How do you understand the concept of natural law

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1. Why should every community have a certain set of rules of behaviour, in other words laws?
I think that every community should have a certain set of rules of behaviour, because a state cannot survive without any kind of law (from traditions, primitive rules to modern sophisticated law codes). There are always people, who have different interests, which are usually colliding, and the function of law is to regulate this situation. (Максим Шуваев, Пермский Государственный Университет)

2. Why is it impossible to produce laws which would be entirely satisfactory?
Each society consists of many social groups and each of them has its own political, economical and other interests which can be different and even contradictory. These circumstances make the adoption of laws which would be entirely satisfactory impossible. (Сергей Бурлаков, Ивановский Государственный Университет)

3. What areas of human life did the earliest laws deal with?
Laws are supposed to regulate the relations and protect the values which are considered by the society and the state as the most important at a particular time. The earliest laws dealt with compensation for body injuries, slavery, etc. (Сергей Бурлаков, Ивановский Государственный Университет)

4. What is the origin and the meaning of the word «draconian»?
The word «draconian» means very severe, extremely harsh measures. This term arises from the code of laws of Draco, where death penalty was the main punishment for almost all criminal offenses. (Дарья Кривошея, Белгородский Государственный Университет)

5. In your opinion, why did Hammurabi decide to have his laws carved into a stone pillar set up in a temple?
To my mind, Hammurabi decided to have his laws carved into a stone pillar set up in a temple, because the stone allowed his laws to live forever. The stone also symbolized that Hummurabi’s laws were as durable as stone, and setting up of the pillar in a temple asserted that his laws were divine and represented the will of God. (Марина Агальцова, Южно-Уральский Государственный Университет)

6. How do you understand the principle «an eye for an eye and a tooth for a tooth»?
This is the principle of revenge, according to which the punishment should fit the crime. That’s why those who steal, should be deprived of their property those who kill should be killed. (Марина Агальцова, Южно-Уральский Государственный Университет)

7. What is the Latin name for the «Act for the better securing the liberty of the subject, and for prevention of imprisonments beyond the seas»?
The Latin name for the «Act for the better securing the liberty of the subject, and for prevention of imprisonments beyond the seas» is the «Habeas Corpus Act».

8. How do you understand the principle of limited government?
The principle of «limited government» was introduced by the Magna Carta and meant the restriction of absolute monarchic power in the economic sphere, in the sphere of human rights and legal proceedings. According to this document certain taxes could not be collected without popular consent, the unlawful loss of life, liberty and property was forbidden. (Антон Рапенок, Пермский Государственный Университет)

9. In your opinion, were the punishments of the ancient world harsher than those of our time? Justify your view.
I consider, that punishments of our time are not so harsh, as they were in ancient times, because we are trying to make them more humane, respecting intrinsic individual rights. Moreover, nowadays many states have abolished death penalty and use imprisonment as the most common punishment, unlike ancient times, where the Talion principle was observed. (Марина Агальцова, Южно-Уральский Государственный Университет)

10. What is the essential difference between the codes of Solon and Draco?
The most essential difference between the codes of Solon and Draco is that in comparison with the code of Draco the code of Solon was more humane. (Максим Шуваев, Пермский Государственный Университет)

11. What facts support the statement that Solon was a more popular ruler than Draco?
Solon was one of the Seven Wise Men of Greece, a noted poet and the Athenian people of all classes turned to Solon hoping to solve their problems in a satisfactory way. (Екатерина Кривошапова, Белгородский Государственный Университет)
The main indication of a statesman’s popularity is that people trust him and support his activities. Athenians believed in Solon and relied on him in times of political crisis and possible revolution because they supposed that he would be able to find a wise solution to the problems. (Сергей Бурлаков, Ивановский Государственный Университет)

12. What political situation necessitated the granting of the Magna Carta?
The struggle for power between the English King and the nobility and the threat of civil war necessitated the adoption of the Magna Carta, one of the oldest written constitutional papers. (Юрий Анцыферов, Ивановский Государственный Университет)

13. What was so remarkable about Napoleon’s law code? Napoleon’s code is the excellent model of civil law codification which is characterized by a very high level of judicial technique that makes it understandable for ordinary people. Having abolished previous privileges of different social groups and having given people equal rights, Napoleon created an immortal code of laws. (Сергей Бурлаков, Ивановский Государственный Университет)

14. In which national emergencies can the Habeas Corpus Act be suspended?
The Habeas Corpus Act can be suspended only in extraordinary situations such as rebellion or invasion, which is declared in Article 1 of the American Constitution. In England and Scotland such a measure has not been applied since 1818. (Антон Рапенок, Пермский Государственный Университет)

15. How do you understand the concept of «natural law»?
The concept of «natural law» means that some rights of persons are given to them not by their states, but by nature. So the state and its bodies can’t confine the people or deprive them of these rights. (Алла Ксенюк, Белгородский Государственный Университет)

16. How were the rights of the monarch limited by the Bill of Rights?
The monarch couldn’t dispense with the law in certain cases, completely suspend laws without the consent of Parliament, levy taxes and maintain army in peacetime without specific parliamentary authorization. (Дарья Кривошея, Белгородский Государственный Университет)

17. Which prominent leader remarked: «The heart of a statesman must be in his head». What did he mean by this?
The phrase «The heart of a statesman must be in his head» was said by Napoleon Bonaparte. I suppose Napoleon wanted to express the idea, that taking public decisions a statesman must follow the common sense, think logically in the interests of his state, not taking into account his own feelings and attitudes. (Антон Рапенок, Пермский Государственный Университет)
. To my mind, Napoleon wanted to emphasize that each statesman should remain cold-minded under most strenuous circumstances and subordinate all his feelings to his duty of a statesman. (Юрий Анцыферов, Ивановский Государственный Университет)

18. What is the influence of the Bill of Rights on political thinking in America?
The Bill of Rights (1689) proved that the state system of each country should be based on the recognition of law as the main means of protection of human life, on the recognition of the main rights and freedoms of people. It was one of the reasons which caused the adoption of American Constitution (1787) and the ten amendments to it which soon received the same name as the constitutional document in England because it largely referred to the same matters. (Юрий Анцыферов, Ивановский Государственный Университет)

19. Why is it difficult to know the nature of laws that were in effect before the 3rd century BC?
The difficulty of examining the laws that were in effect before the 3rd century BC is explained by the fact that writing originated in about 3500 BC. That is why there are no written sources to be analyzed. (Сергей Бурлаков, Ивановский Государственный Университет)
. a lot of legal documents of that period have been lost or destroyed. We can make our suppositions only according to some legal memorials, which are undoubtedly insufficient for the reconstruction of the comprehensive system of ancient law. (Антон Рапенок, Пермский Государственный Университет)

21. Why do contemporary law students give historical legal documents such careful consideration?
In my opinion, we should know the origins and development of law in order to be successful and professional lawyers. Moreover, many legal ideas and principles of the past times are in effect nowadays. (Людмила Клюева, Саратов)
. ancient law is the basis of modern legal system of all countries, the legal system of every state has a special connection with ancient law. And, of course, through the history of legal documents we can see the history, the state system and the way of living of our ancestors. (Максим Шуваев, Пермский Государственный Университет)
. Of course, we need to know the history of the law, as History is the great teacher that can prevent us from making the mistakes of our predecessors. The development of world legal system helps us to reconstruct the whole picture of world law. (Марина Агальцова, Южно-Уральский Государственный Университет)

Natural Law: Definition and Application

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Natural law is a theory that says all humans inherit—perhaps through a divine presence—a universal set of moral rules that govern human conduct.

Key Takeaways: Natural Law

Natural law exists independently of regular or “positive” laws—laws enacted by courts or governments. Historically, the philosophy of natural law has dealt with the timeless question of “right vs. wrong” in determining the proper human behavior. First referred to in the Bible, the concept of natural law was later addressed by the ancient Greek philosopher Aristotle and Roman philosopher Cicero.

What Is Natural Law?

Natural law is a philosophy based on the idea that everyone in a given society shares the same idea of what constitutes “right” and “wrong.” Further, natural law assumes that all people want to live “good and innocent” lives. Thus, natural law can also be thought of as the basis of “morality.”

Natural law is the opposite of “man-made” or “positive” law. While positive law may be inspired by natural law, natural law may not be inspired by positive law. For example, laws against impaired driving are positive laws inspired by natural laws.

Unlike laws enacted by governments to address specific needs or behaviors, natural law is universal, applying to everyone, everywhere, in the same way. For example, natural law assumes that everyone believes killing another person is wrong and that punishment for killing another person is right.

Natural Law and Self Defense

In regular law, the concept of self-defense is often used as justification for killing an aggressor. Under natural law, however, self-defense has no place. Taking another life is forbidden under natural law, no matter the circumstances involved. Even in the case of an armed person breaking into another person’s home, natural law still forbids the homeowner from killing that person in self-defense. In this way, natural law differs from government-enacted self-defense laws like so-called “Castle Doctrine” laws.

Natural Rights vs. Human Rights

Integral to the theory of natural law, natural rights are rights endowed by birth and not dependent on the laws or customs of any particular culture or government. As stated in the United States Declaration of Independence, for example, the natural rights mentioned are “Life, Liberty, and the Pursuit of Happiness.” In this manner, natural rights are considered universal and inalienable, meaning they cannot be repealed by human laws.

Human rights, in contrast, are rights endowed by society, such as the right to live in safe dwellings in safe communities, the right to healthy food and water, and the right to receive healthcare. In many modern countries, citizens believe the government should help provide these basic needs to people who have difficulty obtaining them on their own. In mainly socialist societies, citizens believe the government should provide such needs to all people, regardless of their ability to obtain them.

Natural Law in the US Legal System

The American legal system is based on the theory of natural law holding that the main goal of all people is to live a “good, peaceful, and happy” life, and that circumstances preventing them from doing so are “immoral” and should be eliminated. In this context, natural law, human rights, and morality are inseparably intertwined in the American legal system.

Natural law theorists contend that laws created by the government should be motivated by morality. In asking the government to enact laws, the people strive to enforce their collective concept of what is right and wrong. For example, the Civil Rights Act of 1964 was enacted to right what the people considered to be a moral wrong—racial discrimination. Similarly, the peoples’ view of enslavement as being a denial of human rights led to ratification of the Fourteenth Amendment in 1868.

Natural Law in the Foundations of American Justice

Governments do not grant natural rights. Instead, through covenants like the American Declaration of Independence and the U.S. Constitution, governments create a legal framework under which the people are permitted to exercise their natural rights. In return, people are expected to live according to that framework.

In his 1991 Senate confirmation hearing, U.S. Supreme Court Justice Clarence Thomas expressed the widely shared belief that the Supreme Court should refer to natural law in interpreting the Constitution. “We look at natural law beliefs of the Founders as a background to our Constitution,” he stated.

Among the Founders who inspired Justice Thomas in considering natural law to be an integral part of the American justice system, Thomas Jefferson referred to it when he wrote in the first paragraph of the Declaration of Independence:

“When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

Jefferson then reinforced the concept that governments cannot deny rights granted by natural law in the famous phrase:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.”

Natural Law in Practice: Hobby Lobby vs. Obamacare

Deeply rooted in the Bible, natural law theory often influences actual legal cases involving religion. An example can be found in the 2014 case of Burwell v. Hobby Lobby Stores, in which the U.S. Supreme Court ruled that for-profit companies are not legally obligated to provide employee health care insurance that covers expenses for services that go against their religious beliefs.

The Patient Protection and Affordable Care Act of 2010—better known as “Obamacare”—requires employer-provided group health care plans to cover certain types of preventative care, including FDA-approved contraceptive methods. This requirement conflicted with the religious beliefs of the Green family, owners of Hobby Lobby Stores, Inc., a nationwide chain of arts and crafts stores. The Green family had organized Hobby Lobby around their Christian principles and had repeatedly stated their desire to operate the business according to Biblical doctrine, including the belief that any use of contraception is immoral.

In 2012, the Greens sued the U.S. Department of Health and Human Services, claiming that the Affordable Care Act’s requirement that employment-based group health care plans cover contraception violated the Free Exercise of Religion Clause of the First Amendment and the 1993 Religious Freedom Restoration Act (RFRA), that “ensures that interests in religious freedom are protected.” Under the Affordable Care Act, Hobby Lobby faced significant fines if its employee health care plan failed to pay for contraceptive services.

In considering the case, the Supreme Court was asked to decide if the RFRA allowed closely held, for-profit companies to refuse to provide its employees with health insurance coverage for contraception based on the religious objections of the company’s owners.

In a 5-4 decision, the Supreme Court held that by forcing religion-based companies to fund what they consider the immoral act of abortion, the Affordable Care Act placed an unconstitutionally “substantial burden” on those companies. The court further ruled that an existing provision in the Affordable Care Act exempting non-profit religious organizations from providing contraception coverage should also apply to for-profit corporations such as Hobby Lobby.

The landmark Hobby Lobby decision marked the first time the Supreme Court had recognized and upheld a for-profit corporation’s natural law claim of protection based on a religious belief.

Natural Law

Kirsten Rohrs Schmitt is an accomplished professional editor, writer, proofreader, and fact-checker. She has expertise in finance, investing, real estate, and world history. Throughout her career, she has written and edited content for numerous consumer magazines and websites, crafted resumes and social media content for business owners, and created collateral for academia and nonprofits. Kirsten is also the founder and director of Your Best Edit; find her on LinkedIn and Facebook.

What Is Natural Law?

Natural law is a theory in ethics and philosophy that says that human beings possess intrinsic values that govern their reasoning and behavior.

Natural law maintains that these rules of right and wrong are inherent in people and are not created by society or court judges.

Key Takeaways

Understanding Natural Law

Natural law holds that there are universal moral standards that are inherent in humankind throughout all time, and these standards should form the basis of a just society.

Human beings are not taught natural law per se, but rather we “discover” it by consistently making choices for good instead of evil. Some schools of thought believe that natural law is passed to humans via a divine presence.

Although natural law mainly applies to the realm of ethics and philosophy, it is also used extensively in theoretical economics.

Natural Law vs. Positive Law

The theory of natural law believes that our civil laws should be based on morality, ethics, and what is inherently correct. This is in contrast to what is called «positive law» or «man-made law,» which is defined by statute and common law and may or may not reflect the natural law.

Examples of positive law include rules such as the speed that individuals are allowed to drive on the highway and the age that individuals can legally purchase alcohol. Ideally, when drafting positive laws, governing bodies would base them on their sense of natural law.

«Natural laws» are inherent in us as human beings. «Positive laws» are created by us in the context of society.

Examples of Natural Law

Examples of natural law abound, but philosophers and theologians throughout history have differed in their interpretations of this doctrine. Theoretically, the precepts of natural law should be constant throughout time and across the globe because natural law is based on human nature, not on culture or customs.

When a child tearfully exclaims, “It’s not fair [that]. » or when viewing a documentary about the suffering of war, we feel pain because we’re reminded of the horrors of human evil. And in doing this, we are also providing evidence for the existence of natural law. A well-accepted example of natural law in our society is that it is wrong for one person to kill another person.

Examples of Natural Law in Philosophy and Religion

Philosophers of natural law often do not explicitly concern themselves with economic matters; likewise, economists systematically refrain from making explicit moral value judgments. Yet the fact that economics and natural law are intertwined has been borne out consistently in the history of economics.

Examples of Natural Law In Economics

Because natural law as an ethical theory can be understood to be an extension of scientific and rational inquiry into how the world works, the laws of economics can be understood as natural laws of how economies “should” operate. Moreover, to the extent that economic analysis is used to prescribe (or proscribe) public policy or how businesses ought to conduct themselves, the practice of applied economics must rely at least implicitly on some ethical assumptions:

What is the theory of natural law?

Natural law is a theory of ethics that says that human beings possess intrinsic values that govern our reasoning and behavior.

What are examples of natural law in systems of government?

In the U.S. constitution, the right of citizens to life, liberty, and the pursuit of happiness is a motto based on natural law. In the penal code, certain crimes are almost universally accepted as punishable, including murder and rape.

How does natural law affect business?

Natural law affects businesses from an ethics standpoint, whereby they a firm should not defraud its customers or other stakeholders. For instance, the marketing of drugs should be made with full disclosure of potential harms and not be sold as «snake oil.»

What are some flaws in natural law theory?

Since natural law assumes universalizing rules, it does not account for the fact that different people or different cultures may view the world differently. For instance, if people interpret differently what it means for something to be fair or just, the results will differ.

Natural law

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Natural law or the law of nature (Latin lex naturalis) is law whose content derives naturally from human nature or physical nature, and therefore has universal validity. In natural law jurisprudence, the content of man-made positive law is related to natural law, and gets its authority at least in part from its conformity to objective moral standards. Natural law theory attempts to define a “higher law” on the foundation of a universal understanding that certain choices in human life are good or evil, or that certain human actions are right or wrong.

Contents

Definition of Natural Law

Natural law or the law of nature (Latin lex naturalis) is law whose content derives naturally from human nature or physical nature, and therefore has universal validity. [3] The term “natural law” is sometimes used as a contrast to the positive law of a given political community, society, or nation-state, and can be used as a standard by which to evaluate that law. In natural law jurisprudence, the content of positive law is related to natural law (or something like it), and gets its authority at least in part from its conformity to objective moral standards.

Natural law theory attempts to define a “higher law” on the foundation of a general understanding that certain choices in human life are good or evil, or that certain human actions are right or wrong. In ethical theory, certain choices, actions or dispositions might be asserted to be inhuman, unnaturally cruel, perverse, or unreasonable from a moral point of view. In political theory, certain proposals, policies or actions might be construed as violations of “human rights.” In international jurisprudence, certain actions might be defined as “crimes against humanity,” and nations or individuals might claim immunity from legal liability or obligations.

Natural law theory consists of propositions identifying certain types of choices, dispositions or actions as either right or wrong, and of statements explaining the objectivity of these propositions and the logic by which they are derived. The term “natural law” can be used synonymously with “natural justice” or “natural right” (Latin ius naturale), although most contemporary political and legal theorists separate the two.

History

The role and interpretation of natural law has varied widely through its history. There are a number of different theories of natural law, employing different conceptions of the role of morality in determining the authority of legal norms.

Aristotle

Greek philosophy emphasized the distinction between «nature» (physis, φúσις) and man-made «law,» «custom,» or «convention» (nomos, νóμος). What was commanded by law and custom varied from place to place, but what was dictated «by nature» was universally the same. To the Greeks, the term «law of nature» therefore appeared to be a paradox rather than something that obviously existed. [5] Socrates and his philosophic heirs, Plato and Aristotle, posited the existence of “natural justice” or “natural right” (dikaion physikon, δικαιον φυσικον, Latin ius naturale), consisting of those expectations which, when human nature was taken into consideration, seemed reasonable for human beings co-existing in a society.

Aristotle is often referred to as “the father of natural law,” [6] but this appellation is debatable. Aristotle emphasized the virtues, which he considered to be universal and a higher way of life. Aristotle’s association with natural law is due largely to the interpretation given to his works by Thomas Aquinas. [7] and was based on Aquinas’ conflation of natural law and the “natural right” posited by Aristotle in Book V of the Nicomachean Ethics (= Book IV of the Eudemian Ethics). Aquinas’ influence affected a number of early translations of these passages, [8] though more recent translations render them more literally. [9] Aristotle noted that natural justice is a species of political justice, such as the scheme of distributive and corrective justice that would be established under the best political community; [10] Were this scheme to take the form of law, it could be called a natural law, though Aristotle did not discuss this and suggests in Politics that the best regime may not rule by law at all. [11]

The best evidence that Aristotle thought a natural law existed comes from Rhetoric, where Aristotle notes that, aside from the «particular» laws that each people has set up for itself, there is a «common» law that operates according to nature. [12] The context of this remark, however, suggests only that Aristotle advised that there might be occasions where it could be rhetorically advantageous to appeal to such a law, especially when the «particular» law of one’s own city was averse to the case being made; he did not assert that there actually was such a law. [13] Aristotle, moreover, considered two of the three candidates for a universally valid, natural law provided in this passage to be wrong. [14]

Stoic Natural Law

The development of this tradition of “natural justice” into one of “natural law” is usually attributed to the Stoics. Whereas the «higher» law to which Aristotle suggested one could appeal arose directly from nature (as opposed to being the result of divine positive legislation), the Stoic concept of natural law was indifferent to its source. The Stoics asserted that the universe existed according to a rational and purposeful order (a divine or eternal law), and that the means by which a rational being lived in accordance with this order was the natural law, which dictated actions that accorded with virtue. [15] These theories became highly influential among Roman jurists, and played an important role in subsequent legal theory.

Christian Natural Law

Despite the pagan origins of natural law theory, a number (though not all) of the early Church Fathers sought to incorporate it into Christianity, particularly in the West. Augustine of Hippo equated natural law with the state of man before the Fall; the implication was that after the Fall, life according to nature was no longer possible and men needed instead to seek salvation through divine law and grace. In the twelfth century, canon jurist Gratian reversed this, equating the natural and divine law. Thomas Aquinas restored the concept of natural law as something independent, asserting that, as the perfection of human reason, natural law could approach—but not fully comprehend—the eternal law and needed to be supplemented by divine law.

All human laws were to be judged by their conformity to natural law. An unjust law, which did not conform to natural law, was in a sense not a law at all. Natural law was not only used to judge the moral worth of various man-made laws, but also to determine what those laws said in the first place. [16]

the rule and measure of human acts is the reason, which is the first principle of human acts. (Aquinas, ST I-II, Q. 90, A.I.)

Aquinas asserted that moral law derived from the nature of human beings, and that it was appropriate for them to behave in a way that corresponded to their rational nature.

Natural law was inherently teleological in its preoccupation with bringing about human happiness; its content was therefore determined by a conception of what elements, whether earthly satisfactions or spiritual fulfillment, constituted happiness. The state, in being bound by natural law, was conceived of as an institution which should be directed at realizing the true happiness of its citizens. This included directing its citizens to behave in a way that would ensure their spiritual salvation. In the sixteenth century, the School of Salamanca (Francisco Suárez, Francisco de Vitoria, and their contemporaries) further developed a philosophy of natural law. After the Church of England broke from Rome, the English theologian Richard Hooker adapted Thomistic notions of natural law to Anglicanism.

Natural Law of Hobbes

By the seventeenth century, the medieval teleological view had come under intense criticism from some quarters. Thomas Hobbes instead founded a social contractualist theory of legal positivism. He declared that all men could agree that what they sought (happiness) was subject to contention, but that a broad consensus could form around what they feared (violent death at the hands of another, and loss of liberty and personal property). Natural law was defined as the way in which a rational human being, seeking to survive and prosper, would act. It could be discovered by considering humankind’s natural rights; previous interpretations had derived natural rights by considering the natural law. In Hobbes’ opinion, the only way that natural law could prevail was by all men submitting to the commands of a sovereign. The ultimate source of law now became the sovereign, who was responsible for creating and enforcing laws to govern the behavior of his subjects. Since the sovereign’s decisions need not be grounded in morality, the result was legal positivism, the concept that law was created by the state and must therefore be obeyed by the citizens belonging to that state. Jeremy Bentham further developed the theory by modifying the concept of legal positivism.

In Thomas Hobbes’s treatise Leviathan, natural law is a precept, or general rule, discovered through reason, by which a man is forbidden to do anything which is destructive of his life, or takes away the means of preserving his life; and forbidden to omit doing anything which he thinks may preserve his life.

Hobbes defines nine Laws of Nature. The first two are expounded in chapter XIV («of the first and second natural laws; and of contracts»); the others in chapter XV («of other laws of nature»):

Liberal Natural Law

Liberal natural law grew out of both the medieval Christian natural law theories and out of Hobbes’ revision of natural law.

Hugo Grotius based his philosophy of international law on natural law. In particular, his writings on freedom of the seas and just war theory directly appealed to natural law. About natural law itself, he wrote that «even the will of an omnipotent being cannot change or abrogate» natural law, which «would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs.» (De iure belli ac pacis, Prolegomeni XI). This famous argument etiamsi daremus (non esse Deum), made natural law no longer dependent on theology.

John Locke incorporated natural law into many of his theories, especially in Two Treatises of Government. There is considerable debate about whether his conception of natural law was more similar to that of Aquinas (filtered through Richard Hooker) or to Hobbes’ radical reinterpretation. Locke’s understanding is usually expressed as a revision of Hobbes’ definition of the social contract between a sovereign and the people of his state. Locke turned Hobbes’ prescription around, saying that if the ruler went against natural law and failed to protect «life, liberty, and property,» the people could justifiably overthrow the existing state and create a new one.

While Locke spoke in the language of natural law, the content of this law was largely protective of natural rights, and this was the language preferred by later liberal thinkers. Thomas Jefferson, echoing Locke, appealed to unalienable rights in the United States Declaration of Independence: «We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.»

Contemporary Catholic Understanding

The Roman Catholic Church continues to hold the view of natural law set forth by Thomas Aquinas, particularly in his Summa Theologiae, and often as interpreted by the School of Salamanca. This view is also shared by some Protestant denominations.

They understand human beings to consist of body and mind, the physical and the non-physical (or soul), inextricably linked. Humans are capable of discerning the difference between good and evil because they have a conscience, and can pursue many manifestations of goodness. Some of these, such as procreation, are common to other animals, while others, like the pursuit of truth, are inclinations peculiar to the capacities of human beings.

To know what is right, one must use one’s reason and apply it to Aquinas’ precepts. The most important is the primary precept, self-preservation. There are also four subsidiary precepts: procreation, education of children, living in society, and worshipping God. In addition to these, there are secondary precepts, which Aquinas did not specify, and which are therefore open to interpretation and flexibility. Any rule that helps man to live up to the primary or subsidiary precepts can be a secondary precept, for example:

Natural moral law is concerned with both external and internal acts, also known as action and motive. In order to be truly moral, a person’s motive as well as his actions must be right. The motive must coincide with Aquinas’s cardinal or theological virtues. The cardinal virtues, which are acquired through reason applied to nature, are prudence, justice, fortitude and temperance. The theological virtues are hope, charity and faith.

According to Aquinas, to lack any of these virtues is to lack the ability to act morally. For example, a man who possesses the virtues of justice, prudence, and fortitude, yet lacks temperance, will find himself deviating from the moral path, despite his good intentions, due to his lack of self control and desire for pleasure,

In Contemporary Jurisprudence

In jurisprudence, natural law has a number of different meanings. It can refer to the doctrine a) that just laws are immanent in nature and can be «discovered» or «found» but not «created» by such exercises as a bill of rights; b) that they can emerge during the natural process of resolving conflicts, as embodied by the evolutionary process of the common law; or c) that the meaning of law is such that its content cannot be determined except by reference to moral principles. These meanings can either oppose or complement each other, although they share the concept that natural laws are inherent and not designed by man.

Legal positivism would say that an unjust law is nevertheless a law; natural law jurisprudence would say that an unjust law is legally deficient. Legal interpretivism—defended in the English-speaking world by Ronald Dworkin—claims to have a position different from both natural law and positivism.

The concept of natural law was important in the development of the English common law. In the struggles between Parliament and the British monarch, Parliament often made reference to the Fundamental Laws of England, which were at times declared to have embodied principles of natural law since time immemorial, and to set limits on the power of the monarchy. William Blackstone, however, declared that while natural law might be useful in determining the content of the common law and in deciding cases of equity, it was not itself identical with the Laws of England. The implication of natural law in the tradition of common law has meant that opponents of natural law and advocates of legal positivism, like Jeremy Bentham have also been staunch critics of the common law.

Natural law jurisprudence is currently undergoing a period of reformulation (as is legal positivism). The most prominent contemporary natural law jurist, Australian John Finnis (based in Oxford), Americans Germain Grisez and Robert P. George, and Canadian Joseph Boyle have all tried to construct a new version of natural law. The nineteenth-century anarchist and legal theorist, Lysander Spooner, was also a figure in the expression of modern natural law.

«New Natural Law» as it is sometimes called, which originated with Grisez, focuses on “basic human goods,” such as human life, which are «self-evidently» and intrinsically worthwhile, and states that these goods reveal themselves as being incommensurable with one another.

See also

Notes

References

External links

All links retrieved November 13, 2018.

General Philosophy Sources

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Natural Law

Natural law is the philosophy that certain rights, moral values, and responsibilities are inherent in human nature, and that those rights can be understood through simple reasoning. In other words, they just make sense when you consider the nature of humanity. Throughout history, the phrase “natural law” has had to do with determining how humans should behave morally. The law of nature is universal, meaning that it applies to everyone in the same way. To explore this concept, consider the following natural law definition.

Definition of Natural Law

1350-1400 Middle English

What is Natural Law

Natural law is a philosophy that is based on the idea that “right” and “wrong” are universal concepts, as mankind finds certain things to be useful and good, and other things to be bad, destructive, or evil. This means that, what constitutes “right” and “wrong,” is the same for everyone, and this concept is expressed as “morality.” As an example of natural law, it is universally accepted that to kill someone is wrong, and that to punish someone for killing that person is right, and even necessary.

To solve an ethical dilemma using natural law, the basic belief that everyone is naturally entitled to live their own lives must be considered and respected. From there, natural law theorists determine what an innocent life is, and what elements comprise the life of an “unjust aggressor.”

The natural law theory pays particular attention to the concept of self-defense, a justification often relied upon in an attempt to explain an act of violence. As has been the case with self-defense claims throughout history, it is often difficult to apply what seems to be a simple concept (right vs. wrong) to issues that are actually complex in nature.

For example, acts of violence, like murder, work against people’s natural inclination to live a good and innocent life. Therefore, in a situation where “the needs of the many outweigh the needs of the few,” and an act of violence is committed against the smaller group of people in order to save the larger one, the act still goes against human nature.

Killing another person is forbidden by natural law, no matter the circumstance, as it goes against the human purpose of life. Even if someone is, say, armed and breaking into another person’s home, under natural law the homeowner still does not have the right to kill that person in self-defense. It is in this way that natural law differs from actual law.

Natural Law in the American Legal System

Natural law in the American legal system is defined as a legal theory that considers law and morality to be so connected to one another that they are practically the same. Since natural law in the American legal system is focused on morality, as actions can be defined as both “good” and “bad,” natural law theorists believe that the laws that humans create are motivated by morality, as opposed to being defined by an authority figure like a monarch, a dictator, or a governmental organization.

This means that people are guided by their own human nature to determine what laws should be created, in accordance with what they know to be “right” and “wrong,” then proceed to live their lives in obedience of those laws once they have become legislation.

Natural law in the American legal system is centered on the belief that everything in life has a purpose, and that humans’ main purpose is to strive to live a life that is both “good” and happy. Any behaviors or actions that deliberately obstruct that one simple goal are considered to be “unnatural” or “immoral.”

Just as everything is deemed to have a purpose in natural law, so too do the legislated laws that are created. The simple purpose of legislation is to provide a way to maintain peace, and achieve justice. Natural law theorists believe that a law that fails to meet this goal is not really a law at all. Therefore, if there are any flaws determined to be present with an existing law, natural law dictates it is not a law that is to be followed. This stands in sharp contrast to legal positivism, which is the legal theory that, even if a law is deeply flawed, it is still a valid law that must be followed.

Natural Rights vs. Human Rights

It may be simple semantics, but the adjective before the word “rights,” whether that adjective is “human” or “natural,” can make a difference in how the term is defined. When asking the question of natural rights vs. human rights, consider that natural rights are those endowed by birth and are to be protected by the government. These rights include life, liberty, and property, among others.

Human rights, on the other hand, are rights deemed so by society. These include such things as the right to live in a safe, suitable dwelling, the right to healthy food, and the right to receive healthcare. In many modern societies, citizens feel that the government should provide these things to people who have difficulty obtaining them on their own.

How the Constitution Addresses Natural and Human Rights

At the time that the Declaration of Independence was drafted, the “rights” that people spoke of were thought to be natural, or God-given. However, beginning in the 20th century, the term “rights” evolved to be referred to as “human rights.” While natural rights and human rights are essentially universal, there still exist some significant differences between them.

Natural rights are not granted to people by their government. Governments simply establish the political conditions under which people are permitted to exercise their natural rights, and then the government expects its people to live according to those conditions. Conversely, human rights are those granted to people by the governmental authorities. The term “human rights” has become a catch-all term for anything that society as a whole believes to be important.

Natural rights, by their very nature, do not change with time. Everyone everywhere has always been endowed with the same right to “life, liberty, and the pursuit of happiness.” By contrast, human rights are subject to change and often do, with new human rights being recognized, defined, and promoted by governmental organizations.

Natural Law Examples in Religious Beliefs

An example of natural law being tested in the courts can be found in the case of Gilardi v. U.S. Dept. of Health and Human Services. Here, two brothers – Francis and Philip Gilardi – own Freshway Foods and Freshway Logistics, both of which are fresh-food processing companies located in Sidney, Ohio. The brothers are Roman Catholic, and found that the Affordable Care Act’s mandate that companies provide employee health insurance that covers birth control options conflicted with their religious beliefs. The men stood their ground to operate their companies in accordance with their religious beliefs – refusing to compensate employees for birth control options in their health insurance plans.

The Affordable Care Act, colloquially referred to as “Obamacare,” derives its authority to mandate options for contraception and sterilization through natural law, seeking to provide healthcare options that are for the good of the people in general. No individuals covered by these insurance plans are required to utilize any of the services. When the case was heard by the appellate court, Judge Janice Rogers Brown ruled that the Freshway companies are not “people” as defined by the Constitution and the federal Religious Freedom Restoration Act (i.e. individual human beings), so they are not able to exercise a religious belief and cannot claim that the mandate offends “them.”

Natural Law and the Declaration of Independence

Judge Brown is known for her arguments in favor of judges seeking out a “higher authority than precedent or man-made laws” when making her opinions. She referred to “moral” law, which makes this a good example of natural law infiltrating the justice system, in making her decision, stating that forcing the Gilardis to comply with the mandated provision of contraception methods would be a “compelled affirmation of a repugnant belief.” Brown also concluded that because the Freshway companies are run as closely held corporations, with each having only two owners, then the brothers could sue in that capacity to express their personal objections to the mandate as it conflicts with their religion.

Judge Brown isn’t the only one who feels that man’s laws must yield to a “higher authority,” and natural law beliefs. Supreme Court Justice Clarence Thomas has reportedly been known to express his belief that natural law should be referred to when justices are attempting to interpret the Constitution. Thomas was even quoted during his Senate confirmation hearings in 1991 as saying:

“We look at natural law beliefs of the Founders as a background to our Constitution.”

Those who believe that natural law should be referred to in this way, and that justices should turn to a higher power, often refer to the Declaration of Independence for support. Specifically, they refer to its opening lines, wherein Thomas Jefferson referred to God’s law, as he wrote:

“When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

Also applicable is the section that is arguably more well-known:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.”