natural law theory

1. JURISPRUDENCE
Lecture 5

2. In this lecture..
■ Natural law theory – Its definition
■ characteristics
■ Evolution of natural law theory
■ Use of natural law in major legal systems.…

3. definition..
■ Natural law theory has an important place in law as well as
politics, religion and ethics.
■ It has been used as a tool to protect public from injustice,
tyranny and authoritarian rule.
■ Blackstone: “natural being co-existant with mankind and
emenating from God, himself, is superior to all other laws. It
is binding over all the countries at all times and no man-
made law will be valid if it is contrary to the law of nature”
■ It is born out of the never ending search for absolute
justice. It is not simply a theory but, it has practical value
and has played pivotal roles in transforming societies
■ International law is derived from Natural law philosophy.

4. definition..
■ Natural law theory has been defined by many scholar
across time. Those definitions depend largely on the use
of or natural law during that particular time and also, the
capacity of the theory to adapt to meet new challenges
of the transient society.
■ The scholars of this school mainly held the view that, law
is inherent in the nature of man, and is not depended on
legislation, custom or any other formalization.

5. definition..
■ Dias and Hughes: Natural law is the law validated from
inherent values, different from the law given by state,
through it organic properties.
■ Cohen: it is not a body of enacted law, enforced by courts.
But it is infact a way of looking at things, and a humanistic
approach of judges and jurists. It is formed with ideas such
as morality, justice, reason, good conduct, freedom,
equality, liberty, ethics and so on.
■ An academic meaning would be, it is those rules and
principles which are supposed to have originated from some
supreme source other than any political or worldly authority.
Some believe that it has divine origin, while other say it’s a
product of reason.

6. characteristics
1. It is a priori method: meaning it accepts, ideas without
any enquiry or observation in relation to the subject
matter.
2. It is based on moral ideals which has universal value
across the places and times.
3. It is used to defend change or maintain status quo in a
society.
4. The concept of Rule of law and due process is based on
natural law philosophy.

7. Other concepts and Natural
law
■ Natural law theory does not separate law from what is
and what it ought to be, as in positive law.
■ It is believed that notion of justice, right and reason is
drawn from nature and thus have made elements of
natural law.
1. It is eternal and unalterable.
2. It is not made by man and is not discovered by him.
While other theories believes that law emenate from
some human institution such as, convention or state
organs.
3. It is not enforced by enforcement authorities. But other
forms of laws are enforced by such authorities

8. Other concepts and Natural
law
4. It has no formal written code and also there is no precise
penalty for its violation.
5. The central idea of natural law is moral principles which
depend on the nature of the universe and which can be
discovered by natural reason. And other laws have to be in
conformity with those reasons.

9. Evolution –Ancient Period
■ Its content have changed across time, depend on its purpose
and it practical applicability.
■ During the Ancient period we see that, several greeco-roman
scholar has spoken of natural law in their teachings.
1. Heraclitus (530-470BC)
This is the first philosopher who pointed out the three main
characteristics of law of nature; destiny, order and reason. The
instability in greek city states made people believe that, law
was to serve the needs of politicians. As philosophers found a
need for some irrefutable principles to ensure prevalence of
peace and security. This gave birth to the idea of law aimed at
morality and righteos conduct in human life.

10. Evolution –Ancient Period
■ 2. Scorates (470-399BC)
Regarded as father of anciet philosophy, he argued the
existence or a natural moral law. He was of the view that the
natural huma insight gave man the ability to know good and
bad. He believed that Justice is in two forms. He was of the
view that laws which are proper are only laws made in
accordance with the principles of natural law and supported
by human reasoning.

11. Evolution –Ancient Period
3. Aristotle (384-322BC): He defined natural law as reason
unaffected by desires. These reason was principles of justice
and morality which have universal validity. He was of the
view that, positive law should be in conformity with natural
law. But then again, he failed to say, positive law devoid of
natural law is invalid.

12. Evolution –Ancient Period
■ Roman system and natural law: roman system of law was
amended in time to accommodate the theoretical
concept of natural law laid down by greek scholars.
(read page 104 – 105)

13. Evolution – Medieval period
■ 12th centuary mid-14th century is medieval age.
■ During this time, the church reigned supreme over
Europe.
■ Christianity's validity y was established through natural
law theory. The view was that divine law was superior to
all the laws, and that all laws were either divine or
human.
■ It was argued that divine laws were based on nature and
human laws were based on custom.
■ According to the fathers, all laws were imposed from
above. And this view prevailed until the raise of
humanism.

14. Evolution – Medieval period
■ Natural law theory during this time had 4 essentials
1. Institution of slavery and property and state are evil
desires as they are not natural but they are a necessity.
2. Law is a the supreme authority which binds people.
3. Human activities had two facets; worldy and godly.
4. The lega authority in a developed society was dereived
from the view that state and law were a gift of the
people who agreed to subdue themselves to their
authority.

15. Evolution – Medieval period
■ St. Thomas Aquinas
- He believed that social organization and state are a natural
phenomenon.
- Man is subjected to basic impluses such as, self
preservation, reproduction, children etc. to this end he
believed that the percept of law is that good should be done
and pursued and an evil be avoided”
- Anything done against the continuity, survival and perfection
of man is morally wrong.
- He agreed that natural law is from human reason. Positve
law should be accepted to the extent that it is compatible
with natural law or external law.

16. Evolution - renaissance
■ The period following middle ages – mid-14th century to
17th century.
■ Period marked by rationalism and return to ancient
philosophy.
■ This period marked with new discovery of science, which
shattered the established values.
■ This led to independence from church and need for a
secular society. To support this need several theories on
sovereignty of state was developed and as a result, the
church law was set aside to give rise to natural rights of
man.

17. Evolution - renaissance
■ This period gave rise to humanism and as such natural law
became open to rational inquiry free from religious
■ Hugo Grotius (1583-1645)
- He came up with the idea of functional natural law in his
laws of war & peace
- He considered international law derived from Natural law.
- He advocated for the absolute right of the ruler to rule over
its subjects. And yet he believed that the ruler is bound by
natural law.
- His theory was derived from the need for maintenance of
international peace.

18. Evolution - renaissance
■ Hugo Grotius (1583-1645)
- He believed that mans nature is in favour of peace. And
thus natural law is based on nature of man and his urge
to live in peace.
■ Thomas Hobbes (1588-1679)
- He believed that, men have the right to preserve their
person and property. To this end his theory of natural law
was based on absolute authority of a ruler over his
subjects.
- His idea of natural law was influenced by the civil war
between HM Charles the first and british parliament.
- Law which is enforced by the sovereign is the real law.

19. Evolution - renaissance
■ Read about John Locke and JJ Rousseau (page 108 -
110)

20. Evolution – Modern Period
■ Modern period is marked by entrance of analytical
positivists in to the discussions of law.
■ Austin and Bentham rejected natural law on the ground
that it was ambiguous and misleading. They aimed to
show that law and morality are mutually exclusive.
■ Rejection of natural law theory began as early as 19th
century. On the ground its vagueness and lack of an
empirical platform. Experts such as Hume and August
Compte rejected natural law theory on the ground that,
it is based or founded on supernatural beliefs.
■ This period gave rise to historical school which advocated
law to be a product of collective conscience. This
completely destroyed the foundation of natural law
theory.

21. Evolution - Modern Period
■ Several scholars of 20th century have written in favour of
natural law.
■ The shift in thought began in the 20th century, mainly
because, it gave rise to facism and Nazism.
■ This forced ppl to add some value or a moral identity to
the idea of law. Thus the new idea is full of values
subject to change contrary to the absolute form of
natural law we identified in the old days.
■ Students are required to read about, Rudolf Stammler,
John Rawls, and Lon Luvois Fuller , on page 111-113 and
115 to 116.