasonableness for reasons set out above followed by knowledge which
bridges a gap between self-interest and a concern for the common good.
Religion and all curiosity relating to cosmic order could come next although it
could be linked to knowledge or a sub-category of it. Play is linked to
sociability and friendship with aesthetic friendship linked to it as a sub-
category. Finnis rates this as least important as it would appear to have the
least interaction with the rest.

Finnis' natural law theory asserts that the values of his self-evident basic
goods are the impossible to measure. Fundamental problems are created
when morality is divorced from values. Finnis, as discussed above, requires a
life plan based on these goods placed in a hierarchical format but does not
outline how one should go about this. This places the morally right candidate
in a unsure position as he may try to do what Finnis suggests but may never
be able to achieve the required result as Finnis expects.

Conclusion

Essentially Finnis lays claim that the law is a social institution whose purpose
is to regulate the affairs of people and so contribute to the creation of a
community in which all people can live harmoniously while realising the fruits
of the basic value system he proposes. In effect the law is a moral project
where one must take the position of the person who examines the law with
this person in mind. This is the practical reasonable person who grasps the
basic values together with the law's purpose in helping others realise them.
Whether or not a persons description of law is correct or not will depend
significantly upon whether one's moral views are correct as it is these that will
inform the way in which one conceives the project of law.

Read more: http://www.ukessays.com/essays/philosophy/finnis-attempt-to-

construct-theory-of-natural-law-philosophy-essay.php#ixzz3lYRWA0iu

Modern natural law theory II: Fuller

24
Lon Fuller

Fuller denies the separation of law and morality. He believes that whatever
virtues inherent in or follow from clear, consistent, prospective, and open
practices can be found not only in law but in all other social practices with those
features, including custom and positive morality.

His other criticism is that if law is a matter of fact then we are without an
explanation of the duty to obey. If an amoral law is made, there is still an
obligation to obey.

Fuller’s Principles of Legality

http://www.westga.edu/~rlane/law/lecture14_nlt2.html

Fuller’s Internal Morality of Law -

http://faculty.ycp.edu/~dweiss/phl347_philosophy_of_law/Fuller%20and%2
0the%20internal%20morality%20of%20law.pdf

Consider a situation in which James Smith was sentenced in 2004 for armed
robbery. It is now 2006 and legislators are concerned with increases in the
number of armed robberies, especially those carried out by individuals who have
previously served time for armed robbery. So the legislature decides to increase
the sentences for armed robbery and to apply these increases retroactively.
James Smith, who was originally sentenced to 15 years, will now be forced to
serve 25 years. Is this illegitimate because unjust? Wherein lies the injustice?
How would a traditional natural law theorist approach this issue?

Fuller’s response: Norms of justice (moral norms) are built into our legal
procedures. There are procedural principles, but (according to Fuller) they are
not merely procedural—they do have a moral aspect. Fuller argues that there is
not a sharp conceptual separation between law and morality. In doing so, he
articulated a form of NLT that is very different from traditional versions of that
theory.

Like traditional NLTs, Fuller proposes that a so-called law must pass a moral test
if it is to be a law in the fullest sense (a genuine law). But Fuller’s test is
functional. A rule or set of rules that doesn’t perform this function does not count
as law (just as an object that looks like an ax but completely fails to perform the
function of an ax really isn’t an ax at all).

The function that a set of rules must play is revealed in Fuller’s definition of law:

25
law (defined by Fuller): a particular way of achieving social order by
guiding human behavior according to rules.
He attempts to identify what he calls the internal morality of a system of legal
rules. This morality is constituted by universal procedural norms.
These are eight “principles of legality” – the degree to which a system meets
these requirements is the degree to which it counts as a system of law. He
describes these principles at pp.65-66 of your textbook. They are summarized in
the following list:
1. laws should be general;
2. they should be promulgated, that citizens might know the standards to which
they are being held;
3. retroactive rule-making and application should be minimized;
4. laws should be understandable;
5. they should not be contradictory;
6. laws should not require conduct beyond the abilities of those affected;
7. they should remain relatively constant through time; and
8. there should be a congruence between the laws as announced and their
actual administration.

Objection: it is possible for a regime to meet all eight of Fuller’s legal

requirements, yet still be wicked, e.g. by meticulously following a system of laws
the contents of which are wicked.

Response: This misses Fuller’s point. He does not claim that any system that
includes these procedures is thereby perfectly moral. Rather, his view is that the
procedures embodied in a legal system are morally important and determine
whether a set of rules really count as a legal system.

The continuing debate over the connection between law and morality

Required reading page 92- 96, 213, 225 of Jurisprudence by L.B. CURZON
Barrister

Reflect and review.

Summary of worksheet: Natural law (Aristotle, Aquinas and Finnis):

26
Natural law theory

Natural law theory as a jurisprudential theory of law seeks to answer two

fundamental questions:
• What is the nature of law; and
• What is the basis for its legitimacy i.e. what is the basis of people’s
obligation to obey the law?

All natural law theorists believe in the existence of natural or divine law and all
versions of natural law theory center around the idea that there are objective
moral principles that can be discovered by reason from an analysis of the nature
of the universe. These principles are today referred to as principles of political
morality because they address the governance of society whether society is
ordered and governed in a good or bad way. They include such principles as
those that determine right and wrong which are common to all peoples.

Natural law theory’s central plane is that there is an inextricable and intimate
connection between law and morals: law is justified because it has morals.
Natural law theorists argue that it is impossible for law to justify itself and as such
law must necessarily get its legitimacy from something outside itself. This
something is morals. Since morals are inherently just the theory seems to be
saying that no rule can be law unless it is just.

Aquinas
Aquinas’ theory emerges from the classical era. The building block of his theory
is that law is binding by nature. The very word ‘law’ is derived from the Latin verb
that means ‘to bind’. He argues that law is necessarily binding and it is binding
because of its justness – its connection to moral principles. It is these principles,
the principles of political, moral philosophy that are the precepts of natural law.
These precepts are the creation of a divine entity. As such it is only through an
application of reason and with the help of divine interpretation that man can learn
them.

In his natural law theory, therefore, Aquinas speaks of laws as a force binding on
man. It binds him to certain courses of action. It is in virtue of society’s laws that
man is led to perform certain actions and restrained from the performance of
certain others.

Aquinas argues that human actions are deliberative. They are directed by
reason. It is through reason that humans consciously determine the end to which
they wish to go and how to get there. Reason is therefore the rule and measure
of man’s actions. Since law is a human creation, the formation of law must be a
distinct human action, albeit one very few are in a position to perform. Hence, law
must also be directed by reason to its appropriate end. He continues that law
must necessarily be directed by reason to a good, just and right end because it is
impossible for reason to justify any other end, for example an evil one. [Note that

27
reason here entails the idea of justification and is not just limited to
rationalization.]

That is to say that the appropriate end to which reason will inevitably direct law is
to the well being of the entire society. Thus law must direct reason to a moral end
because that is the essence of political morality. It is of little significance whether
one person or many make the law; what is important is that whoever makes the
law is directed by reason.

It is not sufficient or acceptable for laws to be made for the benefit of a fraction of
society only. Such laws would be evil for the rest of society and could not
therefore be justified. They must have been directed by some corruption of
reason rather than reason itself. Any society in which the laws are not for the
good of society would be operating on the basis of ‘evil in the guise of law’, not
on the basis of law. In other words, the rules of that society would be operating
under the name of law but would not in fact be law since they are unjust and
justice is the ultimate principle of law and moral philosophy. Such societies have
existed in recent history: Cambodia, Nazi Germany, and Apartheid South Africa.
Even some communist countries come close to this.

Aquinas argues that law cannot just derive its legitimacy from the obedience of
its subjects because people will even obey the laws of an evil regime if it is within
their best interest to do so or if it is backed by sufficiently painful sanctions.
Acquinas therefore spoke of the existence of some transcendental force from
which we derive our moral principles and from which law derives its legitimacy.
Note that for Aquinas, both elements of law were important: its substance and its
form. The essential questions were how the law was formed, by whom and
whether the law was just and therefore good.

Finnis
John Finnis offers a more contemporary version of the natural law theory. Finnis
agrees with Aquinas that there are objective moral principles and he accepts that
law is directed by reason to an end that is right and good. Where Finnis departs
from Aquinas is in holding that such moral principles do not come from nature.
Finnis asserted that these principles of morality were actually self-evident
principles of practical reasonableness. It is these principles of practical
reasonableness by which every society should be ruled. Reason then plays a
vital role in constituting he laws of a society. It is this substitution of terms that is
the essential difference between Finnis’ theory of natural law and that of Aquinas.

According to Finnis, it can be seen in the positing of law that these principles of
practical reasonableness play a central and constitutive role in the ordering of
modern society. Finnis purports that it is a requirement of practical
reasonableness that man organizes his society in such a way as to ensure
protection of his moral rights. He defines these moral rights as the sense of
entitlement man feels to those forms of human good that are indispensable to his

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life and well being. These include life, play, knowledge, freedom, food and
religion.

The method man employs to protect these rights is to record them in the
constitution – the supreme law of his state – thus making them enforceable
constitutional rights. [Note that these rights were not created by political
institutions; rather political institutions were ordered to secure them.] Finnis
accepts that just as these right s should be protected and enforced so too there
should be institutional restrained placed upon to prevent them being abused. (For
example, a person may abuse his right to freedom of speech by slandering
another.)

Finnis points out that law can be made in two ways: legislatively (by the
representatives of the people) or constitutively (by the people themselves).
Regardless of the way in which the laws are made they will be made to secure
the welfare of the society. That is to say the law will necessarily be made to
secure those forms of human good that are of intrinsic importance to people and
to which they lay a moral claim or right.

Finnis’ theory is thus helpful in explaining the inclusion of moral rights in the
constitution of states and also the inclusion of provisions to protect them from
violation by individuals and by agents of the law and the state. Finnis extends his
theory to justify the incorporation of the separation of powers doctrine in these
constitutions. He argues that the enforcement of constitutional rights necessitates
the independence of at least one organ of government – the judiciary. West
Indian constitutions, each of which incorporates a well-entrenched bill of rights
and embodies the separation of powers doctrine, are therefore endorsed by
Finnis’ theory of natural law.

Finnis reasons that since there are agents and institutions of the state with the
potential to violate a person’s fundamental rights, the courts must necessarily be
independent and empowered with the authority to reprimand and punish such
agents and institutions. This is the only way the court will be able to fulfill its
function of protecting the people and safeguarding their rights. Hence the
regimes of law, for example tort and criminal law, in which the courts exercise
their jurisdiction, are geared towards the protection of certain human rights.
Finnis has been criticized on the grounds of having removed the foundation of
natural law theory – the existence of a divine being from whom man derives
these natural principles – without providing an alternative.

General criticisms

Critics have disputed the very foundation of natural law – that we learn moral
truths from nature or some divine being. Margaret McDonald, for example,
argues that nature hold no such moral truths and the divine being that Acquinas
spoke of does not exist.

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Natural law theory has also been criticized for addressing particular rules of law.
Some jurists argue that for a theory of law to adequately answer the essential
questions of jurisprudence about the nature and legitimacy of law, it must utilize
broad analytical concepts which examine the law as a whole and not just
particular areas or rules of the law. They claim that natural law fails to do this,
presenting itself instead as another system of law or at least a theory about a
system of law.

Natural law theory as foundation of the fundamental rights provisions of modern

democratic constitutions such as those of the West Indies

Aquinas defined law as an ordinance of reason for the common good

promulgated by whoever has the care of the society. It is immaterial whether the
care of society rests in the hands of one, for example, a sovereign (as in the
United Kingdom) or in the hands of several, for example, a Parliament (as in
most Caribbean states).

The modern constitutional democracy is the closest thing to the ideal society
described by Aquinas in his version of the natural law theory.

References

TO REVIEW: http://www.philosophy.hku.hk/courses/law/lectures.htm

TO REVIEW:
http://www.stpeterslist.com/12257/the-6-step-guide-to-aquinas-natural-law-in-a-
modern-world/

TO REVIEW:
http://www.thomasinternational.org/projects/step/essays/george_000.htm

Aquinas, T. (1991). Summa theologiae: A concise translation (T. McDermott,

Trans.). Allen, TX: Christian Classics.

Aristotle. (1991). On rhetoric (G. A. Kennedy, Trans.) Oxford, UK: Oxford

University Press.

Cicero. (1928). The republic (De republica). (C. W. Keyes, Trans. and Ed.).
London: Loeb Classical Library.

Istoriia politicheskikh uchenii, 2nd ed. Moscow, 1960. Pages 213–15,

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236–49, 269–327.

Maslow, A. H. (1943). A theory of human motivation. Psychological Review, 50,

370‑396.

Morris, C. (Ed.). (1959). Great legal philosophers: Selected readings in

jurisprudence. Philadelphia, PA: University of Pennsylvania Press.

Rice, C. (1993). 50 questions on the natural law: What it is and why we need it.
San Francisco, CA: Ignatius Press.

Robin v. Hardaway, 2 Va. (2 Jefferson) 109, 114 (1772).

Sophocles. (1973). Antigone (R. E. Braun, Trans.). Oxford, UK: Oxford

University Press.

http://www.ukessays.com/essays/philosophy/finnis-attempt-to-construct-theory-
of-natural-law-philosophy-essay.php#ixzz3lYWxAGEs

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