NATURAL LAW THEORY

Philosophy of Law and Legal Theory

EH407

Abucejo, Queenie Mae

Alvarico, Danah

Calumba, Isaiah

Cane, Jebb Lynus

Dela Pena, Jessie Marie

Dungog, Helen Camille

Lim, Hadjie
 NATURAL LAW THEORY

The unwritten body of universal moral principles that underlie the ethical and legal
norms by which human conduct is sometimes evaluated and governed. Natural law is
often contrasted with positive law, which consists of the written rules and regulations
enacted by government. The term natural law is derived from the Roman term jus
naturale. Adherents to natural law philosophy are known as naturalists.

Naturalists believe that natural law principles are an inherent part of nature and exist
regardless of whether government recognizes or enforces them. Naturalists further
believe that governments must incorporate natural law principles into their legal systems
before justice can be achieved. There are three schools of natural law theory: divine
natural law, secular natural law, and historical natural law.

Divine natural law represents the system of principles believed to have been revealed or
inspired by God or some other supreme and supernatural being. These divine principles
are typically reflected by authoritative religious writings such as Scripture. Secular
natural law represents the system of principles derived from the physical, biological, and
behavioral laws of nature as perceived by the human intellect and elaborated through
reason. Historical natural law represents the system of principles that has evolved over
time through the slow accretion of custom, tradition, and experience. Each school of
natural law influenced the Founding Fathers during the nascent years of U.S. law in the
eighteenth century and continue to influence the decision-making process of state and
federal courts today.

The term “natural law” is ambiguous. It refers to a type of moral theory, as well as to a
type of legal theory, but the core claims of the two kinds of theory are logically
independent. It does not refer to the laws of nature , the laws that science aims to
describe. According to natural law moral theory, the moral standards that govern human
behavior are, in some sense, objectively derived from the nature of human beings and
the nature of the world. While being logically independent of natural law legal theory, the
two theories intersect. However, the majority of the article will focus on natural law legal
theory.

SCOPE OF NATURAL LAW

When we speak of the concept of Natural Law, we are not speaking of something new.
It goes so far back that we cannot ascertain its exact beginnings. It can be traced back
through the writings of the early American jurists (James Wilson, Works, Vol. 1, Part 1;
Chancellor Kent in Wigktman v. Wightman, 4 Johnson's Ch. 343 (N.Y. 1820)), through
the English writers (Blackstone, Commentaries Introd. Sec. 2, p. 40, Edmund Burke on
the East India Bill), through the Scholastic writers (St. Thomas Aquinas, 10 Sent, 32-1-
1, Suarez, De Legibus), through the Latin writers (Cicero, Laws 1, VI, 18; Pandects
Book 1), and back through the Greek writers (Aristotle Rhetoric I, 1373 b; Politics I, a;
Sophocles, Antigone). Indeed, Antigone in Sophocles' great play proclaimed the
supremacy of the unwritten law and died for it without regret.

When John McAniff referred to the history and origin of Natural Law, he did not suggest
that those who uphold the Natural Law have held the field alone. On the contrary, there
have been and are many who contend that there is no such thing as Natural Law, and
that it has no proper place in our Jurisprudence. There have been others who have
gravely misunderstood the Natural Law and by misunderstanding it have denied to it its
rightful place in our Jurisprudence. We are concerned here today, however, not
primarily with refutation, but with a positive approach.

We first note that the Natural Law is a rule of action. That means that it acts as a guide
to right conduct in the free actions of men. It is a mandatory rule of action. That means
that it is binding on all persons and requires them to obey it.

It is established and promulgated. That means that the rule of action has been
determined by God and has been made known to man through the medium of man's
own intellect. Thus it is applicable to all men since it is based on man as a creature
composed of body and soul with intellect and will.

Difference between Legal Positivism and Natural Law Theory

We’re now at a point where the distinction between legal positivism and natural law
theory can be made with a fair amount of clarity and with enough content to be
something other than an empty formula. One way to put the matter, as Hart suggests, is
that natural law theorists believe that there is a necessary (or conceptual) connection
between morality and law, while legal positivists do not (Hart’s Concept, 155). 

What is the nature of this necessary connection with holds (or does not hold) between
law and morality? Here’s a better go at it:

Natural Law Theory (NLT): It is not possible that L is a law if L is deeply flawed from a
moral perspective (Hart’s Concept, 156).

Legal Positivism (LP): It is possible that L is a law (even) if L is deeply flawed from a
moral perspective.
St. Thomas Aquinas (Summa Theologica)

The Summa Theologica, as its title indicates, is a “theological summary.” It seeks

to describe the relationship between God and man and to explain how man’s
reconciliation with the Divine is made possible at all through Christ. To this end, Aquinas
cites proofs for the existence of God and outlines the activities and nature of God.
Approximately one-half of the Summa Theologica then examines the nature and
purpose of man. Finally, Aquinas devotes his attention to the nature of Christ and the
role of the Sacraments in effecting a bridge between God and man.

Natural Law

Law, being a rule and measure, can be in a person in two ways: in one way, as in
him that rules and measures; in another way, as in that which is ruled and measured,
since a thing is ruled and measured, in so far as it partakes of the rule or measure.

According to Thomas, human nature is perfected or fully realized by harmonious

and habitual excellence in the exercise of its intrinsic capacities and powers (e.g.
cognitive, creative, affective, productive). Highest among these capacities—the capacity
with the most potential to enrich and enlarge human nature and so to realize it most
completely—is the human intellect, with its power to come to some understanding of the
nature of whatever exists.

Law according to Thomas is an extrinsic source or principle of human perfection

or full human development. God, he states, “instructs us by means of His Law.”: It is “an
ordinance of reason for the common good, made by him who has care of the
community, and promulgated.”

Thomas maintains that we have a law of God’s making that is co-eternal with His
own nature. This is the Eternal Law (lex aeterna) through which the divine intellect
creatively designs and directs all creatures to a common end (the common end of the
universe), promulgating in time this eternal ordinance of His reason by the very act of
creating beings and endowing them with spontaneous natural inclinations to move
toward their own perfection in the context of the universe and its overall and unified
perfection.

Since human beings have each their own intellect and will, so their spontaneous
inclination and subsequent movement toward that full and complete good is brought
about (or not, since it can be resisted or rejected) by conscious ratification and
cooperation, that is, knowingly and willingly. Thus, in the human world we have the
Eternal Law as received and understood from the inside, as it were, and observed only
conditionally: when humans correctly understand, desire, and act for the goods of
human nature they are freely enacting observance to the Eternal Law.
 Natural law for Thomas then is a sharing from within (or participation) of the
Eternal Law, but not, Thomas insists, something otherwise different from that first and
highest law in the mind of God: “the natural law is nothing else than the rational
creature’s participation of the eternal law.”

The natural law, according to Aquinas, has certain basic and self-evident
precepts or dictates, dictates knowable to any human with a properly functioning
intellect and a modicum of experience of the world.

This natural law instantiating practical reasoning about what is best for humans
by nature (and therefore about what is ordained by God) spontaneously and
appropriately results, as Thomas observes, in the construction of man-made laws.

MORALITY & LAW BY ST. THOMAS AQUINAS

St Thomas Aquinas called such law (without moral content) a “perversion of law”. 
Natural law theory asserts that there is an essential connection between law and
morality. This view is frequently summarised by the maxim: “an unjust law is not a true
law”.  It follows that if it is not true law we need not obey it.
 
Man made law still exists, even if Natural law holds it to be inferior
In 1534 Thomas More believed that he was bound be a higher law (God's law) to a
greater extent than the man-made law and was executed.  More refused to accept that
Henry VIII and Parliament could usurp papal authority by declaring the king the head of
the Church.

In the context that Thomas Aquinas provides for distinguishing between morality and
legality is quite helpful in determining when to make law and even what kinds of law to
make.
Aquinas’ celebrated doctrine of natural law no doubt plays a central role in his moral
and political teaching. According to Aquinas, everything in the terrestrial world is created
by God and endowed with a certain nature that defines what each sort of being is in its
essence. A thing’s nature is detectable not only in its external appearance, but also and
more importantly through the natural inclinations which guide it to behave in conformity
with the particular nature it has.
As the “rule and measure” of human behavior, the natural law provides the only possible
basis for morality and politics. Simply stated, the natural law guides human beings
through their fundamental inclinations toward the natural perfection that God, the author
of the natural law, intends for them. As we have seen, however, the human subjugation
to the eternal law (called the natural law) is always concomitant with a certain
awareness the human subject has of the law binding him. This awareness is crucial in
Aquinas’ view. Since one of the essential components of law is to be promulgated, the
natural law would lose its legal character if human beings did not have the principles of
that law instilled in their minds (ST, I-II, 90.4 ad 1).
John Finnis’ Main Propositions on Natural Law & Natural Rights

1. John Finnis defines natural law as “the set of principles of practical

reasonableness in ordering human life and human community . . . .”
2. Finnis argues that the principles of natural law are “traced out not only in moral
philosophy or ethics and ‘individual’ conduct, but also in political philosophy and
jurisprudence, in political action, adjudication, and the life of the citizen.”He
further asserts that “the principles of natural law explain the obligatory force . . .
of positive laws, even when those laws cannot be deduced from [the principles of
natural law].”
3. “The rationale of natural law theory is to establish what is really good for human
persons.”
4. Just like Aristotle he asked what would constitute a valuable worthwhile life. He
answered it with the 7 basic goods which are:

 Life = the drive for self-preservation; it includes every aspect of life which
puts a human being in good shape for self-determination; it includes bodily
health, freedom from pain; also the transmission of life by procreation.
 Knowledge = it is desirable for its own sake – it Is good to be well informed
instead of being ignorant
 Sociability = peace and harmony amongst men at its minimum, in its
strongest form it is the flowering of full friendship. Acting in the of one’s
friends or for the sake of a friend.
 Play = recreation, enjoyment, fun; engaging in a performance for no other
reason that the performance itself
 Aesthetic experience = an appreciation of beauty in art or nature
 Practical reasonableness = using one’s intelligence to solve problems of
deciding what to do, how to live, and shaping one’s character
 Religion = our concern about an order of things that transcends or individual
interest

Finnis thinks that these 7 ‘basic goods’ are universal and that they apply to all humans
at all times. To flourish as human beings we need all of these basic goods.

The second-to-last one on the list is “practical reasonableness”. Finnis explains

more about that. He says that there are 9 basic requirements of practical
reasonableness:
1. The good of “practical reasonableness” structures the pursuit of goods
generally. It shapes our participation in the other goods. It helps us to choose
what to do, what projects to commit our time to.
2. A coherent plan of life.
3. No arbitrary preference amongst values.
4. No arbitrary preference amongst persons.
5. One should be both open-minded and committed to one’s projects.
6. The relevance of consequences: actions should be reasonably efficient.
7. Respect for every basic value in every act.
8. The requirements of the common good – one should act to advance the
interests of the community
9. Following one’s conscience – we shouldn’t go against our inner conscience
Reference:

John E. McAnif, The Natural Law — Its Nature, Scope and Sanction, 1953
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