natural law

A law or body of laws that derives from nature and is believed to be binding upon human actions apart from or in conjunction with laws established by human authority.

Is a philosophic doctrine holding that there is a certain order in nature that provides norms for human conduct. This doctrine received its most renowned form in St. Thomas Aquinas's “Treatise on Law,” a part of his Summa Theologiae. For Aquinas, natural law was humanity's “participation” in the comprehensive eternal law. People could grasp certain self‐evident principles of practical reason, which corresponded to the various goods toward which human nature inclined. Natural law was a standard for human laws: unjust laws in principle did not bind in conscience.

Early modern political philosophers, especially Thomas Hobbes and John Locke, who successfully sought to displace the older teleological philosophy also employed the terms “natural law” or “law of nature,” but in a new sense. According to them, the source of natural law was not a set of naturally ordered ends of human well‐being and fulfillment, but an innate desire for self‐preservation. On this foundation, these theorists erected a new doctrine properly described as “natural rights.” The desire for self‐preservation in a state of nature, which Hobbes described in his Leviathan (1651) as “the war of all against all,” led to the establishment of a social contract, the foundation of civil society. The fundamental duty of government, according to Locke's Two Treatises of Government (1690), became the protection of rights to life, liberty, and property.

Modern natural rights theory was an important influence on the founders of American government, as evidenced by the principles of the Declaration of Independence. Nonetheless, aspects of the older teaching continued to be embedded in American law and political thought, through various concepts on the common law and through the teachings of the “civic republican” tradition.

Some early judicial opinions such as that of Justice Samuel Chase in Calder v. Bull (1798) held out the possibility that courts enforce “principles of natural justice” independently of particular constitutional provisions, but this idea was submerged when concepts of natural justice were channeled into the Fourteenth Amendment's Due Process Clause after the Civil War (see Due Process, Substantive). In the early nineteenth century, both sides in the debate over slavery invoked natural law.

From the late nineteenth century until 1937, natural law was a weapon in the debate over government power to regulate economic affairs. Defenders of a laissez‐faire theory of capitalism sometimes invoked natural rights concepts (see Laissez‐Faire Constitutionalism). Critics of this trend, whose intellectual descendants came to dominate the Supreme Court after 1937, included Oliver Wendell Holmes, who achieved prominence as a proponent of legal positivism even before his tenure on the Supreme Court (1902–1932). For Holmes, natural law theorists naively assumed that what is familiar to them must be accepted as true by all people everywhere. Holmes maintained that law was only a prediction of the rules that the sovereign power in society would enforce. Owing to the influence of these views, the dominant philosophical position in law became pragmatism, as represented in the writings of Roscoe Pound, which emphasized adaptation of law to social change.

From the 1940s through the early 1960s, Justices Felix Frankfurter and Hugo Black engaged in a famous debate on the meaning of due process of law. Frankfurter contended that due process was a concept of considerable generality and flexibility, which had to be given content by appealing to the “canons of decency and fairness which express the notions of English‐speaking peoples” (concurring in Adamson v. California, 1947). Black responded by criticizing the subjectivity of Frankfurter's “natural law” position. He later argued that the doctrine of substantive due process, formerly used to justify laissez‐faire economic decisions, was being resuscitated to justify a new right to privacy, including personal autonomy in childbearing decisions, in his dissent in Griswold v. Connecticut (1965).

The dominant strains in contemporary legal thinking continue to reject natural law doctrine. John Rawls's A Theory of Justice (1971) has been influential in presenting a social‐contractarian theory. Other influential positions such as utilitarianism and critical legal studies are also hostile to natural law thinking. Some natural rights thinkers may be found among libertarian legal scholars, and a more classical natural law approach survives in writers such as John Finnis (Natural Law and Natural Rights, 1980).

See also Fundamental Rights; Higher Law.

Bibliography

• Charles Grove Haines, The Revival of Natural Law Concepts (1930).
• Benjamin F. Wright, American Interpretations of Natural Law (1931)

— Christopher Wolfe

Rules of conduct determined by reflection upon human nature, the natural conditions of human existence, or the requirements of human flourishing. ‘Nature’ has many meanings in the history of ideas, of which five (which overlap) are especially important in this context:

(1) What is necessary for the development to occur or the aspiration to be realized.
(2) What is common to all persons, or what is common to positive legal systems.
(3)What the earliest conditions of human existence were.
(4) What such an existence would be like in the absence of some event or institution, such as private property or government.
(5) What God intended for man, and what is required of man.

The enforceability of natural law is problematic. In so far as it is associated with the will of God, its sanctions may be attributed to another world. In a secular version, in which natural law is depicted as rationally compelling, rights of enforcement may be attributed to all individuals, or the need for enforceability adduced as an explanation of the artifice of government. Natural law has therefore figured as an explanation of positive law and as a critical guide to its proper content. In so far as it specifies a universal standard, it provides a higher law than that of particular legal systems, and an external standard by which they may be judged. liberalism, in particular, has been shaped partly by a tradition of natural jurisprudence, in which the writings of Grotius, Pufendorf, Barbeyrac, Locke, and Adam Smith are particularly important. Contemporary political philosophy, characterized as the exploration of the political consequences of the human condition, may reject many of these understandings of the ‘natural’, but can scarcely escape some depiction, however plastic, of the material of political life. See also perfectionism.

— Andrew Reeve

For more information on natural law, visit Britannica.com.

The theory of natural law holds that there is a certain order in nature from which humans, by use of their reason, can derive standards for human conduct. For example, Saint Thomas Aquinas (a 13th-century European scholar and Roman Catholic priest), in his Summa Theologica, attempted to derive natural law from his understanding of the divine law revealed by God.

By contrast, philosophers of the European Age of Enlightenment (from the 1680s through the 1700s) such as John Locke in his Two Treatises of Government (1690) ignored the idea of divine law and based their concept of natural law on the fundamental human desire for self-preservation and fulfillment. Accordingly, Locke and other Enlightenment thinkers held that the laws of nature imply government based on consent of the governed as the way to secure natural rights of individuals to life, liberty, and property. The natural law standard for judging the worth of government was the effectiveness of the government in securing the natural rights of individuals. These rights were thought to exist prior to the people's establishment of their government, and all people were entitled to these rights by virtue of their humanity. All were bound to respect and abide by these natural rights because of their capacity to know and justify them through human reason.

The Enlightenment conception of natural law and natural rights influenced the founders of constitutional government in the United States. This influence is evident in the text of the Declaration of Independence and the preambles to the first state constitutions of the original 13 states. However, there were other important influences on the constitutional thought of the founders, such as the political and legal ideas brought to America from England and the experiences in establishing and developing their colonial governments.

The idea of natural law was used from time to time in debates about constitutional issues. For example, both sides in the slavery controversy, from the 1780s to the 1860s, appealed to natural law as justification for their views. Nineteenth-century opponents of strong government regulation of private business also appealed to natural law to support their constitutional arguments. However, during the 20th century, natural law theories have had little influence on the decisions of Supreme Court justices or the thoughts of most legal scholars. Legal protection of individual rights has not been based on natural law doctrines but on the principles and precedents stemming from interpretation of the U.S. Constitution and federal statutes.

See also Constitutional democracy; Constitutionalism; Constitutional law

Sources

• Hadley Arkes, “Natural Law”, Constitution 4, no. 1 (Winter 1992): 13–20

Natural law is a contribution to the perennial discussion of the nature of justice and morality; it is an attempt to root them in something beyond human convention and creation. The notion has had various meanings and contents—no less than the word nature itself—most of which can be traced back to Saint Thomas Aquinas (1225–1274), Roman Stoicism, and ultimately, Aristotle (384–322 B.C.E.). Constant to all its meanings is that natural law is coherent, suprahuman, objective moral order that contains the standards of what is good and just; and that it contains the standards by which human or positive law is to be judged from the perspective of a harmonious and coherent universe and is inherent in the "nature" of the world. It was born of attempts by ancient philosophers and jurists to discover—or determine—what was common to all legal systems in order to eliminate what would today be seen as the problems of "relativism" and cultural and legal "diversity." The presumption that there is a common core to all systems of morality and law that provides the standards by which they are to be evaluated leads to the issues of discovery, validation, and enforcement.

Universality and Permanence

Natural law, like justice, aims at universality and permanence. Operationally, like all law, it is duty-contradict, a series of moral prohibitions, permissions, and requirements. It proclaimed the union of morality and politics and emerged from an ancient worldview that saw a singular harmony in nature, manifested in the universal jus (or ius) gentium (international law). That universality was subsequently incorporated by Christianity into its conception of the divine ordering of all creation. Aquinas separated this classical understanding into the eternal, the divine, the natural, and the human (or positive) laws. The natural was still common to all humanity and was part of God's will and was the direct source for human law. In keeping with its Stoic roots, the natural law as conceived by Aquinas was discoverable through the use of natural reason, with the difference that for Aquinas that reason had been planted in everyone by God. Justice was an irresistible, rational necessity of naturally sociable human beings.

In this Aristotelian-Thomist form, for the most part, natural law continued into the early modern period. Even Jean Bodin (1530–1596), famed for his conception of political sovereignty as the absolute power to make and enforce law, held in his Six livres de la République (1576; Six books of the commonwealth) that the state in general was under the moral aegis of the overarching law of nature and limited sovereign absolutism to the positive law.

Protestant and secular natural-law theorists retained the understanding of humans as naturally sociable and rational and viewed the natural law as that which superintended human laws. The Vindiciae, contra Tyrannos (1579; Defense of liberty against tyrants; written by Philippe de Mornay, known as Duplessis-Mornay [1549–1623], but published anonymously) pointed to violations of the natural law as one of the signs of tyranny, and the sixteenth-century Anglican theologian Richard Hooker (1553 or 1554–1600) espoused a conception of natural law that was heavily indebted to Scholasticism in his Laws of Ecclesiastical Polity (1593, et seq.).

Reason and Natural Sociability

The seventeenth century witnessed the beginnings of a series of remarkable changes in natural-law theory, starting with the Dutch thinker Hugo Grotius (1583–1645), whomadereasonandnaturalsociability, rather than divinity, central to the conception developed in his De Iure Belli ac Pacis (1625; On the law of war and peace). So strong was his reliance upon these two that he suggested that the natural law would obtain even without God. Grotius was certainly not an atheist, but that charge was hurled at Thomas Hobbes (1588–1679), the English philosopher whose understanding of natural law shared many features with that of Grotius.

Sociability, Grotius argued, drove humanity into society from its prepolitical, state-of-nature beginnings; people were capable of understanding the ruling law of nature through their natural reason. Aquinas and the early-seventeenth-century Jesuit natural-law philosopher Francisco Suárez (1548–1617) had seen rationality as a reflection of divinity that enabled humans to understand God's will. Grotius appeared to have minimized that relationship, treating reason as a semiautonomous—albeit divinely implanted—and extremely important aspect of human nature. In his hands and those of his successors, this radically secularized and rationalized natural law was potentially removed from the realm of experience in which it had previously been rooted. The inherent human capacity to reason and the use of "right reason" independent of actual experience could lead to universal moral, social, and political principles by which human life was to be governed.

Perhaps the most important and influential proponent of this Grotian view of natural law was Samuel von Pufendorf (1632–1694), the first holder of a chair in natural law in a German university. In his De Jure Naturae et Gentium (1672; On natural and civil law), Pufendorf went even further and separated the natural, sociable world of human affairs and the natural law that governed it from the spiritual realm of theology. In this form, the new, secular natural law was adopted by many seventeenth- and eighteenth-century philosophers, especially Richard Cumberland (1631–1718), bishop of Peterborough (whose De Legibus Naturae [On natural laws] was published the same year as Pufendorf's work) and Jean Barbeyrac (1674–1744), the translator of Grotius and Pufendorf into French and historian of moral philosophy.

Cumberland had reached his conclusions independently of Pufendorf and was acknowledged in later editions of De Jure Naturae. Paradoxically, perhaps, Cumberland had developed some of his argument in opposition to the writings of Thomas Hobbes, who had denied natural sociability and ignored, if he did not actually deny, divinity. But Hobbes was subsequently to be ranked by Barbeyrac in the company of Grotius and Pufendorf as one of the great innovators in natural law theory.

State of Nature

Hobbes's theory, most notably in Leviathan (1651) and earlier in his De Cive (1642; On citizenship), began with an utterly undeveloped, fiercely competitive, and dangerously uncertain state of nature in which the natural law gave everyone the right to all things within their reach. People escaped this state of nature by voluntarily establishing a conventional absolutism in accord with the natural law requirement of self-preservation. Where traditional natural-law doctrine had provided a natural and rational basis for rights and liberties that persisted in some form in political society and had imposed varying limits on political authority, in Hobbes's hands, the inevitable destructiveness of natural freedom led only to a rationally established absolutism in which subjects had only as much freedom as their rulers permitted. It was the conceptual genius of Hobbes to subvert the appeal to natural law by many of his contemporaries—especially the Levellers—to attack the rule of Charles I as antithetical to their natural rights.

This Hobbesian reworking of natural law created great difficulties for his successors—he was frequently attacked and his books were subsequently banned in England—especially John Locke (1632–1704), who sought to establish a notion of secular natural law as leading to limited government. Locke is better known for his doctrine of natural rights than for his theory of natural law. The state of nature described in his Two Treatises of Government (1690) was sociable and far more peaceful than that of Hobbes, precisely because it was governed by the God-given natural law that people recognized and generally obeyed. The establishment of political—or "civil," as Locke often called it—society, accomplished by consent, was fully in accord with the law of nature and enabled people to achieve their natural ends by overcoming the uncertainties and insecurities of the state of nature. Locke's political state was to be limited by the natural justice contained in the natural law, and prolonged violations of that justice legitimated—in some cases, even required—a resort to revolution.

The Problem of Divine Will

There is a paradox inherent in a natural law theory that depends on divine will. Grotius and those who followed him recognized this problem. If God is the author or legislator of the law of nature, and its validity is a consequence of his will, then things are right or wrong because God has so directed, which makes him into something of an arbitrary but benevolent ruler. If, on the other hand, there are principles according to which God has decreed the natural law, as Aquinas seemed to have implied, then God is not omnipotent. Consigning all this to the realm of divine mystery severely limits its applicability to human affairs. The role of reason is crucial, but reason that is God-dependent simply pushes the problem one step further away. Aquinas, following Aristotle, argued for the relationship between divine natural law, reason, and human experience. But an independent reason of the sort advocated by Pufendorf requires some standard of validation. Locke tacitly sidestepped the issue in his Two Treatises, but at an earlier period in his life, in a series of lecturers he delivered in 1664 but refused to publish (published from the manuscripts in 1954 as Essays on the Law of Nature), he had agonized over the source of natural law and how and whether it could be known.

This series of questions was faced by Pufendorf, who concluded that the will of God in matters of natural law could be determined by consulting what is humanity's long-term and therefore best interests, thereby opening the door to a rational natural law that could be professed without any direct reliance upon divine will and revolution, which was ultimately a major break from the Scholastic tradition. He further urged that the author of this break was Grotius. The focus of natural law for Pufendorf—and Grotius—shifted from the morally requisite duties of individuals to the preservation of society, a view that was passed on to the eighteenth century by Barbeyrac. He published French translations of Grotius and Pufendorf that were translated into English and enjoyed wide popularity in both languages. His Historical and Critical Account of the Science of Morality (English translation, 1729), which prefaced his edition of Pufendorf, accepted and furthered Pufendorf's understanding of Grotius as the author of the radical break in natural-law theory. Barbeyrac argued for a new school of natural-law theory that included Grotius, John Selden (1584–1654), Pufendorf, Hobbes, Cumberland, and Locke, and his view became the accepted history of modern moral philosophy.

Human Will

These moves would make human will the determiner of natural-law precepts, leaving altogether open the issue of how to resolve conflicting accounts. Ultimately, this would be dealt with by the reintroduction of experience as that upon which reason operated. And, in keeping with the precepts of natural sociability, a standard of social utility extended over time would become the measure of justice as secular natural law gave place to utilitarianism. The Scholastic doctrine of natural law remained alive in Roman Catholic philosophy and theology.

Yet another and not unrelated direction for the development of natural law thinking was already present in Locke's conception of natural rights, for his emphasis was upon the natural entitlements as limits on the behavior of others and on the actions of government. The popularity of this doctrine represents the triumph of what has been called "individualism." This part of the natural law story ends with Thomas Jefferson's (1743–1826) invocation in the Declaration of Independence of the "law of Nature and Nature's God," a cosmetic reversion to the earlier theistic conception, from which he quickly moved to the self-evident, God-given "unalienable Rights" of "Life, Liberty, and the pursuit of Happiness" as the only legitimate ends of government. Expanded into the universal "human rights" of contemporary international politics, the modernized version of natural rights has become one of the primary alternatives to utilitarianism and social good as the test for good and just government.

Bibliography

Burns, J. H., ed. The Cambridge History of Political Thought, 1450–1700. Cambridge, U.K., and New York, 1991.

Gierke, Otto Friedrich von. Natural Law and the Theory of Society, 1500 to 1800, by Otto Gierke, with a lecture on The Ideas of Natural Law and Humanity, by Ernst Troeltsch. Translated and with an introduction by Ernest Barker. Cambridge, U.K., 1958.

Haakonssen, Knud. Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment. Cambridge, U.K., and New York, 1996.

Johnson, Harold J., ed. The Medieval Tradition of Natural Law. Kalamazoo, Mich., 1987.

Krieger, Leonard. The Politics of Discretion: Pufendorf and the Acceptance of Natural Law. Chicago, 1965.

—GORDON SCHOCHET

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 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 gradual 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.

Divine Natural Law

Proponents of divine natural law contend that law must be made to conform to the commands laid down or inspired by God, or some other deity, who governs according to principles of compassion, truth, and justice. These naturalists assert that the legitimacy of any enacted human law must be measured by its consonance with divine principles of right and wrong. Such principles can be found in Scripture, church doctrine, papal decrees, and the decisions of ecclesiastical courts and councils. Human laws that are inconsistent with divine principles of morality, naturalists maintain, are invalid and should neither be enforced nor obeyed. St. Thomas Aquinas, a theologian and philosopher from the thirteenth century, was a leading exponent of divine natural law.

Under Judeo-Christian belief, the Ten Commandments, which were delivered to Moses by God on Mount Sinai according to the Old Testament, represent one example of divine natural law. The Bible and Torah are thought by many to be other sources of divine natural law because their authors are said to have been inspired by a divine spirit. Some Christians point to the canon law of the Catholic Church, which was applied by the ecclesiastical courts of Europe during the Middle Ages, as a third source of divine natural law.

Before the Protestant Reformation of the sixteenth century, Europe was divided into two separate and competing jurisdictions — secular and religious. The emperors, kings, and queens of Europe governed the secular jurisdiction, and the pope presided over the religious jurisdiction. The notion that a "higher law" transcends the rules enacted by human institutions and that government is bound by this law, also known as the rule of law, fermented during the struggle between the secular and religious powers in Europe before the U.S. Revolution. Henry de Bracton, an English judge and scholar from the thirteenth century, wrote that a court's allegiance to the law and to God is above its allegiance to any ruler or lawmaker.

The influence of divine natural law was also pervasive during the colonial period of U.S. law. In 1690 English philosopher John Locke wrote that all people are born with the inherent rights to life, liberty, and estate. These rights are not unlimited, Locke said, and may only be appropriated according to the fair share earned by the labor of each person. Gluttony and waste of individual liberty are not permitted, Locke argued, because "[n]othing is made by God for man to spoil or destroy."

In the Declaration of Independence, Thomas Jefferson, borrowing from Locke, wrote that "all men are created equal … and are endowed by their creator with certain inalienable rights … [including] life, liberty and the pursuit of happiness." Jefferson identified the freedom of thought as one of the inalienable rights when he said, "Almighty God has created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint." In Powell v. Pennsylvania, 127 U.S. 678, 8 S. Ct. 1257, 32 L. Ed. 253 (1888), the Supreme Court recognized the importance of the divine influence in early U.S. law, stating that the "right to pursue happiness is placed by the Declaration of Independence among the inalienable rights of man, not by the grace of emperors or kings, or by the force of legislative or constitutional enactments, but by the Creator."

The U.S. Constitution altered the relationship between law and religion. Article VI establishes the Constitution as the supreme law of the land. The First Amendment prohibits the government from establishing a religion, which means that a law may not advance one religion at the expense of another or prefer a general belief in religion to irreligion, atheism, or agnosticism. Although the Supremacy and Establishment Clauses seemingly preclude the judiciary from grounding a decision on Scripture or religious doctrine, state and federal courts have occasionally referenced miscellaneous sources of divine natural law.

For example, in Edwards v. Aguillard, 482 U.S. 578, 107 S. Ct. 2573, 96 L. Ed. 2d 510 (1987), the Supreme Court said that "the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him." In McIlvaine v. Coxe's Lessee, 6 U.S. 280, 2 Cranch 280, 2 L. Ed. 279 (1805), the Supreme Court relied on the Bible as "ancient and venerable" proof that expatriation had long been "practiced, approved, and never restrained."

Confronted with the question as to whether the conveyance of a particular piece of land was legally enforceable, the Supreme Court said that it would consider "those principles of abstract justice, which the Creator of all things has impressed on the mind of his creature man, and which are admitted to regulate, in a great degree, the rights of civilized nations" (Johnson v. M'Intosh, 21 U.S. 543, 8 Wheat. 543, 5 L. Ed. 681 [1823]). In Dred Scott v. Sandford, 60 U.S. 393, 19 How. 393, 15 L. Ed. 691 (1856), the Supreme Court held that slaves were the property of their owners and were not entitled to any constitutional protection. In a dissenting opinion, however, Justice John McLean wrote that a "slave is not mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man."; slavery.

More recently, the Supreme Court relied on Judeo-Christian standards as evidence that homosexual sodomy is a practice not worthy of constitutional protection because it has been condemned throughout the history of western civilization (Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 [1986] [Burger, J., concurring]). State and federal courts also have considered Judeo-Christian standards when evaluating the constitutionality of statutes prohibiting bigamy and incest. For example, Benton v. State, 265 Ga. 648, 461 S.E.2d 202 (1995), upheld the constitutionality of a Georgia statute prohibiting incest.

Despite the sprinkling of cases that have referenced Scripture, religious doctrine, and Judeo-Christian heritage, such sources of divine natural law do not ordinarily form the express basis of judicial decisions. At the same time, it cannot be said that state and federal courts have completely eliminated any reliance on natural-law principles. To the contrary, many controversial legal disputes are still decided in accordance with unwritten legal principles that are derived not from religion, but from secular political philosophy.

Secular Natural Law

The school of natural law known as secular natural law replaces the divine laws of God with the physical, biological, and behavioral laws of nature as perceived by human reason. This school theorizes about the uniform and fixed rules of nature, particularly human nature, to identify moral and ethical norms. Influenced by the rational empiricism of the seventeenth and eighteenth century Enlightenment thinkers who stressed the importance of observation and experiment in arriving at reliable and demonstrable truths, secular natural law elevates the capacity of the human intellect over the spiritual authority of religion.

Many secular-natural-law theorists base their philosophy upon hypotheses about human behavior in the state of nature, a primitive stage in human evolution before the creation of governmental institutions and other complex societal organizations. In the state of nature, John Locke wrote, human beings live according to three principles — liberty, equality, and self-preservation. Because no government exists in the state of nature to offer police protection or regulate the distribution of goods and benefits, each individual has a right to self-preservation that he or she may exercise on equal footing with everyone else.

This right includes the liberties to enjoy a peaceful life, accumulate wealth and property, and otherwise satisfy personal needs and desires consistent with the coterminous liberties of others. Anyone who deprives another person of his or her rights in the state of nature, Locke argued, violates the principle of equality. Ultimately, Locke wrote, the state of nature proves unsatisfying. Human liberty is neither equally fulfilled nor protected. Because individuals possess the liberty to delineate the parameters of their own personal needs and desires in the state of nature, greed, narcissism, and self-interest eventually rise to the surface, causing irrational and excessive behavior and rendering human safety evanescent. Thus, Locke concluded, the law of nature leads people to establish a government that is empowered to protect life, liberty, and property.

Lockean jurisprudence has manifested itself in the decisions of the Supreme Court. In Powell v. Pennsylvania, 127 U.S. 678, 8 S. Ct. 1257, 32 L. Ed. 253 (1888), Justice Stephen J. Field wrote that he had "always supposed that the gift of life was accompanied by the right to seek and produce food, by which life can be preserved and enjoyed, in all ways not encroaching upon the equal rights of others." In another case the Supreme Court said that the "rights of life and personal liberty are the natural rights of man. To secure these rights … governments are instituted among men" (U.S. v. Cruikshank, 92 U.S. 542, 2 Otto 542, 23 L. Ed. 588 [1875]).

In the spirit of Lockean natural law, the Fifth and Fourteenth Amendments to the Constitution prohibit the government from taking "life, liberty, or property without due process of law." The concept of "due process" has been a continuing source of natural law in constitutional jurisprudence. If Lockean natural law involves theorizing about the scope of human liberty in the state of nature, constitutional natural law involves theorizing about the scope of liberty protected by the Due Process Clauses of the Fifth and Fourteenth Amendments.

On their face the Due Process Clauses appear to offer only procedural protection, guaranteeing litigants the right to be informed of any legal action being taken against them and the opportunity to be heard during an impartial hearing where relevant claims and defenses may be asserted. Over the last 150 years, however, federal courts have interpreted the Due Process Clauses to provide substantive protection against arbitrary and discriminatory governmental encroachment of fundamental liberties. Similar to the rational empiricism by which Enlightenment thinkers identified human rights in the state of nature, federal judges have identified the liberties protected by the Due Process Clauses through a reasoned elaboration of the Fifth and Fourteenth Amendments.

The federal judiciary has described the liberty interest protected by the Due Process Clauses as an interest guaranteeing a number of individual freedoms, including the right to personal autonomy, bodily integrity, self-dignity, and self-determination (Gray v. Romeo, 697 F. Supp. 580 [1988]). The word liberty, the Supreme Court said, means something more than freedom from physical restraint. "It means freedom to go where one may choose, and to act in such manner … as his judgment may dictate for the promotion of his happiness … [while pursuing] such callings and avocations as may be most suitable to develop his capacities, and give to them their highest enjoyment" (Munn v. Illinois, 94 U.S. 113, 4 Otto 113, 24 L. Ed. 77 [1876] [Field, J., dissenting]).

The full breadth of constitutional liberty, the Supreme Court has said, is best explained as a rational continuum safeguarding every facet of human freedom from arbitrary impositions and purposeless restraints (Poe v. Ullman, 367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989 [1961]). The government may not intrude upon this liberty unless it can demonstrate a persuasive countervailing interest. However, the more that the U.S. legal system cherishes a particular freedom, the less likely a court is to enforce a law that infringes upon it.

In this regard the Supreme Court has identified certain fundamental rights that qualify for heightened judicial protection against laws threatening to restrict them. This list of fundamental rights includes most of the specific freedoms enumerated in the Bill of Rights, as well as the freedom of association, the right to vote and participate in the electoral process, the right to marry, procreate, and rear children, and the right toprivacy. The right to privacy, which is not expressly enumerated anywhere in the Constitution, guarantees the freedom of adults to use birth control (Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 [1965]) and the right of women to terminate their pregnancy before the fetus becomes viable (Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]).

During the 1990s the right to privacy was enlarged to recognize the right of certain terminally ill or mentally incompetent persons to refuse medical treatment. In Cruzan v. Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990), the Supreme Court ruled that a person who is in a persistent vegetative state, marked by the absence of any significant cognitive abilities, may seek to terminate life-sustaining measures, including artificial nutrition and hydration equipment, through a parent, spouse, or other appropriate guardian who demonstrates that the incompetent person previously expressed a clear desire to discontinue medical treatment under such circumstances.

The Court of Appeals for the Ninth Circuit later cited Cruzan in support of its decision establishing the right of competent but terminally ill patients to hasten their death by refusing medical treatment when the final stages of life are tortured by pain and indignity (Compassion in Dying v. Washington, 79 F.3d 790 [9th Cir. 1996]). However, the Court of Appeals for the Second Circuit ruled that physicians possess no due process right to assist terminally ill patients in accelerating their death by prescribing a lethal dose of narcotics (Quill v. Vacco, 80 F.3d 716 [2d Cir. 1996]). Similarly, in a notorious case involving Dr. Jack Kevorkian, the Michigan Supreme Court ruled that patients have no due process right to physician-assisted suicide (People v. Kevorkian, 447 Mich. 436, 527 N. W. 2d 714 [1994]).

In the Cruzan decision, the manner in which the Supreme Court recognized a qualified right to die reflects the Enlightenment tradition of secular natural law. Where Locke inferred the inalienable rights of life, liberty, and property from observing human behavior, the Supreme Court said in Cruzan that "a Constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions."

For example, in Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643 (1905), the Supreme Court protected the constitutional right of a person to decline a smallpox vaccination that was required by state law. In Washington v. Harper, 494 U.S. 210, 110 S. Ct. 1028, 108 L. Ed. 2d 178 (1990), the Court ruled that the liberty interest guaranteed by the Due Process Clauses prohibits the government from compelling prisoners to take antipsychotic drugs. These cases, as well as others, the Supreme Court reasoned in Cruzan, establish that all U.S. citizens have a general right to refuse unwanted medical treatment, which includes the specific right of certain mentally incompetent and terminally ill persons to hasten their death.

Historical Natural Law

Another school of natural law is known as historical natural law. According to this school, law must be made to conform with the well-established, but unwritten, customs, traditions, and experiences that have evolved over the course of history. Historical natural law has played an integral role in the development of the Anglo-American system of justice. When King James I attempted to assert the absolute power of the British monarchy during the seventeenth century, for example, English jurist Sir Edward Coke argued that the sovereignty of the crown was limited by the ancient liberties of the English people, immemorial custom, and the rights prescribed by Magna Charta in 1215.

Magna Charta also laid the cornerstone for many U.S. constitutional liberties. The Supreme Court has traced the origins of grand juries, petit juries, and the writ of habeas corpus to Magna Charta. The Eighth Amendment proportionality analysis, which requires that criminal sanctions bear some reasonable relationship to the seriousness of the offense, was foreshadowed by Magna Charta's prohibition of excessive fines (Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 [1983]). The concept of due process was inherited from the requirement in Magna Charta that all legal proceedings comport with the "law of the land" (In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 [1970]).

Due process of law, the Supreme Court has observed, contains both procedural and historical aspects that tend to converge in criminal cases (Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 [1952]). Procedurally, due process guarantees criminal defendants a fair trial. Historically, due process guarantees that no defendant may be convicted of a crime unless the government can prove his or her guilt beyond a reasonable doubt. Although the reasonable doubt standard can be found nowhere in the express language of the Constitution, the Supreme Court has said that the demand for a higher degree of persuasion in criminal cases has been repeatedly expressed since "ancient times" through the common-law tradition and is now "embodied in the Constitution" (In re Winship).

The legacy of the trial of John Peter Zenger, 17 Howell's State Trials 675, further illustrates the symbiotic relationship between history and the law. Zenger, the publisher of the New York Weekly Journal, was charged with libeling the governor of New York in 1735. At trial Zenger admitted that he had published the allegedly harmful article but argued that the article was not libelous because it contained no inaccurate statements. However, truth was not a defense to libel actions in the American colonies. Despite Zenger's admission of harmful publication, and lack of a cognizable legal defense, the jury acquitted him.

The Zenger acquittal spawned two ideas that have become entrenched in U.S. jurisprudence. First, the acquittal gave birth to the idea that truth should be a defense to accusations of libel. This defense received constitutional protection under the First Amendment in New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). The Supreme Court has described the Zenger trial as "the earliest and most famous American experience with freedom of the press" (McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S. Ct. 1511, 131 L. Ed. 2d 426, [1995]).

The Zenger trial is also the progenitor of jury nullification, which is the power of a jury, as the conscience of the community, to acquit defendants against whom there is overwhelming evidence of guilt in order to challenge a specific law, prevent oppression, or otherwise achieve justice. For example, the Zenger jurors issued an acquittal despite what amounted to a confession by the defendant in open court. Some observers have compared the Zenger trial to the trial of O. J. Simpson, where the former football star was acquitted of a double homicide notwithstanding DNA evidence linking him to the crimes. According to these observers, Johnnie Cochran, defense attorney for Simpson, implored the jurors to ignore the evidence against his client and render a verdict that would send a message denouncing police corruption, perjury, and racism.

All three schools of natural law have influenced the development of U.S. law from colonial times to the present day. In many ways the creation and ratification of the Constitution replaced Scripture and religion as the ultimate source of law in the United States. The federal Constitution makes the people the fundamental foundation of authority in the U.S. system of government. Many of the Framers characterized the Constitution as containing "sacred and inviolate" truths. In the same vein, Thomas Paine described the Constitution as a "political Bible."

In 1728 many Americans understood that the common law encompassed the Law of Nature, the Law of Reason, and the Revealed Law of God, which are equally binding at all times, in all places, and to all persons. The law of history could have been added to this litany. Between 1776 and 1784, eleven of the original thirteen states made some allowance for the adoption of the English common law. One federal court said that the Constitution "did not create any new rights to life, liberty or due process. These rights had existed for Englishmen since Magna Charta. The Declaration of Independence . . merely declared and established these rights for the American colonies" (Screven County v. Brier Creek Hunting & Fishing Club, 202 F. 2d 369 [5th Cir. 1953]). Thus, natural law in the United States may be best understood as the integration of history, secular reason, and divine inspiration.

See: Dred Scott v. Sandford; abortion; Griswold v. Connecticut; libel and slander; New York Times v. Sullivan; Constitution of the United States; jurisprudence.

"Law of nature" redirects here. For other meanings, see Law of nature (disambiguation).

For other uses, see Natural law (disambiguation).

It has been suggested that this article or section be merged with Natural and legal rights . (Discuss)

Natural law or the law of nature (Latin: lex naturalis) is a theory that posits the existence of a law whose content is set by nature and that therefore has validity everywhere.^[1] The phrase natural law is sometimes opposed to the positive law of a given political community, society, or nation-state, and thus can function as a standard by which to criticize that law. In natural law jurisprudence, on the other hand, the content of positive law cannot be known without some reference to the natural law (or something like it). Used in this way, natural law can be invoked to criticize decisions about the statutes, but less so to criticize the law itself. Some use natural law synonymously with natural justice or natural right (Latin ius naturale), although most contemporary political and legal theorists separate the two.

Natural law theories have exercised a profound influence on the development of English common law,^[2] and have featured greatly in the philosophies of Thomas Aquinas, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, John Locke and Emmerich de Vattel. Because of the intersection between natural law and natural rights, it has been cited as a component in United States Declaration of Independence and the Constitution of the United States.

Contents 1 History 1.1 Aristotle 1.2 Stoic natural law 1.3 Christian natural law 1.4 Islamic natural law 1.5 Hobbes' natural law 1.6 Liberal natural law 2 Contemporary Catholic understanding 3 In contemporary jurisprudence 4 See also 5 References 6 Further reading 7 External links

History

The use of natural law, in its various incarnations, has varied widely through its history. There are a number of different theories of natural law, differing from each other with respect to the role that morality plays in determining the authority of legal norms. This article will deal with its usages separately rather than attempt to unify them into a single theory.

Aristotle

Greek philosophy emphasized the distinction between "nature" (physis, φúσις) on the one hand and "law", "custom", or "convention" (nomos, νóμος) on the other. What the law commanded varied from place to place, but what was "by nature" should be the same everywhere. A "law of nature" would therefore have had the flavor more of a paradox than something which obviously existed.^[1] Against the conventionalism that the distinction between nature and custom could engender, Socrates and his philosophic heirs, Plato and Aristotle, posited the existence of natural justice or natural right (dikaion physikon, δικαιον φυσικον, Latin ius naturale). Of these, Aristotle is often said to be the father of natural law.^[3]

Aristotle's association with natural law is due largely to the interpretation given to his works by Thomas Aquinas.^[4] This was based on Aquinas's conflation of natural law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics (Book IV of the Eudemian Ethics). Aquinas's influence was such as to affect a number of early translations of these passages,^[5] though more recent translations render them more literally.^[6] Aristotle notes that natural justice is a species of political justice, viz. the scheme of distributive and corrective justice that would be established under the best political community;^[7] were this to take the form of law, this could be called a natural law, though Aristotle does not discuss this and suggests in the Politics that the best regime may not rule by law at all.^[8]

The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric, where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature.^[9] The context of this remark, however, suggests only that Aristotle advised that it could be rhetorically advantageous to appeal to such a law, especially when the "particular" law of one's own city was averse to the case being made, not that there actually was such a law;^[10] Aristotle, moreover, considered two of the three candidates for a universally valid, natural law provided in this passage to be wrong.^[1] Aristotle's theoretical paternity of the natural law tradition is consequently disputed.

Stoic natural law

The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics. The rise of natural law as a universal system coincided with the rise of large empires and kingdoms in the Greek world. ^[11] Whereas the "higher" law to which Aristotle suggested one could appeal was emphatically natural, in contradistinction to being the result of divine positive legislation, the Stoic natural law was indifferent to the divine or natural source of the law: the Stoics asserted the existence of a rational and purposeful order to the universe (a divine or eternal law), and the means by which a rational being lived in accordance with this order was the natural law, which spelled out action that accorded with virtue.^[1] Stoics emphasized the universal ideas of individual worth, moral duty, and universal brotherhood. These theories became highly influential among Roman jurists, and consequently played a great role in subsequent legal theory.

Christian natural law

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A number (though not all) of the early Church Fathers sought to incorporate it into Christianity. This was true in the West more so than in the East. The most notable among these was Augustine of Hippo, who equated natural law with man's prelapsarian state; as such, a life according to nature was no longer possible and men needed instead to seek salvation through the divine law and grace of Jesus Christ. In the Twelfth Century, Gratian reversed this, equating the natural and divine laws. Thomas Aquinas restored Natural Law to its independent state, asserting that, as the perfection of human reason, it could approach but not fully comprehend the Eternal law and needed to be supplemented by Divine law. See also Biblical law in Christianity.

All human laws were to be judged by their conformity to the natural law. An unjust law was in a sense no law at all. At this point, the natural law was not only used to pass judgment on the moral worth of various laws, but also to determine what the law said in the first place. This could result in some tension.^[12]

The natural law was inherently deontological in that although it is aimed at goodness, it is entirely focused on the ethicalness of actions, rather than the consequence. The specific content of the natural law was therefore determined by a conception of what things constituted happiness, be they temporal satisfaction or salvation. The state, in being bound by the natural law, was conceived as an institution directed at bringing its subjects to true happiness. In the 16th century, the School of Salamanca (Francisco Suárez, Francisco de Vitoria, etc.) further developed a philosophy of natural law. After the Church of England broke from Rome, the English theologian Richard Hooker adapted Thomistic notions of natural law to Anglicanism.

Islamic natural law

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The Maturidi school, the second largest school of Sunni theology, posits the existence of a form of natural law. Abu Mansur al-Maturidi stated that the human mind could know of the existence of God and the major forms of 'good' and 'evil' without the help of revelation. Al-Maturidi gives the example of stealing which is known to be evil by reason alone due to man's working hard for his property. Killing, fornication, and drinking alcohol were all 'evils' which the human mind could know of according to al-Maturidi.

The concept of Istislah in Islamic law bears some similarities to the natural law tradition in the West, as exemplified by Thomas Aquinas. However, whereas natural law deems good that which is known self-evidently to be good, according as it tends towards the fulfilment of the person, istislah calls good whatever is connected to one of five "basic goods". Al-Ghazali abstracted these "basic goods" from the legal precepts in the Qur'an and Sunnah: they are religion, life, reason, lineage and property. Some add also "honour".

Ibn Qayyim al-Jawzi also posited that human reason could discern between 'great sins' and good deeds.

Abū Rayhān al-Bīrūnī, an Islamic scholar and polymath scientist, understood natural law as the law of the jungle. He argued that the antagonism between human beings can only be overcome through a divine law, which he believed to have been sent through prophets. This is also the position of the Ashari school, the largest school of Sunni theology.^[13]

Averroes (Ibn Rushd), in his treatise on Justice and Jihad and his commentary on Plato's Republic, writes that the human mind can know of the unlawfulness of killing and stealing and thus of the five maqasid or higher intents of the Islamic sharia or to protect religion, life, property, offspring, and reason. The concept of natural law entered the mainstream of Western culture through his Aristotelian commentaries, influencing the subsequent Averroist movement and the writings of Thomas Aquinas.^[14]

Hobbes' natural law

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By the Seventeenth Century, the Medieval teleological view came under intense criticism from some quarters. Thomas Hobbes instead founded a contractualist theory of legal positivism on what all men could agree upon: what they sought (happiness) was subject to contention, but a broad consensus could form around what they feared (violent death at the hands of another). The natural law was how a rational human being, seeking to survive and prosper, would act. It was discovered by considering humankind's natural rights, whereas previously it could be said that natural rights were discovered by considering the natural law. In Hobbes' opinion, the only way natural law could prevail was for men to submit to the commands of the sovereign. Because the ultimate source of law now comes from the sovereign, and the sovereign's decisions need not be grounded in morality, legal positivism is born. Jeremy Bentham's modifications on legal positivism further developed the theory.

As used by Thomas Hobbes in his treatises Leviathan and De Cive, natural law is "a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or takes away the means of preserving the same; and to omit that by which he thinks it may best be preserved."

According to Hobbes, there are nineteen Laws. The first two are expounded in chapter XIV of Leviathan("of the first and second natural laws; and of contracts"); the others in chapter XV ("of other laws of nature").

• The first Law of nature is that every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and advantages of war.
• The second Law of nature is that a man be willing, when others are so too, as far forth, as for peace, and defence of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himself.
• The third Law is that men perform their covenants made. In this law of nature consisteth the fountain and original of justice... when a covenant is made, then to break it is unjust and the definition of injustice is no other than the not performance of covenant. And whatsoever is not unjust is just.
• The fourth Law is that a man which receiveth benefit from another of mere grace, endeavour that he which giveth it, have no reasonable cause to repent him of his good will. Breach of this law is called ingratitude.
• The fifth Law is complaisance: that every man strive to accommodate himself to the rest. The observers of this law may be called sociable; the contrary, stubborn, insociable, froward, intractable.
• The sixth Law is that upon caution of the future time, a man ought to pardon the offences past of them that repenting, desire it.
• The seventh Law is that in revenges, men look not at the greatness of the evil past, but the greatness of the good to follow.
• The eighth Law is that no man by deed, word, countenance, or gesture, declare hatred or contempt of another. The breach of which law is commonly called contumely.
• The ninth Law is that every man acknowledge another for his equal by nature. The breach of this precept is pride.
• The tenth law is that at the entrance into the conditions of peace, no man require to reserve to himself any right, which he is not content should be reserved to every one of the rest. The breach of this precept is arrogance, and observers of the precept are called modest.
• The eleventh law is that if a man be trusted to judge between man and man, that he deal equally between them.
• The twelfth law is that such things as cannot be divided, be enjoyed in common, if it can be; and if the quantity of the thing permit, without stint; otherwise proportionably to the number of them that have right.
• The thirteenth law is that those things which cannot be enjoyed in common, nor divided, ought to be adjudged to the first possessor; and in some cases to the first born, as acquired by lot.
• The fourteenth law is that all men that mediate peace be allowed safe conduct.
• The fifteenth law is that they that are at controversy submit their right to the judgment of an arbitrator.
• The sixteenth law is that no man is a fit arbitrator in his own cause.

Liberal natural law

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Liberal natural law grew out of the medieval Christian natural law theories and out of Hobbes' revision of natural law, sometimes in an uneasy balance of the two.

Hugo Grotius based his philosophy of international law on natural law. In particular, his writings on freedom of the seas and just war theory directly appealed to natural law. About natural law itself, he wrote that "even the will of an omnipotent being cannot change or abrogate" natural law, which "would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs." (De iure belli ac pacis, Prolegomeni XI). This is the famous argument etiamsi daremus (non esse Deum), that made natural law no longer dependent on theology.

John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government. There is considerable debate about whether his conception of natural law was more akin to that of Aquinas (filtered through Richard Hooker) or Hobbes' radical reinterpretation, though the effect of Locke's understanding is usually phrased in terms of a revision of Hobbes upon Hobbesean contractualist grounds. Locke turned Hobbes' prescription around, saying that if the ruler went against natural law and failed to protect "life, liberty, and property," people could justifiably overthrow the existing state and create a new one.

While Locke spoke in the language of natural law, the content of this law was by and large protective of natural rights, and it was this language that later liberal thinkers preferred. Thomas Jefferson, echoing Locke, appealed to unalienable rights in the Declaration of Independence, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

The Belgian philosopher of law Frank van Dun is one among those who are elaborating a secular conception[1] of natural law in the liberal tradition. However, a secular critique of the natural law doctrine was stated by Pierre Charron in his De la sagesse (1601): "The sign of a natural law must be the universal respect in which it is held, for if there was anything that nature had truly commanded us to do, we would undoubtedly obey it universally: not only would every nation respect it, but every individual. Instead there is nothing in the world that is not subject to contradiction and dispute, nothing that is not rejected, not just by one nation, but by many; equally, there is nothing that is strange and (in the opinion of many) unnatural that is not approved in many countries, and authorized by their customs."

Contemporary Catholic understanding

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The Roman Catholic Church holds the view of natural law set forth by Thomas Aquinas, particularly in his Summa Theologica, and often as filtered through the School of Salamanca. This view is also shared by some Protestant churches.^[15]

The Catholic Church understands human beings to consist of body and mind, the physical and the non-physical (or soul perhaps), and that the two are inextricably linked. Humans are capable of discerning the difference between good and evil because they have a conscience. There are many manifestations of the good that we can pursue. Some, like procreation, are common to other animals, while others, like the pursuit of truth, are inclinations peculiar to the capacities of human beings.

To know what is right, one must use one's reason and apply it to Aquinas' precepts. This reason is believed to be embodied, in its most abstract form, in the concept of a primary precept: "Good is to be sought, evil avoided."^[16] St. Thomas explains that:

there belongs to the natural law, first, certain most general precepts, that are known to all; and secondly, certain secondary and more detailed precepts, which are, as it were, conclusions following closely from first principles. As to those general principles, the natural law, in the abstract, can nowise be blotted out from men's hearts. But it is blotted out in the case of a particular action, insofar as reason is hindered from applying the general principle to a particular point of practice, on account of concupiscence or some other passion, as stated above (77, 2). But as to the other, i.e., the secondary precepts, the natural law can be blotted out from the human heart, either by evil persuasions, just as in speculative matters errors occur in respect of necessary conclusions; or by vicious customs and corrupt habits, as among some men, theft, and even unnatural vices, as the Apostle states (Rm. i), were not esteemed sinful.^[17]

However, while the primary and immediate precepts cannot be "blotted out", the secondary precepts can be. Therefore, for a deontological ethical theory they are open to a surprisingly large amount of interpretation and flexibility. Any rule that helps man to live up to the primary or subsidiary precepts can be a secondary precept, for example:

• Drunkenness is wrong because it injures one's health, and worse, destroys one's ability to reason, which is fundamental to man as a rational animal (i.e. does not support self preservation).
• Theft is wrong because it destroys social relations, and man is by nature a social animal (i.e. does not support the subsidiary precept of living in society).

Natural moral law is concerned with both exterior and interior acts, also known as action and motive. Simply doing the right thing is not enough; to be truly moral one's motive must be right as well. For example, helping an old lady across the road (good exterior act) to impress someone (bad interior act) is wrong. However, good intentions don’t always lead to good actions. The motive must coincide with Aquinas's cardinal or theological virtues. Cardinal virtues are acquired through reason applied to nature; they are:

1. Prudence
2. Justice
3. Temperance
4. Fortitude

His theological virtues are:

1. Faith
2. Hope
3. Charity

According to Aquinas, to lack any of these virtues is to lack the ability to make a moral choice. For example, consider a man who possesses the virtues of justice, prudence, and fortitude, yet lacks temperance. Due to his lack of self control and desire for pleasure, despite his good intentions, he will find himself swaying from the moral path.

In contemporary jurisprudence

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In jurisprudence, natural law can refer to the several doctrines:

• That just laws are immanent in nature; that is, they can be "discovered" or "found" but not "created" by such things as a bill of rights;
• That they can emerge by the natural process of resolving conflicts, as embodied by the evolutionary process of the common law; or
• That the meaning of law is such that its content cannot be determined except by reference to moral principles. These meanings can either oppose or complement each other, although they share the common trait that they rely on inherence as opposed to design in finding just laws.

Whereas legal positivism would say that a law can be unjust without it being any less a law, a natural law jurisprudence would say that there is something legally deficient about an unjust law. Legal interpretivism, famously defended in the English speaking world by Ronald Dworkin, claims to have a position different from both natural law and positivism.

Besides utilitarianism and Kantianism, natural law jurisprudence has in common with virtue ethics that it is a live option for a first principles ethics theory in analytic philosophy.

The concept of natural law was very important in the development of the English common law. In the struggles between Parliament and the monarch, Parliament often made reference to the Fundamental Laws of England which were at times said to embody natural law principles since time immemorial and set limits on the power of the monarchy. According to William Blackstone, however, natural law might be useful in determining the content of the common law and in deciding cases of equity, but was not itself identical with the laws of England. Nonetheless, the implication of natural law in the common law tradition has meant that the great opponents of natural law and advocates of legal positivism, like Jeremy Bentham, have also been staunch critics of the common law.

Natural law jurisprudence is currently undergoing a period of reformulation (as is legal positivism). The most prominent contemporary natural law jurist, Australian John Finnis, is based in Oxford, but there are also Americans Germain Grisez, Robert P. George, and Canadian Joseph Boyle. All have tried to construct a new version of natural law. The 19th-century anarchist and legal theorist, Lysander Spooner, was also a figure in the expression of modern natural law.

"New Natural Law" as it is sometimes called, originated with Grisez. It focuses on "basic human goods," such as human life, knowledge, and aesthetic experience, which are self-evidently and intrinsically worthwhile, and states that these goods reveal themselves as being incommensurable with one another.

See also

• Aristotle
• Thomas Aquinas
• Jean Barbeyrac
• Richard Cumberland
• John Finnis
• Hugo Grotius
• Thomas Hobbes
• John Locke
• Samuel von Pufendorf
• Legal positivism
• Natural justice
• Natural order
• Natural rights
• Naturalistic fallacy
• Orders of creation
• School of Salamanca
• Spontaneous order
• Stoicism
• Substantive due process
• Unenumerated rights

References

1. ^ ^{a b c d} "Natural Law," International Encyclopedia of the Social Sciences.
2. ^ Blackstone, Commentaries on the Laws of England
3. ^ Shellens, "Aristotle on Natural Law."
4. ^ Jaffa, Thomism and Aristotelianism.
5. ^ H. Rackham, trans., Nicomachean Ethics, Loeb Classical Library; J. A. K. Thomson, trans. (revised by Hugh Tedennick), Nicomachean Ethics, Penguin Classics.
6. ^ Joe Sachs, trans., Nicomachean Ethics, Focus Publishing
7. ^ Nicomachean Ethics, Bk. V, ch. 6–7.
8. ^ Politics, Bk. III, ch. 16.
9. ^ Rhetoric 1373b2–8.
10. ^ Shellens, "Aristotle on Natural Law," 75–81
11. ^ Lloyd's Introduction to Jurisprudence Seventh Edition.
12. ^ Burns, "Aquinas's Two Doctrines of Natural Law."
13. ^ Corbin, Henry. History of Islamic Philosophy, Translated by Liadain Sherrard, Philip Sherrard. London; Kegan Paul International in association with Islamic Publications for The Institute of Ismaili Studies. pp. 39. ISBN 0710304161. 
14. ^ Roeber, A. G. (October 2001), "What the Law Requires Is Written on Their Hearts: Noachic and Natural Law among German-Speakers in Early Modern North America", The William and Mary Quarterly, Third Series 58 (4): 883–912 [887] 
15. ^ A Biblical Case for Natural Law, by David VanDrunen. Studies in Christian Social Ethics and Economics, no. 1. Grand Rapids: Acton Institute, 2006.
16. ^ Summa Theologica I-II, Q. 94, A. 2.
17. ^ Summa Theologica I-II, Q. 94, A. 6.

Further reading

• Aristotle. Nicomachean Ethics. Translated by H. Rackham. Loeb Classical Library. Cambridge, MA: Harvard University Press.
• Aristotle. Nicomachean Ethics. Translated by J. A. K. Thomson (revised by Hugh Trennedick). New York: Penguin.
• Aristotle. Nicomachean Ethics. Translated by Joe Sachs. Newburyport, MA: Focus Publishing.
• Aristotle. Rhetoric.
• Aristotle. Politics.
• Barzilai, Gad. 2007. Law and Religion. International Library of Essays on Law and Society. Ashgate.
• Blackstone, William. 1765–9. Commentaries on the Laws of England.
• Burns, Tony. 2000. "Aquinas's Two Doctrines of Natural Law." Political Studies 48. Pp. 929–946.
• Finnis, John. 1980. Natural Law and Natural Rights. Oxford: Clarendon Press.
• Haakonssen, Knud. 1992. “Natural Law Theory.” In Lawrence C. Becker and Charlotte B. Becker, eds. Encyclopedia of Ethics. New York: Garland.
• Haakonssen, Knud. 1996. Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment. Cambridge, UK: Cambridge University Press.
• Jaffa, Harry V. 1952. Thomism and Aristotelianism. Chicago: University of Chicago Press.
• Kainz, Howard P. 2004. Natural Law: an Introduction and Re-examination. Open Court. ISBN 0-8126-9454-6.
• "Natural Law." International Encyclopedia of the Social Sciences. New York, 1968.
• Robinson, Dave & Groves, Judy. 2003. Introducing Political Philosophy. Icon Books. ISBN 1-84046-450-X.
• Raoul Muhm: Germania: La rinascita del diritto naturale e i crimini contro l´umanità. Deutschland: Die Renaissance des Naturrechts und die Verbrechen gegen die Menschlichkeit. Germany: The renaissance of natural law and crimes against humanity. Vecchiarelli Editore Manziana (Roma) 2004 ISBN 88-8247-153-5
• Shellens, Max Salomon. 1959. "Aristotle on Natural Law." Natural Law Forum 4, no. 1. Pp. 72–100.

External links

• Stanford Encyclopedia of Philosophy:
  • The Natural Law Tradition in Ethics, by Mark Murphy, 2002.
  • Aquinas' Moral, Political, and Legal Philosophy, by John Finnis, 2005.
  • Natural Law Theories, by John Finnis, 2007.
• Aquinas on natural law
• Natural Law explained, evaluated and applied A clear introduction to Natural Law
• Catholic Encyclopedia "Natural Law"
• Internet Encyclopedia of Philosophy Entry 'Natural Law' by Kenneth Einar Himma
• Daniel Z. Epstein "Law's 'I'" 2007.
• McElroy, Wendy The Non-Absurdity of Natural Law, The Freeman, February 1998, Vol. 48, No. 2, pp.108–111

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