Natural Law Theory

NATURAL LAW THEORY Maria Josefina R. Alfonso (1-I) Eunika Raiza V. Fernando (1-G) Angela Paminter (1-I)

 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 (De Leon, 2008).  It refers to a type of moral theory, and of legal theory, but the core claims of the two kinds of theory are logically independent (Himma, 2008).  Natural law is ever present and binding on all men everywhere and at all times. There is in every man a basic understanding of right and wrong based on the fundamental standard or criterion of good and evil.

Concepts and Precepts Behind the The precepts of natural law are righteousness, justice, equity and fairness. Precepts are similar to a writ. It is a rule or conduct imposing a particular standard of action or conduct  They have been put to use in the legal order in order to justify, oppose, regulate, or interpret human acts and conduct.  They are considered as continuing, protective principles that hold for every human society notwithstanding differences in culture, dissimilar levels of intelligence and varying ethical conception of expressing them outwardly (Pascual, 1983). 

Concepts and Precepts Behind the Natural Law  Natural

law theory holds that law's “source-based character”—its dependence upon social facts such as legislation, custom or judicially established precedents — is a fundamental and primary in “law's to advance element Classic and leadingcapacity contemporary texts the of common to secure or to natural good, law theory treathuman law rights, as morally govern with integrity” (cf. Green 2003). understanding it as a law normally  problematic, Natural law theories all understand as a indispensable instrument greatof,good but one remedy against the greatofevils on the one that readily becomes an instrument of other great side evil side anarchy (lawlessness), and on the unless itsAnd authors and vigilantly make it tyranny. one ofsteadily tyranny's characteristic forms good recognizing of and law fulfilling is theby co-optation as a their maskmoral for fundamentally lawless decisions cloaked in the

Concepts and Precepts Behind the Natural Law  What

does the mainstream of natural law theory intend by using the word “natural” in that name theory?accurate answer is “of reason,” as for Thethe shortest in “the law of reason” or “the requirements of  reason.” Aquinas isaxiom: particularly clearis and explicit A methodological X's nature understood inin this context, “natural” is and predicated of  that by understanding X'sof capacities, which are Thus, this context, “natural” “rational” something (say, a law, or a virtue) only when and understood byof understanding their actuations, and its that cognates is no confusion, but because which it ismere predicated is in line which arein understood understanding their with reason, practical byreason, or practical grounded a sophisticated distinction between reason's objects. requirements. But objects of chosen actsorder are the ontology andtheepistemology: in the of intelligible goods (aspects for of us human being, what intrinsic is good and reasonable is a flourishing)ofwhich directed to byour practical resultant whatweisarefoundational, given nature (Green, 2003).

Two Kinds of Natural Law Theory  Theory

of morality FIRST: Moral have what is sometimes SECOND: Thepropositions core of natural law moral theory iscalled the  Natural law theory of law objective standing in the sense that such propositions are claim that standards of morality are in some sense derived is no between notion law the bearers of clean objective truth-value; that is, moral Some norms are authoritative inthe virtue of oftheir from,There or entailed by, division the nature of the world and the propositions can be true is orno false. Though moral and the notion of objectively morality. Though there are different moral content, even when there convention that nature of human beings. St. Thomas Aquinas, for example, objectivism is sometimes equated with moral realism versions ofthe natural lawa nature theory, all human subscribe to the identifies rational of beings as thesis that makes moral merit criterion of legal validity. Theis (Moore, 1992), the relationship between the two theories that there aremoral at least some lawsand that dependoffor their which defines law: "the rule measure human idea that the concepts of law and morality intersect controversial. "authority" not on which some pre-existing human convention, acts is the reason, is the first principle of human in some way is called the Overlap Thesis. but on the logical relationship in which they stand to

Two Kinds of Natural Law Theory  One

could accept a natural law theory of law without holding a natural law theory of morality.  One could hold that the conceptual point of law is, in part, to reproduce the demands of morality, but also hold a form of ethical subjectivism (or relativism).  For this reason, natural law theory of law is logically independent of natural law theory of morality.

Conceptual Naturalism The Project of Conceptual Jurisprudence  Its

principal objective has traditionally been to provide an account of what distinguishes law as a system of norms from other systems of norms, such as ethical norms. Conceptual jurisprudence or naturejurisprudence which is common to seeks The "the task essence of conceptual is to laws that are soanalysis called" 1995, all To clarify the conceptual in(Austin law, Brian Bix provide a role set ofproperly of necessary and sufficient 11). (1995) distinguishes number of different that conditions for athe existence of purposes law that can be served by conceptual claims: distinguishes law from non-law in every possible (1) to track linguistic usage; world. (2) to stipulate meanings; (3) to explain what is important or essential about a class of objects; and (4) to establish an evaluative test for the concept-

CONCEPTUAL NATURALISM THE PROJECT OF CONCEPTUAL JURISPRUDENCE  Conceptual

analysis of law remains an important, if controversial, project in contemporary legal theory.  Conceptual theories of law have traditionally been characterized in terms of their posture towards the Overlap Thesis.  Thus, conceptual theories of law have traditionally been divided into two main categories:  those

like natural law legal theory that affirm there is a conceptual relation between law; and  morality and those like legal positivism that deny such a relation.

Conceptual Naturalism Classical Natural Law Theory  All forms of natural law theory subscribe to the Overlap Thesis, which asserts that there is some kind of non-conventional relation between law and morality. According to this view, then, the  The natural law is comprised of those precepts of notion of law cannot be fully articulated without the eternal law that govern some reference to moral notions.the behavior of will. The first  beings Here itpossessing is worth reason noting and thatfree Aquinas holds a precept of the natural law, according togood Aquinas, natural law theory of morality: what is and is theaccording somewhattovacuous imperative do good evil, Aquinas, is derivedtofrom the and avoidnature evil. of human beings. Good and evil rational are thus both objective and universal.

Conceptual Naturalism Classical Natural Law Theory  St.

Thomas Aquinas: a human law (that which is promulgated by human beings) is valid only insofar as its content conforms to the content of the natural law:

 To

"[E]very human law has just so much of the nature of law as is

paraphrase famous remark, derived from the law of Augustine's nature. But if in any point it deflects froman the law of nature, it isisnoreally longer a no law law but a perversion unjust law at all. of law" (ST I-II, Q.95, A.II).

Conceptual Naturalism Classical Natural Law Theory A

norm that does not conform to the natural law cannot be legally valid  As William Blackstone describes the thesis: "This law of nature, being co-equal with mankind and  Blackstone articulates the two claims that dictated by God himself, is of course superior in obligation to constitute the theoretical core of conceptual any other. It is binding over all the globe, in all countries, and naturalism: 1) there canof be no legally validto at all times: no human laws are any validity, if contrary standards conflict with theallnatural law; this; and such that of them as are valid derive their force, and andtheir 2) authority, all valid mediately laws derive what force all or immediately, fromand this authority original" (1979,they 41). have from the natural law.

Conceptual Naturalism Classical Natural Law Theory It should be noted that classical naturalism is consistent with allowing a substantial role to human beings in the manufacture of law.  While the classical naturalist seems committed to the claim that the law necessarily incorporates all moral principles, this claim does not imply that the law is exhausted by the set of moral principles. There will still be coordination problems (e.g., which side of the road to drive on) that can be resolved in any number of ways consistent with the set of moral principles.  Thus, the classical naturalist does not deny that human beings have considerable discretion in creating natural law. 

Conceptual Naturalism Classical Natural Law Theory Another frequently expressed worry is that conceptual naturalism undermines the possibility of moral criticism of the law; inasmuch as conformity with natural law is a necessary condition for legal validity, all valid law is, by definition, morally just. Thus, on this line of reasoning, the legal validity of a norm necessarily entails its moral justice.  Given that the norm being enforced by law is unjust, it follows, according to conceptual naturalism, that it is not legally valid. Thus, the state commits wrong by enforcing that norm against private citizens.  The project motivating conceptual jurisprudence, then, is to articulate the concept of law in a way that accounts for these pre-existing social practices. 

Conceptual Naturalism Classical Natural Law Theory (A different perspective)  Bix rejects the interpretation of Aquinas and Blackstone as conceptual naturalists, arguing instead that the claim that an unjust law is not a law should not be taken literally:  A more reasonable interpretation of statements like "an unjust law is no law at all" is that unjust laws are not laws "in the fullest sense."  Thus, to say that an unjust law is "not really law" may only be to point out that it does not carry the same moral force or offer the same reasons for action as laws consistent with "higher law" (Bix 1996, 226).

Philosophers in the History of Natural Law    Heraclitus:

nature.

 Originated

Natural Law and the law of

from Ancient Greece  Referred as the rational harmony and order of divergent things and events.  It is unwritten law pervading and ruling the whole of nature without which the cosmos would be plunged into chaos.  The beginning of the concept of natural law was originally intertwined with the notion of the law of nature.

Philosophers in the History of Natural Law  Plato

and Aristotle: A discipline to which human conduct must conform to.  The

first philosophical foundation to natural law, by regarding it as a higher law.  “Ought” is the only perfect or natural reality and that the “Is” represents merely the imperfect application of the “Ought”.  Natural justice, that which is absolute and universal, and legal justice, that which is indifferent and relative  First thinkers to regard the natural law as a discipline

Philosophers in the History of Natural Law 

Stoics: “Live consistently with nature”. 



Human conduct and activity must be brought in agreement with order and stability, that is to say, with the natural law.

Epictetus: Natural law as the moral nature of man. 

Greek Stoic philosopher

He developed his idea on the basis of materialism. He attached the concept of natural law to the moral nature of man, thereby becoming man’s participation in the divine law.  He believed real good is innate in humans, but the only thing to be feared, is the false and selfish traits of one’s being that tend to frustrate or retard the fulfillment of the natural.  

Philosophers in the History of Natural Law  St.

Paul: Conscience and Natural Law

 He

was an apostle and a theologian.  The conscience endorses the existence of such law, for there is something which condemns or commends their actions.  It was his assessment of the enlightened sense of right and wrong that cleared the Stoic doctrine of its impersonal abstractions and gave it the conception as a personal discipline.

Philosophers in the History of Natural Law  St.

Augustine: Natural Good Faith  Natural good faith is present in all men, not excluding the perverted and depraved, and without regard to race, creed and station in life. He

concludes that no man can really plead ignorance of the natural law because his natural good faith is never silenced.