Natural Law

NATURAL LAW

“From a purely factual standpoint the history of the natural law idea teaches one thing with the utmost clearness: the natural law is an imperishable possession of the human mind. In no period has it wholly died out”[1] – Heinrich A Rommen (1955, 215)

The concept ‘what is natural law’ has been revealing around for centuries provoking so many different answers. It has had very different meanings and has sometimes treated entirely different purposes. D’ Entreves states, “many of the ambiguities of the concept of natural law must be ascribed to the ambiguities of the concept of nature that underlies it”.[2] Evolution and development of natural law theory may be studied under four categories. They are, the ancient period, medieval period, period of Renaissance and the Modern period. This article will focus on how the “natural law has been the chief albeit not the only way to formulate ideals and aspirations of various peoples and generations with reference to the principal moving forces of the time”[3] by referring to the influence of natural law in its historical and contemporary context.
Ancient period, the idea of natural law was developed by Greek philosophers around 4^th century B.C. The first Greek philosopher who pointed out that destiny, order and reason were the three features of law of nature were stated by Heraclitus.[4] His idea was that there is a necessary indeed between things and a definite order and rhythm of events. The next who is identical is Socrates[5] who gained an important place among stoic philosophers. As his observation, just like natural physical law, there is natural moral law. “It is because of the ‘human insight’ that a man has the capacity to distinguish between good and bad and he is able to appreciate the moral values”.[6] Next important person in the line of natural law development is Aristotle[7], because he was able to interpret in more logical way the concept of natural law. He gave his interpretation to natural law as “reason unaffected by desires”.[8] He suggested that ideals of natural law has derived from the human conscience and not from human mind, he stated because of that natural law is more important than the positive law which is an outcome of the human kind. “Aristotelian teleology teaches that all things have a potential for development specific to their nature, the achievement of which is its particular ‘good’”.[9] The important factor is that Aristotle who was the pupil of Plato[10] in contrast of him, “taught that human beings have an inherent potential for good, the achievement of which it is the proper function of the state to facilitate”.[11]  It will also give an important idea about the Greek natural law philosophy by referring to the observations that Roscoe Pound has made.[12] The interpretation or the theory given by Stoic had a great impact on the contemporary Roman Legal System.[13] Romans did not narrow their observation on natural law theory only to a theoretical discussion but “they used it in transforming their narrow and rigid system into a cosmopolitan one”.[14] There were some jurists who believed in that Natural Law is superior and higher than positive law and suggested that if there is a conflict of both the positive law may be disregarded. But in general Roman lawyers did not bother with the conflict of ‘natural law’ and ‘positive law’.[15]
The next period from 12^th century to mid 14^th century is known as ‘Medieval age’ in the European history.[16] In this period people believed that law is the greatest binding force both for those who govern and governed, the thought that institutions of slavery present the evil desires because they are not the creation of law, they believed in two facets.[17] The important personality in this period is Thomas Aquinas[18] who had similar views about society as Aristotle. He defined law as “an ordinance of reason for the common good made by him who has the care of the community and promulgated”.[19] His idea was that positive law is valid only up to the limit where it is compatible with natural law, thus conforming to eternal law.[20] The development in this period has impact in the contemporary world, with the Homosexuality debate. “The centrality of Aquinas natural law theory of morality is that each kind of thing or species has its own characteristic way of life and way of behaving that is part of its inherent nature”.[21] Therefore it shows the connection of natural law together with morality even in the modern days how it exists and how the evolution of natural law has helped to think on those matters in deep and not by surface. Another important debate which derived to discuss in the modern world is right to life argument together with abortion. The idea of natural law has been the base level for those discussions, because according to St. Thomas Aquinas in the Summa (Q. 94, 1a2ae), is the first specific precept of natural law is that “the natural law related to the life principle and relates to the tendency of all beings to remain in existence”.[22]
The period of Renaissance is the time period where the natural law started to develop and therefore which is also named as the modern classical era. Natural law theories which were spelled out by Grotius, Locke and Rousseau revolutionized the already existing concept and held that ‘social contract’ was the basis of society. Hugo Grotius[23] built his legal concept on ‘social contract’[24]. In his view it is the “duty of sovereign to safeguard the citizens because it was given power only for that purpose”.[25] Grotius who mainly concentrated on the political orders stability laid the foundations of international law too. There are many incidents that have derived from international law concepts which have highlighted the importance of torture[26], fundamental rights of citizens[27] and even applicability of international law when the domestic law is silent[28]. All those exists today in the modern world is due to the development of international law which arisen from Natural Law is significant and valuable at the same time. The impact to the modern world developments which derived from the concept ‘social contract’ has been immense, because concepts such as separation of power, parliament sovereignty, limited powers and democracy concept’s basis was this social contract theory. Grotius also mentioned few principles which he took away from the ‘social contract’ theory.[29] Hobbes[30] too continues from social contract theory. He laid his theory on natural right of self-preservation of person and property.[31] He is a jurist who supported the absolute authority of the sovereign. It is identical in his opinion which he has stated that “Governments without sword are but words, and of no strength to secure a man at all”.[32] Later as time moved on it made individuals to demand more freedom where new theory of natural law was needed and John Locke[33] gave an interpretation. According to him the use of Government and law is to uphold and protect the natural rights. So far the article has discussed on it is evident of the development of natural law and how jurists have intended to give interpretation to this concept in different ways. Rousseau [34] stated that ‘social contract’ is not a historical as stated by Hobbes and Locke but it is a hypothetical incident.[35] The development of this social contract theory could be related to the contemporary world as below. The basic level of social contract theory is exercised is through elections of some people to for the government.[36] Most of the countries a constitution exists and it is to reflect the will of the citizens and then to abide the provisions of that so citizens will live accordingly respecting the procedure and the community. Therefore “The jurisprudence behind social contract theory is to promote peace and harmony and as that it is the bed rock of democratic societies”. Rousseau[37] was towards people’s sovereignty where as Locke was stressing on the individual.[38] In the 18^th century the natural law and concept of ‘social contract’ was supported by Kant and Fichte. Immanuel Kant[39] recognized natural rights because it was necessary for the freedom of individual than acquired rights.[40] His view was that “an action is right only if it co-exists with each and every man’s free will according to the universal law”.[41] Along with these in the modern world the argument that capital punishment[42] is deterrence to crime is still need to be proven satisfactorily and also in any case the use of human beings as means of social end is a question still need to discuss along with ethics. Especially when some of those executed are innocent people. This debate too has been arguable together with the Natural Law concepts.
In the 19^th century it was a period where natural law had to suffer. Because jurists such as David Hume rejected the concept of natural law stating that it was “vague, obscure and contrary to empirical approach to law”.[43] Auguste Comte stated that natural law is “false, non scientific and based on super natural beliefs”.[44] Apart from these attacks historical researchers started to state that ‘social contract’ was myth. In this stage it became very hard for the natural law theories to survive. But towards the end of the 19^th century due to some reasons[45] revival of Natural Law theories took place. Dr. Allen has stated that this new natural law theory is “the new natural law is value loaded, value oriented and value conscious and its relativistic and not absolute, changing and varying and not permanent and everlasting character”.[46] Rudolf Stammler[47] in his opinion law of nature means ‘just law’ which harmonizes the purposes in the society.[48] Another professor who has made an immense contribution towards natural law theory is Professor Rawls who talks about two basic principles[49] which emphasis to ensure maximum benefit to the community as a whole. Fuller[50] is one of the leading supporters of the modern natural law. In his opinion the concepts such as law and morality are co-related. He denied the separation between “is” and “ought” and said that good order is law which corresponds to justice or morality”.[51] According to Fuller, “law is a purposive system, the purpose being ‘to subject human conduct to the control and guidance of legal rules”.[52] He has also stated 8 requirements[53] which he thinks which in indeed to make the law really effective in every legal system. Unlike Fuller’s theory which states about procedural natural law, John Finnis advanced the theory[54] of ‘natural rights’ which unequivocally falls into the category of ‘naturalist’. It relates very closely to the analysis of St Thomas Aquinas but on other hand refers to an approach which clearly talks about to the modern period. “This is a highly significant contribution to the modern naturalist revival, not as an abolition or denial of other schools of jurisprudence but rather as a redress of an imbalance which existed in conventional jurisprudence from the middle of the 19^th century to the later part of the 201th century”.[55] Finnis sets out to describe Natural Law and Natural Rights what he considers to be the basic: values of human existence and principles of all practical reasoning too.[56] Finnis has also referred in his text to certain “exceptionalness or an absolute human claim rights”[57] which includes many in detail.
With the explanations of Natural Law jurists, it is important to see the idea that positivists had behind Natural Law concepts too. Significantly, regarding H.L.A. Hart and the ‘minimum content theory of natural law’. Hart as a legal positivist “accepts that there is a ‘core of good sense’ within natural law doctrines”.[58] Many people believe that difference of him is that he interprets it in a different way; also some believe such as prohibition of murder etc. were commonalties which existed too.[59]
Few incidents where we see the Natural Law application in the modern world are; firstly that whether it is ethical to authorize a retaliatory strike and as an example whether U.SA. can destroy Iraq.  Natural Law analysis has discussed about the inviolable right of individual. But in a conflict situation, natural law makes a distinction between life of an unjust aggressor and an innocent human being.[60] All considerations of modern warfare are understandably quite complex. In this case, the natural law tradition could offer considerations from the just-war theory which include when war is justified and what acts are moral in a just-war situation.[61] Secondly, the debate on human rights which often arise in modern days is whether to look how far we can go in depth in human rights. “The right place for human rights is that they must be subordinated to Natural Law. They must be founded not on cheap populism, but on a sound anthropology, in which man is seen as capable of making reasonable and moral decisions, and which therefore holds him responsible for his actions. They must be based on reality rather than on imagination”.[62] Thirdly, the impeachment saga that has taken place in Sri Lanka is also identical. It is shown with this debate on the impeachment to the chief justice, identifying the wide development of Natural Law by, “this notion of natural justice is derived from the Natural Law, meaning that justice is fused with morality and responsibility”.[63] Reflecting the constitution from the perspective of natural justice, “the courts appear to be far better suited to interpret the Constitution than elected representatives because they are organized as the most appropriate institutions to achieve equality, generality, and morality”.[64]
After the changes of the development of natural law, at the same time it is important to see the criticism of Natural Law theory too. In my opinion the main critic against the natural law theory is that it complicates the nature of law and morality with science, secondly as an example ‘ought to be’ may not be used to be away to conform needs of the society, thirdly even though legal disputes could be settled by courts – disputes relating to morality and law of nature won’t be able to subject to judicial eye, fourthly rules of morality absorbed in natural law are not amendable but the legal rules need to change with the modern needs of the changing worlds and finally though law and morality seems to conflict with each other to decide if any law is just or unjust it will need to be subject to the principles of morality too. Therefore I have explained in this report the main four periods that Natural Law has been developed, analyzing the importance of it. Next the report has concentrated to show how these changes have helped to develop the contemporary world incidents together with Natural Law concepts. There by the conclusion that comes to at the end of the analysis is that Natural Law is immensely significant that it has been developing throughout many eras.