UNIVERSITY OF BOTSWANA

DEPARTMENT OF LAW

LAW 432 - JURISPRUDENCE

LECTURER: PROF. KENNETH A. ACHEAMPONG

NATURAL LAW SCHOOL OF JURISPRUDENCE

HANDOUT 2 ON NATURAL LAW

MAIN TRENDS WITHIN THE NATURAL LAW SCHOOL

ST. THOMAS AQUINAS AND NATURAL LAW

JOHN FINNIS (Legal Philosopher): St. Thomas Aquinas was a “paradigm natural
law theorist.” [Natural Law and Natural Rights, 1980] [“Paradigm”: A very clear or
typical example of something.]

CATHOLIC CHURCH AND ST. THOMAS AQUINAS: The Catholic Church found
Aquinas’ doctrines so influential that it officially adopted them when it issued the
ENCYCLICAL AETERNI in 1879. [“Encyclical”: A letter sent by the Pope (the Head of
the Roman Catholic Church) to all his Churches.]

“SUMMA THEOLOGICA”: It is generally agreed that this book is the greatest

exposition of Aquinas’ conceptions of law in general.

GENERAL VIEW OF LAW: Law is nothing but the cosmic order emanating from the
mind of God.

SPECIFIC CONCEPTION OF LAW (“the correct definition of law”): “It is nothing

else than (i) a rational ordering of things (ii) which concern the common good, (iii)
promulgated by whomever is charged with the care of the community.” NATURE
OF LAW: “Law is (i) a rule or measure of action (ii) in virtue of which one is led to
perform certain actions and (iii) restrained from the performance of others.”

DIVISIONS/TYPES OF LAW: (1) Eternal Law (2) Divine Law (3) Natural Law (4)
Human Law.

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1] ETERNAL LAW (LEX AETERNA):

i. DIVINE REASON - This law is Divine Reason known only to God and “the blessed
who see God in His essence.”

ii. GOD’S PLAN - It forms God’s Plan for the universe, which binds both animate
and inanimate entities. [“Animate”: Living, having life; such as plants, animals,
human beings.] [“Inanimate”: Not alive in the way that people, animals and plants
are; e.g., rocks]

iii. PLAN DELIBERATE - This Plan is not accidental but a deliberate act of God
(HOLY BIBLE, Creation, “Genesis” – the beginning or origin of something).

iv. RELEVANCE - This Plan’s relevance lies in the fact that it provides guidance and
direction to human beings in their quest to attain eternal happiness that God had
ordained for them but which they cannot attain through their own human powers
as they lack the perfection embodied in God.

2] DIVINE LAW (LEX DIVINA): This is the law of God revealed to human beings
through scriptures. The Ten Commandments in The Holy Bible, Exodus Chapter
20, are examples of this law. They include “Do not commit murder”, “Do not
commit adultery”, “Do not steal”, and “Do not accuse anyone falsely.”

3] NATURAL LAW (LEX NATURALIS): (i) The “participation in the eternal law by
rational creatures is called the natural law.” (ii) This participation takes the form
of human beings deriving from divine providence (the eternal law) certain
inclinations to those actions and aims which are proper to them; this includes
seeking to act according to reason. (iii) General principle of natural law – Natural
law is the same for all men (human beings) since all are rational and “it is proper
for man to be inclined to act according to reason.” (iv) This principle is general as
with some people habit, custom or temperament may distort the will to do right
and the awareness of what is right (for example, in cases of genocide as
happened in Nazi Germany, Bosnia and Rwanda).

THE PRECEPTS OF NATURAL LAW (THREE) [“Precept”: A rule about how to

behave or what to think; Guiding Principles] – [1] Natural law contains all that

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makes for the preservation of human life and all that is opposed to its dissolution.
This precept arises from the inclination of human beings to seek their
preservation according to their nature. Issues that form part of this precept are
contraception, abortion [PARAGUAY – 11-Year old girl who was raped not allowed
to have an abortion; gave birth to a child in August 2015], death penalty and
euthanasia. [2] Human beings have an inclination, which they share with animals,
to achieve certain specific ends. This includes those instincts “which nature has
taught all animals”, such as sexual relationship, taking care of offspring (feeding,
clothing, shelter) and self-defence. [3] There is an inclination in human beings,
which is attributable to their rational nature and which belongs to them alone as
human beings, to do good. This inclination propels human beings to search to
know the truth about God and to live in society.

4] HUMAN LAW (LEX HUMANA): (i) This law is, also, known as Positive Law. (ii)
Positive law is subordinate to Natural law as it derives its validity from natural
law. (iii) If human law is in conflict with natural law “it is no longer legal but rather
a corruption of law.”

NECESSITY FOR HUMAN (POSITIVE) LAWS: (i) They are necessary to ensure
human beings a life of peace and virtue. [“Virtue”: Behaviour or attitudes that
show high moral standards.] (ii) Natural law does not offer solutions to most
issues or problems of day-to-day life in society. For example, what achieves the
natural law precept of the preservation of human life is a matter properly for
human or positive law.

ATTRIBUTES OF A JUST HUMAN LAW: (i) It must be morally good or virtuous. (ii)
It must be necessary (in terms of the needs of the society in which and for which
it is enacted or promulgated). (iii) It must be useful (i.e., be beneficial or serve a
desired end or goal). (iv) It must be clear (i.e., easy to understand and not causing
any confusion). (v) It must be for the common good (i.e., serve the general or
collective interest or welfare of society.

NATURE OF AN UNJUST HUMAN LAW: (i) It is a perversion of law. [“Perversion”:

The act of changing something that is good or right into something that is bad or
wrong.] (ii) It does not bind one’s conscience. (iii) Unjust human laws should not
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be obeyed if they contradict divine law, i.e., the law of God revealed to human
beings through the Scriptures. (iv) OTHER UNJUST HUMAN LAWS - i.e., those that
do not contradict divine law, do not also bind one’s conscience. However, they
should, on recommendation, be obeyed in spite of their injustice for the sake of
affirming respect for the legal system as a whole. [Effect – Aquinas gave
preference to social stability than the issue whether a law is just or unjust.]

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