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Transcript of Natural Law Theory Approach
Natural Law Theory Approach
A Written Report
College of Law
University of Eastern Philippines
University Town, Northern Samar
In Partial Fulfillment
Of the Requirement for the Course
Human Rights Law
June 2014
ABSTRACT
In the context of our predecessors on ancient philosophy,
natural law is a universal rule based on reason alone. That is
higher than human positive law. Under natural law theory, reason
establishes a universal precept that identifies good or bad even
if there no same principles established in civil law.
The term is defined as a philosophical system of legal and
moral principles purportedly deriving from a universalized
conception of human nature or divine justice rather than from
legislative or judicial action. (Black’s Law Dictionary 9th ed.)
Introduction
"Natural law, as it is revived today, seeks to organize the
ideal element in law, to furnish a critique of old received
ideals and give a basis for formulating new ones, and to yield a
reasoned canon of values and a technique of applying it. I should
prefer to call it philosophical jurisprudence. But one can well
sympathize with those who would salvage the good will of the old
name as an asset of the science of law." (Roscoe Pound, The
Formative Era of American Law (1938).
To begin with, the cradle of natural law speaks of the divine
order of the progenitor. It is anchored on the instinct of man
and his profound virtue which is pity. Man is naturally
reasonable and his inclination to do well is the core of natural
law.
Importance of natural law
The crucial part of natural law is natural inclination,
rational inclination to obey the divine. Without natural law,
faith cannot be cultivated into a general mandate of conscience.
Definition
Natural law is a system of law that is determined by nature,
and so is universal. (Strauss Leo, 1968 “Natural Law”
International Encyclopedia of Social Sciences, Macmillan). The
classic definition of the term is that natural law refers to the
use of reason to analyze human nature both social and personal
and deduce binding rules of moral behavior from it. (Natural Law,
Columbia Electronic Encyclopedia, 6th ed. Columbia University
Press. 2007). On the other hand, in the context of legal theory,
natural law is considered as basis of interpretation of positive
law. To understand the concept, philosophers had theorized many
definitions and explanations of natural law. First one to attempt
is Plato. According to him, we live in a natural universe. He
believed that there is even higher truth than justice that only a
very few will come to know. This higher truth Plato calls the
Good, which is the cosmic principle of order that unites both
physical and ethical principles in a grand synthesis. It is that
which gives the whole universe and everything in it, a meaning
and purpose.1 However, to explain the Good is near to quite
1 Brian R. Nelson, Western Political Thought: From Socrates to the Age of Ideology, 2nd ed., (New Jersey: Prentice Hall.,)p. 34.
impossible because it cannot be grasped simply in logical terms.
For Plato, knowing the Good is to have a supernatural insight
into the rational structure of the whole universe. There is an
element of mysticism in his theory, but this in no way
contradicts his emphasis upon rational knowledge. The dialectical
acquisition of knowledge is the necessary condition of grasping
the Good.2
History
The sophists
The stoics
Greek philosophy
Contemporary times
Natural law and natural rights
What follow natural law are natural rights. Natural law may be
defined as the divine inspiration in man of the sense of justice,
fairness, and righteousness, not by divine revelation or formal
promulgation, but by internal dictates of reason alone.3 The
binding force of natural law grasp all men at all times, in every
individual, there is always a fundamental understanding of right
and wrong, based on the basic standard of the criterion that is
good and evil. In other words, there is an innate nature in every
2 Ibid, p. 35.
3 Hector S. De Leon and Hector M. De Leon, Jr., The Law on Obligations and Contracts, 2011 ed., (Philippines: Rex Printing Company Inc.,) p. 2
man known in his heart and conscience by the dictates of his
moral nature and is not a product of theorizing which is the good
or evil. Thus, we know that killing for the sake of killing is
bad or evil because it is contrary to what we believe is just,
fair or righteous. When we speak of this inward instinct of
justice, fairness, and righteousness in man as divinely inspired
by the dictates of his higher nature, we are talking about
natural law or the law of nature.4 As compared to divine law,
there is difference. Divine law is the law of religious faith
made known to man by means of direct revelation. On the other
hand, natural law is impressed in man as the core of his higher
self at the very moment of being or even before that.5
Natural rights are those rights possessed by every citizen
without being granted by the State for they are given to man by
God as a human being created to His image so that he may live a
happy life.6 The examples of this are the right to life, liberty,
and property. According to Justice William Douglas (U.S. Supreme
Court) explains natural rights in these words: “Man gets his
rights from the creator. They come to him because of the divine
spark in every human being.” Thus deep within his conscience, man
discovers a law he has not laid upon himself but inscribed by God
4 Ibid., p. 3
5 Ibid.
6 Hector S. de Leon; Textbook on the Philippine Constitution; 2008 edition (Quezon City: Rex Printing Company Inc.), p. 116
and which he must obey. Even natural law, however, imposes
limitations against the misuse or abuses in the exercise of ones
right. Every right involves a corresponding responsibility to
others and to society.7
Natural law and human rights
Natural law and human rights are closely connected to each
other as interdependent forces. A question is asked commonly,
what are human rights?
Human rights are commonly understood as being those rights
which are inherent to human being. The concept of human rights
acknowledges that every single human being is entitled to enjoy
his or her human rights without distinction as to race, color,
sex, language, religion, political or other opinion, national or
social origin, property, birth or other status. Human rights are
legally guaranteed by human rights law, protecting individuals
and groups against actions which interfere with fundamental
freedoms and human dignity.8 They are expressed in treaties,
customary international law, bodies of principles and other
sources of law. Human rights law places an obligation on States
to act in a particular way and prohibits States from engaging in
specified activities. However, the law does not establish human
rights. Human rights are inherent entitlements which come to
7 Ibid. p. 117
8 Human Rights A Basic Handbook for UN Staff (Office of the High Commissioner for Human rights, United Nations Staff College Project). P. 2
every person as a consequence of being human. Treaties and other
sources of law generally serve to protect formally the rights of
individuals and groups against actions or abandonment of actions
by Governments which interfere with the enjoyment of their human
rights.9
The following are some of the most important characteristics
of human rights:
1. human rights are founded on respect for the dignity and
worth of each person;
2. human rights are universal, meaning that they are applied
equally and without discrimination to all people;
3. human rights are inalienable, in that no one can have his
or her human rights taken away other than in specific
situations for example, the right to liberty can be�
restricted if a person is found guilty of a crime by a
court of law;
4. Human rights are indivisible, interrelated and
interdependent, for the reason that it is insufficient to
respect some human rights and not others. In practice, the
violation of one right will often affect the respect of
several other rights. All human rights should therefore be
seen as having equal importance and of being equally
9 Ibid. p. 3
essential to respect for the dignity and worth of every
person.10
Aristotle’s Theory of Natural Law
Aristotle did affirm the existence of a “law of nature,” but
he was admired by and influenced the American Founders more for
his related views on republican government and the rule of law.
Aristotle was regularly included by the Founders in their lists
of reliable and authoritative political philosophers. When asked
once what was the philosophy underlying the Declaration of
Independence, Jefferson replied that: “All its authority rests on
the harmonizing sentiments of the day, whether expressed in
conversation, in letters, printed essays, or in the elementary
books of public right, as Aristotle, Cicero, Locke and Sidney.
John Adams similarly wrote that the principles of the American
Revolution “are the principles of Aristotle and Plato, of Livy
and Cicero, and Sidney, Harrington, and Locke; the principles of
nature and eternal reason; the principles on which the whole
government over us now stands.”11
The following are acknowledged doctrines which Aristotle
devised himself:
10 Ibid.
11 Adams, Novanglus, No. 1.
1. government should govern for the good of the people, not
for the good of those in power;
2. there is a natural aristocracy, and skilled statecraft
arranges things so that this element acquires authority,
or, failing that, blends democratic and oligarchic
influences in society to approximate to that outcome;
3. mixed regimes are better than pure regimes, because they
are more stable;
4. the best form of government in nearly all circumstances
involves the balancing of aspects of all three pure regimes
(kingship, aristocracy, and timocracy);
5. A pure democracy can easily turn into a tyranny of the
majority.
For Aristotle there is a very close connection between justice
and law, so much so that he is willing to say that the general
virtue of justice may be alternatively described as
“lawfulness.”12 The opposition commonly drawn between “natural
justice” (and “natural right”) and “natural law” is therefore
unwarranted in the case of Aristotle.13 The reason is not
difficult to see: particular judgments about what is equal or
just immediately imply corresponding generalizations, since there
12 Nicomachean Ethics, V.1
13 Richard Tuck, Natural Rights Theories, Cambridge, CUP 1982.
would be no reason why similar cases should not be decided in the
same way. That this allotment should be 80/20 implies that
similar cases should have similar allotments. Thus, on
Aristotelian terms, a law is “by nature” if the equality which it
aims to ensure is such that it is justified by appeal to
something other than an agreement or decision. Similarly a law
would be “contrary to nature” if it forbade equalities which a
law which was “by nature” would aim to effect, or if it commanded
corresponding inequalities. By a “law of nature,” then,
Aristotle does not mean statutes, or a system of rules,
discernible by intellectual perception; rather, what he means are
recurring equalities or inequalities in the nature of things,
which, he considers, serve to justify general claims involving
the distribution of things and actions. Three important things
should be noted about a “law of nature” in this sense:
First, Aristotle thinks that a “law of nature” may
appropriately be invoked as grounds for disobeying a human law
which contravenes it, since the “law of nature” has the higher
authority. This is clear from his favorable reference to the
Antigone of Sophocles and his willingness to contemplate jury
nullification in the Rhetoric.14 It is unclear from the text on
what grounds Aristotle held that a law of nature has the higher
authority; but we may speculate that his view here is connected
14 http://www.nlnrac.org/classical/aristotle
with his views expressed elsewhere that the ultimate causes of
nature are divine, and that human artifice should assist or
complete nature rather than subvert it.15
Second, it may reasonably be wondered why, if something is a
“law of nature,” it is not recognized and followed universally by
human beings. In fact no prescription seems to be acknowledged by
all cultures and times, not even “Do not murder.” The puzzling
language of the Nicomachean Ethics, which defines nature as
something that has the same “force” or “influence” in all times
and places, suggests how Aristotle would deal with this
problem.16 His view seems to be that nature, for its part,
invariably suggests to us the appropriateness of framing certain
precepts (viz. concerning what is “just by nature”), but we, for
our part, need to have the appropriate sensitivity to this
influence. For example, on this view we frame a precept of the
form, “Do not murder,” and say that this is just by nature, in
view of our being sensitive to the “nearness and dearness” of
each human being to every other.17 This nearness and dearness is
an objective reality about our similarity and potential
reciprocal relationships with members of the same kind; yet we
may fail to be sensitive to this reality. We do not, of course,
15 Ibid. ,
16 Ibid.,
17 Ibid.,
merely intellectually perceive that human beings are near and
dear to one another; rather, we sense or feel these ourselves,
which is to say that we are inclined to regard another’s good as
our own good, and we are prepared to act to protect and promote
it. Yet it can happen, in some cultures or circumstances, that
our sensitivity is suppressed or deformed, and in those unusual
conditions the precept “Do not murder” will either not be
articulated by us or will fail to have force. In such cases it is
not nature that has changed, or the law of nature; nature remains
the same, but we have failed to respond adequately to it, through
a failure of sensitivity.
Third, it seems to be Aristotle’s view that a “law of nature”
or what is “just by nature” never has an effect on our actions
without some admixture of the conventional and the arbitrary. No
precept is purely natural; all precepts are framed with a view to
an application to particular circumstances, and for this
something arbitrary will be required. Aristotle’s helpful example
is of the difference between wholesale and retail measures: in
all times and places, people use larger measures in wholesale
markets than in retail; they do this in view of the nature of the
case—the wholesale market involves a higher-level distribution of
goods for sale, and therefore it calls for larger measures—and in
this sense “by nature wholesale measures are larger than retail;”
nonetheless, which measures to use at each level is purely a
matter of convention like kilograms rather than pounds, and grams
rather than ounces.
The Law of Nature is so unalterable, that God himself cannot
change it. For the Power of God be infinite, yet we may say, that
there are some Things to which this infinite Power does not
extend, because they cannot be expressed by Propositions that
contain any Sense, but manifestly imply a Contradiction. For
Instance then, as God himself cannot effect, that twice two
should not be four; so neither can he, that what is intrinsically
Evil should not be Evil. And this what Aristotle meant. Some
Things are no sooner mentioned than we discover Depravity in
them. For as the Being and Essence of Things after they exist,
depend not upon any other, so neither do the Properties which
necessarily follow that being and Essence. Now such is the Evil
of some Actions, compared with a Nature guided by right Reason.
Therefore God suffers himself to be judged of according to this
Rule.18
Stoic Natural law
The Stoics claim the order of the universe is fundamentally
rational. Human rationality, therefore, is a person’s innate
moral compass. To reason and act rationally is to be in harmony
18 Hugo Grotius, The Rights of War and Peace, Vol. 1, Chapter I: “What War is, and what Right is.
with the universe. Violence and vice are consequences of
irrationality and not being in harmony with universal laws.19
They viewed Natural law, as a ruling principle based on
universal reason. They believed that this inherent rationality in
the universe was created by God, whose law applied universally
and equally.20 According to Marcus Aurelius, emperor of Rome and
one of the greatest of the later Roman stoics, “the rational
animal is consequently also a political and social animal” Human
beings, therefore, can acquire virtue only as citizens of the
state and members of society, not in withdrawal from their public
duties and obligations to their fellow citizens. These
obligations, the stoics argued, are known by all human beings on
the basis of reason alone. They are therefore, what the stoics
called natural laws, that is, ethical obligations we to one
another that exist by nature, not by convention, and are
therefore universally valid. They are known and apply in all
societies the world over.21
Cicero
Cicero (106-43 BCE) is an influential Roman jurist who was
heavily influenced by the Stoics in his understanding of natural
19 http://sevenpillarsinstitute.org/morality-101/agency-theory/natural-law
20 http://orias.berkeley.edu/summer2004/summer2004antnatlaw.htm
21 Brian R. Nelson: Western Political Thought: From Socrates to the Age of Ideology, 2nd Edition (New Jersey: Prentice Hall), pp. 74-75
law, which he described by writing that "True law is right reason
in agreement with nature." It is universal ("There will not be
different laws at Rome and at Athens or different laws now and in
the future, but one eternal and unchangeable law will be valid
for all nations and all times"), divinely-inspired, and divinely-
enforced. Law is not necessarily just, but justice is inherent in
nature.22
Hobbes
Thomas Hobbes had a different notion as regards natural law.
Since he is considered as the first great modern theorist, his
viewpoint differs from the classics. Hobbes was born during war
so his understanding of natural law is of negative approach. He
rejects the teleological view of human nature as a false and
dangerous illusion. Instead, he sees human nature as the restless
striving for power after power that has no end and therefore no
happiness or perfection. The rejection of end-directed motion
underlies Hobbes’s revolution in thinking from classical natural
law, and its perfectionist principle of virtue, to modern natural
rights, and its minimalist principle of self-preservation.23
St. Thomas Aquinas
Aquinas bases his doctrine on the natural law, as one would
expect, on his understanding of God and His relation to His
22 http://orias.berkeley.edu/summer2004/summer2004antnatlaw.htm23 http://www.nlnrac.org/earlymodern/hobbes
creation. He grounds his theory of natural law in the notion of
an eternal law in God. In asking whether there is an eternal law,
he begins by stating a general definition of all law. Law is a
dictate of reason from the ruler for the community he rules. This
dictate of reason is first and foremost within the reason or
intellect of the ruler. It is the idea of what should be done to
insure the well-ordered functioning of whatever community the
ruler has care for. It is a fundamental tenet of Aquinas
political theory that rulers rule for the sake of the governed,
like for the good and well-being of those subject to the ruler.
Aquinas concludes that God has in His intellect an idea by which
He governs the world. This Idea, in God, for the governance of
things is the eternal law.24
Natural law: Criticism
Attack
Defense
Philosopher’s quotation
Conclusion
24 http://www.aquinasonline.com/Topics/natlaw.html