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The Concept of Natural Law 1 - Jurisprudence
The Concept of Natural Law 1 - Jurisprudence
LAW
Introduction
Essential Discussion Surrounding Natural Law Theories
The Growth of the Concept of Natural Law
Theories of Ancient Greeks and Romans
Theories of Grotius, St Augustin and St Thomas Aquinas
Comparison Between the Theories of St Thomas
Aquinas and Islamic Theories
Conclusion
THE CONCEPT OF NATURAL
LAW
Introduction:
• Natural law is a law which is founded on nature. In other words,
natural law is that law which is in accordance with nature. To
some, it is body of jurisprudential doctrine based on the
acceptance of absolute value judgments said to be in accordance
with ‘nature’ and ‘reason’ reflecting the essence of the ‘Universe’,
and possessing an immutable and eternally valid character.
• See Morrison’s description of natural law which seems to capture
the general essence of natural law: “The central point of natural
law is that of an essential moral requirements in the concept of
law and legality. It is not merely that good law is moral, but
morality is conceptually part of law”. This description is a loose
one but it gives us the connection between law and morality.
THE CONCEPT OF NATURAL
LAW
Introduction: (Continuation)
• Cicero in his work ‘De Re Publica’ viewed natural law as:
“True law is right reason in agreement with nature; it is of
universal application, unchanging and everlasting...It is a sin
to try to alter this law, nor it is allowable to attempt to repeal
any part of it, and it is impossible to abolish it entirely...
[God] is the author of this law, its promulgator, and its
enforcing judge”.
• From the above statement echoed by Cicero, one may
conclude that natural law stresses on: universality &
immutability; its standing as ‘higher law’, and its
discoverability by reason (it is in this sense ‘natural’).
THE CONCEPT OF NATURAL
LAW
Introduction: (Continuation)
• It must be pointed out that irrespective of what is said about natural
law, the most difficult thing or part of this discussion is on the issue or
question of nature itself. What is nature? Does it mean physical nature
or biological nature or human nature or psycho-physical nature?
Thinkers throughout the ages have interpreted nature in various ways
and reached different conclusions.
• Still on the issue of nature above, J.S. Mill gives his views on ‘nature’.
He says that ‘nature’ is given two meanings by several thinkers. First,
that what exists is nature i.e. all that man observes in this universe can
be called as nature. The other meaning of nature is in the sense of how
man ought to behave. Thus, man tries to conform behaviour as to what
he ought to do with what he observes in nature. This line of reasoning
is what has led to the ‘is’ & ‘ought’ propositions while faced with the
question of what is law, content of law and many more.
THE CONCEPT OF NATURAL
LAW
Conclusion:
• The discussion on natural law remains a heated debate even in the 21 st
century. For example, what is ‘natural’ about natural law can be
construed from different contexts or perspectives for instance the
classical natural lawyers advocate for the substance of the law must be
moral. On the other hand, the modern natural lawyers like Lon Fuller
advocates for ‘procedural morality’ in the law making process i.e.
Procedural justice.
• Looking at the discussion from the Shariah perspective, it would suffice
to note that ‘law’ and ‘morality’ are fused together and the two are
inseparable. Islam is not only a religion, but a complete way of life
encompassing all aspects of life i.e. Law, family, religion, etc.