Natural Law Theory

• Natural Law Theory is among the oldest and most influential schools of thought in legal philosophy.
• Posits that law comes from moral principles inherent in human nature or a higher authority like God or reason.
• States laws aren't just rules imposed by governments but are rooted in universal moral standards that apply to everyone, everywhere.
• Natural law theory is a philosophical concept holding that universal moral and ethical principles are inherent in the natural world and can be found through human reason.
• This theory has origins in ancient Greek philosophy, especially Aristotle, who believed in "natural justice."
• The Stoics later saw natural law as an egalitarian morality system based on reason and harmony with nature.
• Over the centuries, natural law theory has been interpreted and applied differently, its premise remaining that there are fundamental moral truths independent of human laws.
• It has been a subject of continuous debate and reinterpretation in jurisprudence.
• Aristotle's idea of natural justice was based on observations of ancient Greek societies, emphasizing the subordination of certain groups.
• The Stoics later imagined a more egalitarian "law of nature" grounded in reason.
• These variances highlight the complex and contradictory nature of natural law theory, where philosophers have interpreted its principles and applications differently.
• As understandings of natural law have evolved, scholars have studied its relationship to positive law and its potential to serve as a universal standard of justice.
• Natural law theory explains law by focusing on the requirements of reason.
• Aquinas used the term "natural" to refer to things that align with practical reason, like laws or virtues.
• The theory uses an axiom to understand a concept's nature by understanding its capacities, actions, and objects.
• The order of knowing and being is based on given nature, while knowledge of our nature is influenced by understanding possible choices.
• Natural law theory isn't influenced by naturalistic fallacies.
• It provides insights into the sense and bounds of others, such as the possibility of acquiring knowledge or saving lives.
• The theory addresses the merits of law, its role in adjudication, and its necessity.

Development of Natural Law

• The history of natural law is complex and has evolved over 2,500 years as an expression of humankind's search for something higher than positive law.
• Natural law theories have evolved with changing social and political environments, with the appeal to something higher than positive law at its center since Greek philosophy.
• Natural law is a heritage of Greek and Christian thought, from Antigone's unwritten laws to the Stoics, Cicero, Aquinas, Grotius, and Blackstone.
• Seventeenth- and eighteenth-century thinkers saw natural law as prominent in ancient and medieval thought but gave it a new role with the division of Christianity and rise of modern statehood.
• Classical natural law gave Europe a legal by-product due to the Protestant reformation.
• Ratnapa la suggests that the idea of a higher moral law that positive human law must not violate has a long history in the West and East.
• St. Augustine of Hippo (354–430) embraced Paul's notion and developed that man lived freely under natural law before his fall and bondage under sin.
• In the 12th century, Gratian equated natural law with divine law, otherwise known as the revealed law of the Old and New Testaments, in particular the Christian version of the Golden Rule.
• St. Thomas Aquinas (c. 1224/25–1274) systemized natural law, maintaining that the eternal law of divine reason is unknowable to us in its perfection but is known in part not only by revelation but also by reason.
• The “law of nature comprises precepts that humankind can formulate, preserving one's good, fulfilling nature's inclinations, and pursuing knowledge of God”.
• Human law must be the application of natural law.

Natural Law in the Enlightenment and the Modern Eras

• Other Scholastic thinkers, like John Duns Scotus (1266–1308), William of Ockham (c. 1285–1347/49), and Francisco Suárez (1548–1617), emphasized divine will, not divine reason, as the source of law.
• This “voluntarism" influenced Roman Catholic jurisprudence of the Counter-Reformation in the 16th and early 17th centuries, reviving the Thomistic doctrine and becoming the main philosophical ground for papal exposition of natural right in the social teaching of Pope Leo XIII (1810–1903) and his successors.
• Hugo Grotius, a Calvinist, said nations were subject to natural law, valid even if God did not exist.
• Thomas Hobbes defined the right of nature as the liberty to preserve one's nature and a law of nature as a precept or general rule found by reason, enumerating the elementary rules on which peace and society could be established.
• John Locke, Charles-Louis de Secondat Montesquieu, and Jean-Jacques Rousseau contributed to the "school of natural law," attempting to construct a whole edifice of law by rational deduction from a hypothetical "state of nature" and a "social contract."
• Confidence in appeals to natural law evaporated in the early 19th century, the philosophy of Immanuel Kant and Jeremy Bentham's utilitarianism weakening the belief that "nature" could be the source of moral or legal norms.
• Interest in natural law revived in the mid-20th century, sparked by the belief that the Nazi regime had been essentially lawless, even though it had been the source of a significant amount of positive law.
• Natural law theory holds that there are objective moral laws derived from human nature and reason, superior to positive laws.
• This view, dating back to ancient Greek philosophers like Aristotle, asserts that there is a higher, natural form of justice that transcends human societies.
• According to natural law theorists, these moral absolutes are accessible through human reason and are binding regardless of whether they are codified in positive law.

Key Features of the Natural School of Law

• Law and morality are inherently connected and laws are valid only if they align with certain moral principles or the natural order, believed to be universal and accessible through human reason.
• Human rights, such as the right to life and liberty, are considered part of natural law and not contingent on specific legal systems or governments.
• Natural law is universal, applying to all people at all times and transcends local laws, social practices, and government decrees.
• Moral principles behind natural law are immutable and eternal, such as the prohibition of murder.
• Human beings possess inherent reason to discern what is morally right and wrong, enabling individuals to understand the natural law.
• Aristotle argued that human beings are social and rational creatures who can understand and live by natural moral laws.
• Many natural law theorists argue that law is derived from a divine or higher authority.
• Thomas Aquinas argued that human laws should reflect divine law, contradicting it is not a true law.
• The government's role is to recognize and enforce the moral principles inherent in natural law, only legitimate if they respect these laws.
• Natural law theorists would argue that laws that violate fundamental human rights are unjust and should not be obeyed.

Two Kinds of Natural Law Theory

• It's important to know two kinds of theory by the name of natural law.
• The first is a theory of morality characterized by the bearing of moral propositions of what is objective truth-value objectively true or false, where natural law moral theory is committed only to the objectivity of moral norms.
• The second thesis constitutes the core of natural law moral theory is the claim that morality standards are derived from human beings and nature.
• Aquinas identifies the rational nature of human beings that defines moral law, and since human beings are by nature rational, it is appropriate to behave in a way that conforms to their rational nature, where Aquinas derives moral law from human beings, "natural law."
• There is another kind of natural law theory having to do with the relationship of morality to law.
• According to natural law theory of law, there is no division between the notion of law and morality, at least some laws depend for their “authority” not on convention, but on the logical relationship in which they stand to moral standards.

Natural Law and its Application

• The expression “application of natural law” applies to using natural principles in law-making and reforms.
• The second concerns the extent to which law or legal judgment has relied on the principles of natural law.
• Scholars have given a diversity of views on natural law in general, where Olivecrona writes that natural law is a system of norms and principles suitable for guiding the conduct of free agents, and Hittinger mentions the importance of the articulating of some basic human goods.
• Natural law would disclose the overlap of law and morality requisite for legislation and the public and legal vindication of individual rights.
• In the domain of domestic and international law, three frameworks have most closely been tied to the idea of natural law.
• These include universal/human rights frameworks, jus cogens norms in international law, and constitutional law and interpretations.
• Each of the three have played a vital role in securing and advancing natural law principles.

Natural Law and the Idea of Justice

• Ancient Greek philosophers like Aristotle assert that natural justice exists that transcends the laws and customs of any particular society.
• The view of a "natural justice" is independent of human legislation has been a central tenet of natural law theory throughout history.
• Positive law should reflect and uphold innate principles of right and wrong rather than simply codify prevailing social norms.

The Nexus of Natural Law and Human Rights

• The relationship between natural law and human rights has been a philosophical and jurisprudential discourse.
• The natural law tradition has shaped the development of human rights principles over the centuries.
• Aristotle's distinction between what is just by nature and what is just by law laid the groundwork for a higher, universal justice transcending legal statutes, which later inform the philosophical foundations of human rights frameworks.
• Fuller offered a procedural natural law theory that didn't deny a substantive natural law theory is possible.
• Positive law, referred to as lus or jus gentium, refers to the set of rules found in almost all legal systems, essential for people to live together in a political society well.
• They are referred to as general principles of law recognized by civilized nations, ius cogens erga omnes, higher law, or fundamental human rights.
• Legal wrongs are called mala in se, distinct from mala prohibita.
• Some legal theories view these principles as belonging to law by conceptual necessity, identifying the rational necessity of means needed to secure non-optional purposes.
• These elements are both positive and natural, requiring human flourishing.

The Tension Between Natural Law and Positive Law

• The relationship between natural law and positive (man-made) law has been a subject of philosophical and legal debate.
• What is "just by nature" is not always the same as "just by law".
• This tension has led to disagreements over the meaning and application of natural law theory.
• Positive law is often inconsistent with the principles of natural law.
• Natural law theorists say there are moral and ethical principles that transcend positive law and serve as a standard to judge man-made laws.

Natural Law

• (Purely) Positive Law as Concurrent Dimensions of Legal Reasoning
• Dworkin's natural law theory of law is based on legal materials and moral standards in adjudication, where morally sound interpretation is legally correct.
• Moral standards function as a justification for judicial decisions, but when their fit with society is weak, judges applying these standards apply morality rather than law.
• A law theory that doesn't adhere to Dworkin's tradition will not accept the thesis that there is one uniquely correct answer in law, nor deny his assumption of existing legal materials is "enough" to license using moral standards to identify the legally correct interpretation of the law.
• Legal reasoning must often show that two or three alternative interpretations are distinguished by being correct, as opposed to uniquely correct.
• Natural law theory, supports that a policy's justness, wisdom, efficiency, or prudentness is not enough to determine its legality.
• Natural law theory may be more cautious in departing from settled law, authorizing judges to proceed according to the higher and perennial law of humanity, ius gentium, which for subjects and judges, deprived settled law of its directiveness and is treated as not law.

The Role of Reason in Natural Law Theory

• The Stoics' views of natural law conforming to the logos, or reason, has been a tenet of natural law.
• Reason is key to deriving universal moral laws.
• Emphasis on reason reflects the belief that objective moral truths can be accessed through rational faculties.

The Interplay of Religion and Secular Perspectives in Natural Law Theory

• The relationship between natural law theory and religious beliefs has been a subject of debate.
• Philosophers and jurists have grounded natural law in divine or religious precepts, or developed a secular understanding of natural law.
• The broader struggle tries to reconcile universal moral principles with the diversity of cultures and beliefs.
• Religious natural law proponents, like Thomas Aquinas, claim the natural law is rooted in God's eternal law and can be discerned with human reason in conjunction with revelation, inseparable from the lawgiver and serves as a bridge between the human and the divine.
• Secular natural law theorists, like Hugo Grotius, maintain that the precepts of natural law can be derived from reason alone, grounded in inherent rationality.
• This shapes the development of natural law and informs our understanding of justice.

The Enduring Relevance of Natural Law Theory

• Natural law, despite historical disagreements, remains a significant concept in modern jurisprudence.
• Its influence is evident in debates among jurists, philosophers, and legal scholars.
• It provides a moral framework for justice, grounded in human dignity and the common good.

Constitutions and Constitutional Interpretations

• The application of natural law theory in domestic constitutions is a significant research area, particularly in India.
• The Indian constitution, with a history of over fifty years, has been influenced by natural law philosophy and its value in establishing legal arguments and rules.
• Article 21 of the Indian Constitution, stating no person shall be deprived of their life and liberty except according to the procedure established by law, has been a central theme of discussion.
• The concept of 'due process' draws its nourishment from natural or higher law.
• In the case of Maneka Gandhi v. Union of India, Chief Justice Beg emphasized divorcing natural law from constitutional law to avoid defeating the Constitution's basic purposes.
• The Maneka Gandhi judgment introduced reasonableness of restrictions in the protection of life and liberty.
• Indian constitutional jurisprudence evolves based on natural law ideals, preserving the inherent rights of men, including women.

Potential Weaknesses of Natural Law Theory

• A key concern is the difficulty in objectively determining the moral laws that are said to be inherent in nature.
• Different thinkers have proposed divergent conceptions of natural law, creating challenges in establishing a universally accepted set of moral principles.
• This subjectivity allows it to be used to justify laws and social systems, including unjust or oppressive systems.
• Critics have argued that natural law theory fails to adequately account for the diversity of moral perspectives and cultural norms across human societies.
• This requires a more rigorous approach to determining the foundations of law and ethics.

Jus Cogens Norms of International Law

• Jus cogens are superior norms in international law, mandatory for all members of the international community, based on Article 53 of the Vienna Convention on Law of Treaties (1969).
• Jus cogens norms are accepted by the international community, where no derogation is permitted and can only be modified by a subsequent norm of law having the same character.
• They are developed as a natural law concept while being incorporated as legal positivism and modern international law.
• They are non-derogable, fundamental, and represent principles of natural law with universal application.
• Several international institutions establish the importance of jus cogens norms.
• In 2022, the International Law Commission adopted draft conclusions identifying jus cogens norms, including the prohibition of aggression, genocide, crimes against humanity, basic rules of humanitarian law, racial discrimination, apartheid, slavery, torture, and the right of self-determination.

Critique of the Natural School of Law

• Natural School of Law has been influential, it has also faced criticism from other schools of thought.
• One critique is its ambiguity and subjectivity.
• Natural law theory is based on moral principles difficult to define universally and influenced by cultural, religious, or personal biases.
• Different societies may have conflicting views on "natural" rights.
• Legal positivism argues that law is created by legitimate authorities with no connection between law and morality.
• A positivist would argue that laws are valid because they are enacted by an authority, not because they conform to moral principles.
• Natural law fails to account for cultural differences in moral systems, as what one culture considers "natural" or "moral" is vastly different from what another believes.
• Natural law theory's insistence cannot accommodate diversity on universal moral principles.
• Some argue that natural law's claim to universality is historically and contextually problematic as legal systems and moral values have evolved.
• Natural law theory is too abstract and impractical in real-world legal systems, with no guidance on how to resolve disputes or moral claims.
• In a legal dispute, it is unclear how precisely abstract natural law principles govern concrete issues.

Defenders of Natural Law

• Many legal philosophers continue to defend natural law theory, saying it provides a necessary moral foundation for law and justice.
• A contemporary natural law theorist argues that natural law is grounded in basic human goods and that legal systems must protect these goods to be just.
• A modern natural law philosopher emphasizes the connection between natural law and human dignity, particularly in the context of bioethics and human rights.
• Aristotle argued that there is a natural order and purpose to the universe and humans, as rational creatures, must live to.
• Cicero strongly advocated for the idea of natural law and developed the idea of natural law in the Western tradition.
• Thomas Aquinas synthesized Christian theology with Aristotle's natural law theory.
• John Locke argued that natural law gives individuals inalienable rights such as life, liberty, and property, and that the right to natural rights was foundational for the American Revolution.
• Hugo Grotius held that natural law is universal and applies to all people, even in international relations.
• Jean-Jacques Rousseau believed in the idea of "general will," which he saw as an expression of natural law where the state should reflect and the laws should align, rooted in the natural principles of equality and freedom.