CH: - 5 (Natural Theory of Law).

Q1) Write a note on natural theory of law, explain its salient

features and elaborate its distinction (differences) with other laws.
A) INTRODUCTION:-

Natural law theory is a legal theory that recognizes law and morality as deeply
connected. Morality relates to what is right and wrong and what is good and bad. Natural law theorists
believe that human laws are defined by morality, and not by an authority figure, like a king or a
government. Therefore, we humans are guided by our human nature to figure out what the laws are,
and to act in conformity with those laws.

The term 'natural law' is derived from the belief that human morality comes from nature. Everything in
nature has a purpose, including humans. Our purpose, according to natural law theorists, is to live a
good, happy life. Therefore, actions that work against that purpose -- that is, actions that would prevent
a fellow human from living a good, happy life -- are considered 'unnatural', or 'immoral'.

1) NATURAL THEORY OF LAW & MORALITY:-

The concept of morality under the natural law theory is not subjective. This
means that the definition of what is 'right' and what is 'wrong' is the same for everyone, everywhere.

The natural law approach to solving morality dilemmas begins with the basic belief that everyone has
the right to live their life. From there, natural law theorists draw a line between an innocent life and the
life of an 'unjust aggressor.' The natural law theory recognizes the legal and moral concept of self-
defense, which is often used to justify acts of war.

Natural law theory is not always a simple school of thought. It should come as no surprise that the
morals associated with natural law are equally complicated. The idea that the definition of what is 'right'
and what is 'wrong' is the same for 'every person' is sometimes difficult to apply to complex moral
dilemmas.

B) DEFINITONS:-

1) According to Francois Geny:-

“Natural Law comprises a number of principles of reason, interpreted in

accordance with the ideals of Western Liberalism.”

2) According to Le Fur:-

“Le Fur considers the conception of natural law as necessary. It rests on human nature
which demonstrates that man is the creation of a superior will and intelligence.
C) SALIENT FEATURES:-

1) Natural Law and Greece:-

i) Greek thinkers laid the basis of natural law and developed its essential features. Heraclitus laid the
basis of natural law and defined it as:-

“The destiny, order and reason of the world”.

The thought of an order of nature in conformity with law, dawned as clear knowledge upon Grecian
minds. This provided the basis for the Greek school of enlightenment (Sophists), which developed in the
5th century B.C.

The contact between nature and enlightenment in the formation of conceptions; dominated the whole
philosophy of the period. If there is anything universally valid, it is that which is valid by nature for all
men without distinction of people and time.

ii) Socrates reflected upon that element, which was the decisive factor in the culture of his time, he
defined virtue, the fundamental ethical conception, as insight, in turn, as knowledge of the good, the
concept of good with no universal content.

According to Socrates, natural law is that positive law, which needs to be obeyed.

iii) According to Plato,

Gods gave equal measure, sense of justice and of ethical reverence so that in the
struggle of life, they may be able to form permanent unions for mutual preservation.

In the ideal state of Plato, each individual is given that role for which he is the most suitable for; keeping
in view his capacities. His Republic is a constructive attempt to discover the basis of justice. The
administration of justice is given to the philosopher kings whose education and wisdom is such that
there is no necessity to link them up with a higher law.

iv) Aristotle in his Logic, sees the world as a totality comprising the whole nature. Man is a part of nature
in a twofold sense.

On one hand, he is a part of matter,

And one the second hand, part of the creatures of God

Man is also endowed with active reason which distinguishes him from all other parts of nature. He is
capable of forming his will in accordance with the insight of his reason.

v) The Stoics develop this principle into an ethical one. Reason governs the universe in all its parts. Man,
as a part of universal nature, is governed by reason.
Reason orders his faculties in such a way that he can fulfil his true nature. When man lives according to
reason, he live “naturally”. Thus, the law of nature becomes identified with a moral duty.

2) Natural Law and Rome:-

The theory of Stoics exercised great influence upon the Roman jurists and some of them
paid high tribute to “natural law”. In the Roman system, the theory of natural law did not remain
confined to theoretical discussions only. The Romans used natural law to transform their narrow and
rigid system into a cosmopolitan (universal) one.

Natural Law exercised a very constructive influence on Roman Law.

The Roman had 3 divisions of law:-

i) Jus Civile: - Jus Civile or Civil law (related to land. Property, etc.) of Rome, was for Romans only.

ii) Jus Gentium: - On the principles of natural law, the Roman Magistrate applied those rules which were
common with foreign laws to Foreign Citizens. The body of law which grew up in this way was called Jus
Gentium.

iii) Jus Naturale: - Jus Naturale is Latin for natural right, the laws common to all beings.

Roman jurists wondered why the Jus Gentium (applied for foreigners in Rome) & Jus Civile was in
general accepted by all people living in the Empire. Their conclusion was that these laws made sense to
a reasonable person and thus were followed.

3) Natural law and divine providence:-

i) While our main focus will be on the status of the natural law as constituting the principles of practical
rationality, we should consider for a moment at least the importance within Aquinas’s view of the claim
that the natural law is an aspect of divine providence. The fundamental thesis affirmed here by Aquinas
is that the natural law is a participation in the eternal law (ST IaIIae 91, 2).

ii) The eternal law, for Aquinas, is that rational plan by which all creation is ordered (ST IaIIae 91, 1); the
natural law is the way that the human being “participates” in the eternal law (ST IaIIae 91, 2).

While non-rational (non-sensible) beings have a share in the eternal law only by being determined
(inserted) by it as their action non-freely results from their determinate natures, natures the existence
of which results from God’s will in accordance with God’s eternal plan.

Rational beings like us are able to grasp our share in the eternal law and freely act on it (ST IaIIae 91,
2).

iii) It is this feature of the natural law that justifies, on Aquinas’s view, our calling the natural law ‘law.’
For law, as Aquinas defines it (ST IaIIae 90, 4), is a rule of action put into place by one who has care of
the community; and as God has care of the entire universe, God’s choosing to bring into existence,
beings who can act freely and in accordance with principles of reason is enough to justify our thinking
of those principles of reason as law.
D) EXAMPLES OF NATURAL LAW THEORY:-

1) You are a passenger on a ship sailing across the ocean. Suddenly, your ship is overtaken in a
powerful storm. You escape to a lifeboat with 25 other passengers. You notice that four of the
passengers are badly injured, and unlikely to survive for more than a week. You also know that
the lifeboat only has enough food and water to sustain 22 passengers. Some of the other
passengers are considering throwing the four injured passengers overboard in order to save
the other survivors. If you were a natural law theorist, how would you solve this ethical
dilemma?

ANSWER:-

Acts of violence like murder, works against our humanly purpose to live a good
life. Therefore, throwing the injured passengers over-board is an un-natural act and contrary to
natural law. Even if their deaths would ensure the survival of 22 other passengers, the act of
murder is against our human nature.

Natural law forbids killing the injured passengers under any circumstances. A law against
murder is a just law, under the Natural Law Theory.

2) You are a doctor at a busy hospital. Every day you must turn sick patients away because you
don't have enough beds to accommodate them. You treat an elderly patient who is dying of a
painful illness. The illness is terminal and will kill the patient within a few weeks. You know that
high amounts of pain medications will provide your patient with some comfort in his last weeks,
but you also know that the medication will cause the patient to die within a matter of days. If
your patient dies, a bed will be available for another patient; who needs your care; in-order to
survive. What will you do.?

.) Answer:-

Acts of violence like murder, works against our humanly purpose to live a good life.
Therefore, refusing to provide medication to the old patient is an un-natural act and contrary to
natural law. Even if his deaths would ensure the survival of the other patient, the act of murder
is against our human nature.

Natural law forbids killing the old patient under any circumstances. A law against murder is a
just law, under the Natural Law Theory.

E) DIFFERENCE BETWEEN LAW AND MORALITY:-

1) Natural Law and universality:-

Law is universal in character. It is applied to all persons. Morality is individual in nature and differs from
person to person. What I regard as morally good may not be so in the opinion of another person.

That is the reason why moral conduct and opinion differ from individual to individual.
The causes of this difference are customs, social environment, education, experience and training. But
law cannot be differently applied. All must obey it, no matter what their individual differences are.
Really, morality develops by difference or differentiation of individual opinion, but law can exist only by
universality and uniformity of observance.

2) Natural Law and Sanction:-

a) Moral rules are enforced by the conscience of the individual or by the opinion of the people. Law, on
the other hand, is enforced by the coercive authority of the state.

b) Law is a matter of force, morality is a matter of conscience.

c) Laws of the state are in the nature of ’must’, while moral laws are in the form of ’ought’.

d) Moreover, law is based on expediency. It punishes certain actions not because they are immoral but
because it is expedient to punish them. Such acts are morally indifferent. They are neither good nor bad,
but are punished by law because it is socially expedient or necessary to do so.

.) For example:-

It is morally immaterial whether we drive a vehicle on the left or right side of the road. But it is
illegal to drive on the right side, if law has laid down the “Keep left” rule.

The law breaker is punished, even if he pleads that he violated it because he regards it immoral. Here is
a clash between legal command and moral conscience, which do not coincide in this case. In such cases,
most people obey the law and disregard morality, but a few may not and get court punishment. But
such cases also show that law can, morality cannot remain separate and divergent for long.

3) Natural law and Content:-

The province of morality, if it is to remain so, consists in the freedom of the

individual to think and act as he himself judges to be right or good.

Law deals only with the external acts and behavior of the individual. Even among the external acts, it
deals with only those which can be regulated by the eternal authority. There are many acts and several
kinds of behavior which are morally bad but cannot be legally punished.

.) FOR INSTANCE:-

i) Meanness, ingratitude, jealousy and lying are morally bad, but cannot be legally punished, unless they
do not lead to such acts which are legally forbidden.

ii) A man may be a great liar, but law will punish him only when he tells a lie in a law suit before the
court, or publishes a lie as a libel in a newspaper.

iii) Anger is morally bad. But law will punish a hot-tempered person only when he actually injures the life
or limb of another person with whom he is angry.
4) Natural Law and Definiteness:-

As law is universal, it is also definite, precise and certain.

While, Morality is to some extent vague, uncertain and indefinite, because it depends on individual
conscience, taste, training, etc. That is also the reason why morality changes.

What is moral today may not be considered so tomorrow; or what is moral in the eyes of some persons,
may not be so in the eyes of others.

.) For instance, some persons regard monogamy morally good, but others condemn it. But if a law is
passed enjoining monogamous marriages in a country, all citizens will have to obey it even those who
condemned it.

Law is definite because it is compulsive.

F) DISTINCTION WITH OTHER LAWS:-

1) DIFFERENCES WITH LEGAL POSITIVISM:-

Laws have a purpose too: to provide justice. From a natural law perspective, a law that doesn't provide
justice (an unjust law) is considered 'not a law at all.' Therefore, a law that is flawed is one that no one
should follow. In short, any law that is good is moral, and any moral law is good.

Legal positivism is a legal theory that is the opposite of the natural law theory. Legal positivists
believe that a law can be deeply flawed, and yet still be considered a law.

G) CONCLUSION:-

At the end, it is concluded that Natural Law is all about morality, if morality is lost
among us humans, then this world won’t exist. Lack of morality results in the downfall of a nation as
well, as it is in Pakistan or other under developed countries.

It is the responsibility of every reasonable human being to show morality and sincerity in his profession,
whether he is a doctor or a labor; for the welfare of mankind.