NATURAL LAW

24 OCTOBER 2023
SETTING THE AGENDA

• Normative-Derive an “ought” from “is”

• Facts about the world or nature determine what ought to be done or not done

• Raymond Wacks (Philosophy of Law-A Very Short Introduction, OUP, 2006)18

• Law consists of a series of propositions derived from nature through a process of

reasoning

• Syllogism
• Marriage is between a man and woman-is
• X is a man and Y is a woman-is
• Therefore, X and Y ought to marry-ought
INTRODUCTION

• Law is based on universal moral principals

inherent in nature (physical world)
discoverable through human reason (natural
faculties/ human conscience)
• Rules & principles whose sources or validity
is a supreme being not political or worldly
authority
INTRODUCTION

• Recognise the existence (and the need for)

man-made law, but regard this as inferior to
natural law
• Key ideas:
• (i) Discoverable by reason
• a priori knowledge-that is, knowledge gained
before sense experience and does not depend on
evidence as provided by the senses
INTRODUCTION

• CF empirical knowledge
• Knowledge based on demonstrable, objective facts determined
through observation and/or experimentation
• This is evidence provided by the senses
• Emphasize the importance of a posteriori knowledge -depends on
evidence provided by the senses
INTRODUCTION

• Key ideas

•(ii) Source is supreme being

•(iii) eternal and unchanging
•(iv)Has a standing as a “higher
law”
INTRODUCTION

• At the heart of debates around:

• Slavery
• Colonialism
• Human rights-Racism and other forms of
discrimination
• Feminization of men
• Population control
• Gay relationships
• Prostitution
• Cloning
• Surrogacy
• Bigamy
• Legalization of cannabis
• Euthanasia
• Banning of mini-skirts
• Abortion
• Covid-19
TWO MAIN STRANDS OF NL

• Theological School
• Theological theories rely on allusion to God, the
Holy Books and the prophets, in arguing for the
existence or validity of natural law
• Holds that created universe consists not only of
material substance, but also a moral order
• God is the author of this moral order, or “natural
law”
TWO MAIN STRANDS OF NL

• Secular School
• Depend on human reason and argue that that natural
law exists in rational human beings who are created by
God
• Maintained the idea of transcendent (beyond human
abilities) eternal moral law
• Moral principles are understood through development
of reason
• Rejected God as creator of law; rather, moral law is
simply part of human nature
EVOLUTION OF NL

• Early Origins
• Classical Natural Law
• Stoics-Plato, Aristotle, Socrates
• Christianity-St Aquinas

• Natural Law in Political philosophy

• Thomas Hobbes-The Leviathan
• Rousseau
• John Locke
• Contemporary Natural Law
• Fall and Rise of NL
EARLY ORIGINS

• In pre-modern societies, there was a union of

secular and religious beliefs.
• Societies believed that they were ruled “invisible
forces”- gods or spirits.
• Against this backdrop grew the belief that there
was a power beyond human power, directing the
affairs of the human society with certain rules,
principles or laws
CLASSICAL NATURAL LAW

• Aristotle
▫ The word “natural” in natural law refers to the
following idea:
▫ Man is part of nature. Within nature man
has a nature. His nature inclines him
towards certain ends – to procreate
children, to protect his family, to protect
his survival.To seek such ends is natural to
him
CLASSICAL NATURAL LAW

• According to him, man is a part of nature in 2 ways

• he is the part of the creatures of the God
• he possesses insight and reason by which he can shape his will

• Using reason, man can discover the eternal principle of

justice
• Supported slavery saying” slaves must accept their lot for
slavery was a ‘natural’ institution
CLASSICAL -ARISTOTLE

• He says that there is a general idea of just and defined justice

as “treating equals equally and unequals unequally”
• There are several ways that a law might be unjust.
• It might prohibit or curtail conduct that should be
permitted
• It might permit conduct that should be prohibited
• It might apply or enforce unfairly an otherwise
unobjectionable law
CLASSICAL - MARCUS TULLIUS
CICERO
• True law is:
• right reason in agreement with nature;
• of universal application
• unchanging and everlasting…
• there will be one master and ruler, that is, God,
over us all, for he is the author of this law, its
promulgator, and its enforcing judge
▫
CLASSICAL NATURAL LAW

• Thomas Aquinas
• He defined law as ‘an ordinance of reason for the common good
made by him who has the care of the community and promulgated’
• Social organization and state are natural phenomena
• Natural Law emanates from ‘reason’ and is applied by human beings
to govern their affairs and relations
NATURAL LAW IN POLITICAL
PHILOSOPHY
• Around 15-17 centuries
• Advances in science and art and emergence of new
areas of knowledge
• Emergence of the greatest thinkers, authors, statesmen,
scientists and artists
• Galileo- astronomist
• Shakespeare-bard
• Michelangelo-painter
NATURAL LAW IN POLITICAL
PHILOSOPHY
• Reason must not be theoretical based but practical based
• Emergence of natural rights of man & social contract
• Some one has to give the sovereign power to preserve the
rights of the individuals
• Social contract-hypothetical compact between rulers and ruled
defining rights, duties and obligations of each
NATURAL LAW IN POLITICAL
PHILOSOPHY
• Thomas Hobbes
• Before ‘social contract’, man lived in chaotic condition of constant fear
• life in the state of nature was “solitary, poor, nasty, brutish and short”
• For self-protection and avoid misery and pain, men voluntarily entered
into contract and surrendered their freedom to some mightiest authority
that could protect their lives and property
NATURAL LAW IN POLITICAL
PHILOSOPHY
• John Locke
• Life before social contract was bliss
• Major defect-insufficient protection of property
• “social contract” for protection of property
• surrender part of rights to allow maintain order
and to enforce the law of nature
• The purpose of government and law is to
uphold and protect the Natural Rights
NATURAL LAW IN POLITICAL
PHILOSOPHY
• Law are valid and binding when they uphold and protect the
Natural Rights
• Government that fails to uphold and protect the Natural
Rights has no validity and may be overthrown
• Supported a constitutionally limited government
NATURAL LAW IN POLITICAL
PHILOSOPHY
• This natural rights theory provided a philosophical basis for
both the American and French revolutions.
• Thomas Jefferson used the natural law theory to justify his
trinity of "inalienable rights" which were stated in the
United States Declaration of Independence.
NATURAL LAW IN POLITICAL PHILOSOPHY
• Jean Rousseau
• ‘social contract’ is an agreement between an individual and the
community by which the individual becomes part of the “general will”
• Individuals surrender their freedom and equality to the community
as a whole which he called the ‘general will”
• General will is popular sovereignty –which determines what is good
for the whole society
NATURAL LAW IN POLITICAL
PHILOSOPHY
• Therefore, it is the duty of every individual to obey the ‘general will’
because in doing so he directly obeys his own will

• The existence of the State is for the protection of freedom

and equality
• The State and the laws made by it both are subject to
‘general will’ and if the government and laws do not
conform to ‘general will’, they would be discarded
DECLINE OF NL

• Towards the end of the 18th century

• Emergence of science-insisting on reason or empiricism
• Rise of positivism
• Bentham and Austin rejected Natural Law on the ground that it was
ambiguous and misleading
• Divorced law from morality

• Non-cognitivism in ethics (Rejection of claim that “ought”

can be derived from “is”)
DECLINE OF NL

• Reason’ or rationalism was the spirit of the 18th century

thought

• There are no absolute and unchangeable principles

• A priori methods of the natural law philosophers were

unacceptable in the emerging age of science

• The idea social contract was a myth

REVIVAL OF NL

• Horrors of WW2-genocide, Nuremberg

trials, crimes against humanity
• Scientific excess-war weapons
• International instruments-Charter of the
UN, Universal declaration of human
rights, etc.