Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of
human nature
Human nature is a concept that denotes the fundamental dispositions and characteristics—including ways of thinking, feeling, and acting—that humans are said to have naturally. The term is often used to denote the essence of humankind, or ...
, and based on values intrinsic to human nature that can be
deduced and applied independently of
positive law
Positive laws ( la, links=no, ius positum) are human-made laws that oblige or specify an action. Positive law also describes the establishment of specific rights for an individual or group. Etymologically, the name derives from the verb ''to posit ...
(the express enacted laws of a
state
State may refer to:
Arts, entertainment, and media Literature
* ''State Magazine'', a monthly magazine published by the U.S. Department of State
* ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States
* ''Our S ...
or
society
A society is a group of individuals involved in persistent social interaction, or a large social group sharing the same spatial or social territory, typically subject to the same political authority and dominant cultural expectations. Socie ...
). According to natural law theory (called
jusnaturalism
Jusnaturalism or iusnaturalism is a theory of law, which holds that legal norms follow a human universal knowledge on justice and harmony of relations. Thus, it views enacted laws that contradict such universal knowledge as unjust and illegitimat ...
), all people have inherent rights, conferred not by act of legislation but by "
God
In monotheism, monotheistic thought, God is usually viewed as the supreme being, creator deity, creator, and principal object of Faith#Religious views, faith.Richard Swinburne, Swinburne, R.G. "God" in Ted Honderich, Honderich, Ted. (ed)''The Ox ...
,
nature
Nature, in the broadest sense, is the physics, physical world or universe. "Nature" can refer to the phenomenon, phenomena of the physical world, and also to life in general. The study of nature is a large, if not the only, part of science. ...
, or
reason
Reason is the capacity of consciously applying logic by drawing conclusions from new or existing information, with the aim of seeking the truth. It is closely associated with such characteristically human activities as philosophy, science, ...
." Natural law theory can also refer to "theories of
ethics
Ethics or moral philosophy is a branch of philosophy that "involves systematizing, defending, and recommending concepts of right and wrong behavior".''Internet Encyclopedia of Philosophy'' The field of ethics, along with aesthetics, concerns m ...
,
theories of politics, theories of
civil law, and theories of
religious morality
The intersections of morality and religion involve the relationship between religious views and morals. It is common for religions to have value frameworks regarding personal behavior meant to guide adherents in determining between right and ...
."
In the Western tradition, it was anticipated by the
pre-Socratics
Pre-Socratic philosophy, also known as early Greek philosophy, is ancient Greek philosophy before Socrates. Pre-Socratic philosophers were mostly interested in cosmology, the beginning and the substance of the universe, but the inquiries of thes ...
, for example in their search for principles that governed the cosmos and human beings. The concept of natural law was documented in
ancient Greek philosophy
Ancient Greek philosophy arose in the 6th century BC, marking the end of the Greek Dark Ages. Greek philosophy continued throughout the Hellenistic period and the period in which Greece and most Greek-inhabited lands were part of the Roman Empire ...
, including
Aristotle
Aristotle (; grc-gre, Ἀριστοτέλης ''Aristotélēs'', ; 384–322 BC) was a Greek philosopher and polymath during the Classical period in Ancient Greece. Taught by Plato, he was the founder of the Peripatetic school of phil ...
, and was referred to in
ancient Roman philosophy
Ancient Roman philosophy was heavily influenced by the ancient Greeks and the schools of Hellenistic philosophy; however, unique developments in philosophical schools of thought occurred during the Roman period as well. Interest in philosophy wa ...
by
Cicero
Marcus Tullius Cicero ( ; ; 3 January 106 BC – 7 December 43 BC) was a Roman statesman, lawyer, scholar, philosopher, and academic skeptic, who tried to uphold optimate principles during the political crises that led to the estab ...
. References to it are also to be found in the
Old
Old or OLD may refer to:
Places
*Old, Baranya, Hungary
*Old, Northamptonshire, England
*Old Street station, a railway and tube station in London (station code OLD)
*OLD, IATA code for Old Town Municipal Airport and Seaplane Base, Old Town, Mai ...
and
New Testament
The New Testament grc, Ἡ Καινὴ Διαθήκη, transl. ; la, Novum Testamentum. (NT) is the second division of the Christian biblical canon. It discusses the teachings and person of Jesus, as well as events in first-century Christ ...
s of the
Bible
The Bible (from Koine Greek , , 'the books') is a collection of religious texts or scriptures that are held to be sacred in Christianity, Judaism, Samaritanism, and many other religions. The Bible is an anthologya compilation of texts of a ...
, and were later expounded upon in the
Middle Ages
In the history of Europe, the Middle Ages or medieval period lasted approximately from the late 5th to the late 15th centuries, similar to the post-classical period of global history. It began with the fall of the Western Roman Empire a ...
by
Christian philosopher
Christian philosophy includes all philosophy carried out by Christians, or in relation to the religion of Christianity.
Christian philosophy emerged with the aim of reconciling science and faith, starting from natural rational explanations wit ...
s such as
Albert the Great
Albertus Magnus (c. 1200 – 15 November 1280), also known as Saint Albert the Great or Albert of Cologne, was a German Dominican friar, philosopher, scientist, and bishop. Later canonised as a Catholic saint, he was known during his life ...
and
Thomas Aquinas
Thomas Aquinas, OP (; it, Tommaso d'Aquino, lit=Thomas of Aquino; 1225 – 7 March 1274) was an Italian Dominican friar and priest who was an influential philosopher, theologian and jurist in the tradition of scholasticism; he is known wi ...
. The
School of Salamanca
The School of Salamanca ( es, Escuela de Salamanca) is the Renaissance of thought in diverse intellectual areas by Spanish theologians, rooted in the intellectual and pedagogical work of Francisco de Vitoria. From the beginning of the 16th cen ...
made notable contributions during the
Renaissance
The Renaissance ( , ) , from , with the same meanings. is a period in European history marking the transition from the Middle Ages to modernity and covering the 15th and 16th centuries, characterized by an effort to revive and surpass ideas ...
.
Although the central ideas of natural law had been part of Christian thought since the Roman Empire, the foundation for natural law as a consistent system was laid by Aquinas, as he synthesised ideas from his predecessors and condensed them into his "Lex Naturalis" (lit. "Natural law"). St. Thomas argues that because human beings have
reason
Reason is the capacity of consciously applying logic by drawing conclusions from new or existing information, with the aim of seeking the truth. It is closely associated with such characteristically human activities as philosophy, science, ...
, and because reason is a spark of the divine (see
image of God
The image of God (; ) is a concept and theological doctrine in Christianity, as well as in Judaism. This concept is a foundational aspect of Christian and Jewish understandings of human nature. It stems from the primary text in Genesis 1:27, which ...
), all human lives are sacred and of infinite value compared to any other created object, meaning all humans are fundamentally equal and bestowed with an intrinsic basic set of rights that no human can remove.
Modern natural law theories took shape in the
Age of Enlightenment
The Age of Enlightenment or the Enlightenment; german: Aufklärung, "Enlightenment"; it, L'Illuminismo, "Enlightenment"; pl, Oświecenie, "Enlightenment"; pt, Iluminismo, "Enlightenment"; es, La Ilustración, "Enlightenment" was an intel ...
, combining inspiration from
Roman law
Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
, Christian
scholastic philosophy, and contemporary concepts such as
social contract
In moral and political philosophy
Political philosophy or political theory is the philosophical study of government, addressing questions about the nature, scope, and legitimacy of public agents and institutions and the relationships betw ...
theory. It was used in challenging the theory of the
divine right of kings
In European Christianity, the divine right of kings, divine right, or God's mandation is a political and religious doctrine of political legitimacy of a monarchy. It stems from a specific metaphysical framework in which a monarch is, before b ...
, and became an alternative justification for the establishment of a social contract, positive law, and
government
A government is the system or group of people governing an organized community, generally a state.
In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is a ...
—and thus legal rights—in the form of
classical republicanism
Classical republicanism, also known as civic republicanism or civic humanism, is a form of republicanism developed in the Renaissance inspired by the governmental forms and writings of classical antiquity, especially such classical writers as Ar ...
. In the early decades of the 21st century, the concept of natural law is closely related to the concept of
natural rights. Indeed, many
philosopher
A philosopher is a person who practices or investigates philosophy. The term ''philosopher'' comes from the grc, φιλόσοφος, , translit=philosophos, meaning 'lover of wisdom'. The coining of the term has been attributed to the Greek th ...
s,
jurist
A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholar, mostly (but not always) with a formal qualification in law and often a legal practitioner. In the Uni ...
s and scholars use natural law synonymously with natural rights ( la,
ius naturale ''Ius naturale'' is Latin for natural right, the laws common to all beings. Roman jurists wondered why the ''ius gentium'' (the laws which applied to foreigners and citizens alike) was in general accepted by all people living in the Empire. Their co ...
), or
natural justice
In English law, natural justice is technical terminology for the rule against bias (''nemo iudex in causa sua'') and the right to a fair hearing (''audi alteram partem''). While the term ''natural justice'' is often retained as a general conc ...
,
though others distinguish between natural law and natural right.
Because of the intersection between natural law and natural rights, natural law has been claimed or attributed as a key component in the
Act of Abjuration
The Act of Abjuration ( nl, Plakkaat van Verlatinghe; es, Acta de Abjuración, lit=placard of abjuration) is the declaration of independence by many of the provinces of the Netherlands from the allegiance to Philip II of Spain, during the Dut ...
(1581) of the
Netherlands
)
, anthem = ( en, "William of Nassau")
, image_map =
, map_caption =
, subdivision_type = Sovereign state
, subdivision_name = Kingdom of the Netherlands
, established_title = Before independence
, established_date = Spanish Netherl ...
, the
Declaration of Independence
A declaration of independence or declaration of statehood or proclamation of independence is an assertion by a polity in a defined territory that it is independent and constitutes a state. Such places are usually declared from part or all of the ...
(1776) of the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, the
Declaration of the Rights of Man and of the Citizen
The Declaration of the Rights of Man and of the Citizen (french: Déclaration des droits de l'homme et du citoyen de 1789, links=no), set by France's National Constituent Assembly in 1789, is a human civil rights document from the French Revolu ...
(1789) of
France
France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of Overseas France, overseas regions and territories in the Americas and the Atlantic Ocean, Atlantic, Pacific Ocean, Pac ...
, the
Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the Human rights, rights and freedoms of all human beings. Drafted by a UN Drafting of the Universal De ...
(1948) of the
United Nations
The United Nations (UN) is an intergovernmental organization whose stated purposes are to maintain international peace and international security, security, develop friendly relations among nations, achieve international cooperation, and be ...
, as well as the
European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
(1953) of the
Council of Europe
The Council of Europe (CoE; french: Conseil de l'Europe, ) is an international organisation founded in the wake of World War II to uphold European Convention on Human Rights, human rights, democracy and the Law in Europe, rule of law in Europe. ...
.
History
Ancient Greece
Plato
Although
Plato
Plato ( ; grc-gre, Πλάτων ; 428/427 or 424/423 – 348/347 BC) was a Greek philosopher born in Athens during the Classical period in Ancient Greece. He founded the Platonist school of thought and the Academy, the first institution ...
did not have an explicit theory of natural law (he rarely used the phrase 'natural law' except in ''
Gorgias
Gorgias (; grc-gre, Γοργίας; 483–375 BC) was an ancient Greek sophist, pre-Socratic philosopher, and rhetorician who was a native of Leontinoi in Sicily. Along with Protagoras, he forms the first generation of Sophists. Several doxogr ...
'' 484 and ''
Timaeus Timaeus (or Timaios) is a Greek name. It may refer to:
* ''Timaeus'' (dialogue), a Socratic dialogue by Plato
*Timaeus of Locri, 5th-century BC Pythagorean philosopher, appearing in Plato's dialogue
*Timaeus (historian) (c. 345 BC-c. 250 BC), Greek ...
'' 83e), his concept of nature, according to
John Wild John Wild may refer to:
*Jack Wild (1952–2006), English actor
*John Benton Wild (1806–1857), Australian politician
*John Caspar Wild (1804–1846), American painter
*John Daniel Wild (1902–1972), American philosopher
*John J. Wild (1914–200 ...
, contains some of the elements found in many natural law theories. According to Plato, we live in an orderly universe. The basis of this orderly universe or nature are the
forms
Form is the shape, visual appearance, or configuration of an object. In a wider sense, the form is the way something happens.
Form also refers to:
*Form (document), a document (printed or electronic) with spaces in which to write or enter data
* ...
, most fundamentally the
Form of the Good
"Form of the Good", or more literally "the idea of the good" () is a concept in the philosophy of Plato. The definition of the Good is a perfect, eternal, and changeless Form, existing outside space and time. It is a Platonic ideal.
Uses in ''T ...
, which Plato describes as "the brightest region of Being." The Form of the Good is the cause of all things, and when it is seen it leads a person to act wisely. In the ''
Symposium
In ancient Greece, the symposium ( grc-gre, συμπόσιον ''symposion'' or ''symposio'', from συμπίνειν ''sympinein'', "to drink together") was a part of a banquet that took place after the meal, when drinking for pleasure was acc ...
'', the Good is closely identified with the Beautiful. In the ''Symposium'', Plato describes how the experience of the Beautiful by
Socrates
Socrates (; ; –399 BC) was a Greek philosopher from Athens who is credited as the founder of Western philosophy and among the first moral philosophers of the ethical tradition of thought. An enigmatic figure, Socrates authored no te ...
enabled him to resist the temptations of wealth and sex. In the ''
Republic
A republic () is a "state in which power rests with the people or their representatives; specifically a state without a monarchy" and also a "government, or system of government, of such a state." Previously, especially in the 17th and 18th c ...
'', the ideal community is "a city which would be established in accordance with nature."
Aristotle
Greek philosophy
Ancient Greek philosophy arose in the 6th century BC, marking the end of the Greek Dark Ages. Greek philosophy continued throughout the Hellenistic period and the period in which Greece and most Greek-inhabited lands were part of the Roman Empir ...
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 would be expected to vary from place to place, but what was "by nature" should be the same everywhere. A "law of nature" would therefore have the flavor more of a paradox than something that obviously existed.
Against the
conventionalism
Conventionalism is the philosophical attitude that fundamental principles of a certain kind are grounded on (explicit or implicit) agreements in society, rather than on external reality. Unspoken rules play a key role in the philosophy's structure ...
that the distinction between nature and custom could engender, Socrates and his philosophic heirs, Plato and
Aristotle
Aristotle (; grc-gre, Ἀριστοτέλης ''Aristotélēs'', ; 384–322 BC) was a Greek philosopher and polymath during the Classical period in Ancient Greece. Taught by Plato, he was the founder of the Peripatetic school of phil ...
, posited the existence of natural justice or natural right (''dikaion physikon'', ''δίκαιον φυσικόν'',
Latin
Latin (, or , ) is a classical language belonging to the Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through the power of the ...
''ius naturale''). Of these, Aristotle is often said to be the father of natural law.
Aristotle's association with natural law may be due to the interpretation given to his works by
Thomas Aquinas
Thomas Aquinas, OP (; it, Tommaso d'Aquino, lit=Thomas of Aquino; 1225 – 7 March 1274) was an Italian Dominican friar and priest who was an influential philosopher, theologian and jurist in the tradition of scholasticism; he is known wi ...
.
But whether Aquinas correctly read Aristotle is in dispute. According to some, Aquinas conflates natural law and natural right, the latter of which Aristotle posits in Book V of the ''
Nicomachean Ethics
The ''Nicomachean Ethics'' (; ; grc, Ἠθικὰ Νικομάχεια, ) is Aristotle's best-known work on ethics, the science of the good for human life, which is the goal or end at which all our actions aim. (I§2) The aim of the inquiry is ...
'' (Book IV of the ''
Eudemian Ethics
The ''Eudemian Ethics'' ( el, Ἠθικὰ Εὐδήμεια; la, Ethica Eudemia or ''De moribus ad Eudemum'') is a work of philosophy by Aristotle. Its primary focus is on ethics, making it one of the primary sources available for study of Ari ...
''). According to this interpretation, Aquinas's influence was such as to affect a number of early translations of these passages in an unfortunate manner, though more recent translations render those more literally. Aristotle notes that
natural justice
In English law, natural justice is technical terminology for the rule against bias (''nemo iudex in causa sua'') and the right to a fair hearing (''audi alteram partem''). While the term ''natural justice'' is often retained as a general conc ...
is a species of political justice, specifically the scheme of
distributive and
corrective justice that would be established under the best political community; 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
Politics (from , ) is the set of activities that are associated with making decisions in groups, or other forms of power relations among individuals, such as the distribution of resources or status. The branch of social science that studies ...
'' that the best regime may not rule by law at all.
The best evidence of Aristotle's having thought there was a natural law comes from the ''
Rhetoric
Rhetoric () is the art of persuasion, which along with grammar and logic (or dialectic), is one of the three ancient arts of discourse. Rhetoric aims to study the techniques writers or speakers utilize to inform, persuade, or motivate parti ...
'', 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. Specifically, he quotes
Sophocles
Sophocles (; grc, Σοφοκλῆς, , Sophoklễs; 497/6 – winter 406/5 BC)Sommerstein (2002), p. 41. is one of three ancient Greek tragedians, at least one of whose plays has survived in full. His first plays were written later than, or co ...
and Empedocles:
Universal law
In law and ethics, universal law or universal principle refers as concepts of legal legitimacy actions, whereby those principles and rules for governing human beings' conduct which are most universal in their acceptability, their applicability, ...
is the law of Nature. For there really is, as every one to some extent divines, a natural justice and injustice that is binding on all men, even on those who have no association or covenant with each other. It is this that Sophocles' Antigone
In Greek mythology, Antigone ( ; Ancient Greek: Ἀντιγόνη) is the daughter of Oedipus and either his mother Jocasta or, in another variation of the myth, Euryganeia. She is a sister of Polynices, Eteocles, and Ismene.Roman, L., & Roma ...
clearly means when she says that the burial of Polyneices was a just act in spite of the prohibition: she means that it was just by nature:
:"Not of to-day or yesterday it is,
:But lives eternal: none can date its birth."
And so Empedocles
Empedocles (; grc-gre, Ἐμπεδοκλῆς; , 444–443 BC) was a Greek pre-Socratic philosopher and a native citizen of Akragas, a Greek city in Sicily. Empedocles' philosophy is best known for originating the cosmogonic theory of the fo ...
, when he bids us kill no living creature, he is saying that to do this is not just for some people, while unjust for others:
:"Nay, but, an all-embracing law, through the realms of the sky
:Unbroken it stretcheth, and over the earth's immensity."
Some critics believe that the context of this remark 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.
Moreover, they claim that Aristotle considered two of the three candidates for a universally valid, natural law provided in this passage to be wrong.
Aristotle's paternity of natural law tradition is consequently disputed.
Stoic natural law
The development of this tradition of
natural justice
In English law, natural justice is technical terminology for the rule against bias (''nemo iudex in causa sua'') and the right to a fair hearing (''audi alteram partem''). While the term ''natural justice'' is often retained as a general conc ...
into one of natural law is usually attributed to the
Stoics
Stoicism is a school of Hellenistic philosophy founded by Zeno of Citium in Athens in the early 3rd century BCE. It is a philosophy of personal virtue ethics informed by its system of logic and its views on the natural world, asserting that th ...
. The rise of natural law as a universal system coincided with the rise of large empires and kingdoms in the Greek world. Whereas the "higher" law that Aristotle suggested one could appeal to was emphatically
natural
Nature, in the broadest sense, is the physical world or universe. "Nature" can refer to the phenomena of the physical world, and also to life in general. The study of nature is a large, if not the only, part of science. Although humans are p ...
, in contradistinction to being the result of
divine
Divinity or the divine are things that are either related to, devoted to, or proceeding from a deity.[divine< ...](_blank)
positive
Positive is a property of positivity and may refer to:
Mathematics and science
* Positive formula, a logical formula not containing negation
* Positive number, a number that is greater than 0
* Plus sign, the sign "+" used to indicate a posi ...
legislation
Legislation is the process or result of enrolled bill, enrolling, enactment of a bill, enacting, or promulgation, promulgating laws by a legislature, parliament, or analogous Government, governing body. Before an item of legislation becomes law i ...
, the Stoic natural law was indifferent to either the natural or divine source of the law: the Stoics asserted the existence of a rational and purposeful order to the universe (a
divine
Divinity or the divine are things that are either related to, devoted to, or proceeding from a deity.[divine< ...](_blank)
or
eternal law
Thomas Aquinas, OP (; it, Tommaso d'Aquino, lit=Thomas of Aquino; 1225 – 7 March 1274) was an Italian Dominican friar and priest who was an influential philosopher, theologian and jurist in the tradition of scholasticism; he is known wit ...
), and the means by which a rational being lived in accordance with this order was the natural law, which inspired actions that accorded with virtue.
As the English historian A. J. Carlyle (1861–1943) notes:
There is no change in political theory so startling in its completeness as the change from the theory of Aristotle to the later philosophical view represented by Cicero and Seneca ... We think that this cannot be better exemplified than with regard to the theory of the equality of human nature." Charles H. McIlwain likewise observes that "the idea of the equality of men is the most profound contribution of the Stoics to political thought" and that "its greatest influence is in the changed conception of law that in part resulted from it.
Natural law first appeared among the stoics who believed that God is everywhere and in everyone (see
classical pantheism). According to this belief, within humans there is a "divine spark" which helps them to live in accordance with nature. The stoics felt that there was a way in which the universe had been designed, and that natural law helped us to harmonise with this.
Ancient Rome
In the Fifth Book of his History of the Roman Republic
Livy
Titus Livius (; 59 BC – AD 17), known in English as Livy ( ), was a Ancient Rome, Roman historian. He wrote a monumental history of Rome and the Roman people, titled , covering the period from the earliest legends of Rome before the traditiona ...
puts a formulation of the Natural Law into the mouth of
Marcus Furius Camillus
Marcus Furius Camillus (; c. 446 – 365 BC) was a Roman soldier and statesman of the patrician class. According to Livy and Plutarch, Camillus triumphed four times, was five times dictator, and was honoured with the title of ''Second Founder ...
during the siege of the Falerii "You, villain, have not come with your villainous offer to a nation or a commander like yourself. Between us and the Faliscans there is no fellowship based on a formal compact as between man and man, but the fellowship which is based on natural instincts exists between us, and will continue to do so. There are rights of war as there are rights of peace, and we have learnt to wage our wars with justice no less than with courage. We do not use our weapons against those of an age which is spared even in the capture of cities, but against those who are armed as we are, and who without any injury or provocation from us attacked the Roman camp at Veii. These men you, as far as you could, have vanquished by an unprecedented act of villainy; I shall vanquish them as I vanquished Veii, by Roman arts, by courage and strategy and force of arms."
Cicero
Marcus Tullius Cicero ( ; ; 3 January 106 BC – 7 December 43 BC) was a Roman statesman, lawyer, scholar, philosopher, and academic skeptic, who tried to uphold optimate principles during the political crises that led to the estab ...
wrote in his ''
De Legibus
The ''De Legibus'' (''On the Laws'') is a dialogue written by Marcus Tullius Cicero during the last years of the Roman Republic. It bears the same name as Plato's famous dialogue, '' The Laws''. Unlike his previous work ''De re publica,'' in wh ...
'' that both justice and law originate from what nature has given to humanity, from what the human mind embraces, from the function of humanity, and from what serves to unite humanity. For Cicero, natural law obliges us to contribute to the general good of the larger society.
The purpose of positive laws is to provide for "the safety of citizens, the preservation of states, and the tranquility and happiness of human life." In this view, "wicked and unjust statutes" are "anything but 'laws,'" because "in the very definition of the term 'law' there
inheres the idea and principle of choosing what is just and true." Law, for Cicero, "ought to be a reformer of vice and an incentive to virtue." Cicero expressed the view that "the virtues which we ought to cultivate, always tend to our own happiness, and that the best means of promoting them consists in living with men in that perfect union and charity which are cemented by mutual benefits."
In ''
De Re Publica
''De re publica'' (''On the Commonwealth''; see below) is a dialogue on Roman politics by Cicero, written in six books between 54 and 51 BC. The work does not survive in a complete state, and large parts are missing. The surviving sections derive ...
'', he writes:
Cicero influenced the discussion of natural law for many centuries to come, up through the era of the American Revolution. The jurisprudence of the
Roman Empire
The Roman Empire ( la, Imperium Romanum ; grc-gre, Βασιλεία τῶν Ῥωμαίων, Basileía tôn Rhōmaíōn) was the post-Republican period of ancient Rome. As a polity, it included large territorial holdings around the Mediterr ...
was rooted in Cicero, who held "an extraordinary grip ... upon the imagination of posterity" as "the medium for the propagation of those ideas which informed the law and institutions of the empire." Cicero's conception of natural law "found its way to later centuries notably through the writings of
Saint Isidore of Seville and the
Decretum of Gratian
The ''Decretum Gratiani'', also known as the ''Concordia discordantium canonum'' or ''Concordantia discordantium canonum'' or simply as the ''Decretum'', is a collection of canon law compiled and written in the 12th century as a legal textbook b ...
."
Thomas Aquinas
Thomas Aquinas, OP (; it, Tommaso d'Aquino, lit=Thomas of Aquino; 1225 – 7 March 1274) was an Italian Dominican friar and priest who was an influential philosopher, theologian and jurist in the tradition of scholasticism; he is known wi ...
, in his summary of medieval natural law, quoted Cicero's statement that "nature" and "custom" were the sources of a society's laws.
The Renaissance Italian historian
Leonardo Bruni
Leonardo Bruni (or Leonardo Aretino; c. 1370 – March 9, 1444) was an Italian humanist, historian and statesman, often recognized as the most important humanist historian of the early Renaissance. He has been called the first modern historian. H ...
praised Cicero as the person "who carried philosophy from Greece to Italy, and nourished it with the golden river of his eloquence." The legal culture of Elizabethan England, exemplified by
Sir Edward Coke
''Sir'' is a formal honorific address in English for men, derived from Sire in the High Middle Ages. Both are derived from the old French "Sieur" (Lord), brought to England by the French-speaking Normans, and which now exist in French only as p ...
, was "steeped in Ciceronian rhetoric." The Scottish moral philosopher
Francis Hutcheson, as a student at Glasgow, "was attracted most by Cicero, for whom he always professed the greatest admiration."
More generally in eighteenth-century Great Britain, Cicero's name was a household word among educated people.
Likewise, "in the admiration of early Americans Cicero took pride of place as orator, political theorist, stylist, and moralist."
The British polemicist
Thomas Gordon "incorporated Cicero into the radical ideological tradition that travelled from the mother country to the colonies in the course of the eighteenth century and decisively shaped early American political culture." Cicero's description of the immutable, eternal, and universal natural law was quoted by
Burlamaqui
Jean-Jacques Burlamaqui (; 24 June or 13 July 1694 – 3 April 1748) was a Genevan legal and political theorist who popularised a number of ideas propounded by other thinkers.
Life
Born in Geneva, Republic of Geneva, into a Calvinist family (des ...
and later by the American revolutionary legal scholar
James Wilson James Wilson may refer to:
Politicians and government officials
Canada
*James Wilson (Upper Canada politician) (1770–1847), English-born farmer and political figure in Upper Canada
* James Crocket Wilson (1841–1899), Canadian MP from Quebe ...
. Cicero became
John Adams
John Adams (October 30, 1735 – July 4, 1826) was an American statesman, attorney, diplomat, writer, and Founding Fathers of the United States, Founding Father who served as the second president of the United States from 1797 to 1801. Befor ...
's "foremost model of public service, republican virtue, and forensic eloquence." Adams wrote of Cicero that "as all the ages of the world have not produced a greater statesman and philosopher united in the same character, his authority should have great weight."
Thomas Jefferson
Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Fathers of the United States, Founding Father who served as the third president of the United States from 18 ...
"first encountered Cicero as a schoolboy while learning Latin, and continued to read his letters and discourses throughout his life. He admired him as a patriot, valued his opinions as a moral philosopher, and there is little doubt that he looked upon Cicero's life, with his love of study and aristocratic country life, as a model for his own." Jefferson described Cicero as "the father of eloquence and philosophy."
Christianity
Paul's
Epistle to the Romans
The Epistle to the Romans is the sixth book in the New Testament, and the longest of the thirteen Pauline epistles. Biblical scholars agree that it was composed by Paul the Apostle to explain that salvation is offered through the gospel of J ...
is generally considered the Scriptural authority for the Christian idea of natural law as something that was
endowed
A financial endowment is a legal structure for managing, and in many cases indefinitely perpetuating, a pool of financial, real estate, or other investments for a specific purpose according to the will of its founders and donors. Endowments are of ...
in all men, contrasted with an idea of law as something
revealed
Reveal or Revealed may refer to:
People
* Reveal (rapper) (born 1983), member of the British hip hop group Poisonous Poets
* James L. Reveal (1941–2015), American botanist
Arts, entertainment, and media Literature
* ''Revealed'', a 2013 novel ...
(for example, the
law revealed to Moses by God).
"For when the Gentiles, which have not the law, do by nature the things contained in the law, these, having not the law, are a law unto themselves: Which shew the work of the law written in their hearts, their conscience also bearing witness, and their thoughts the meanwhile accusing or else excusing one another."
The intellectual historian A. J. Carlyle has commented on this passage, "There can be little doubt that St Paul's words imply some conception analogous to the 'natural law' in
Cicero
Marcus Tullius Cicero ( ; ; 3 January 106 BC – 7 December 43 BC) was a Roman statesman, lawyer, scholar, philosopher, and academic skeptic, who tried to uphold optimate principles during the political crises that led to the estab ...
, a law written in men's hearts, recognized by man's reason, a law distinct from the positive law of any State, or from what St Paul recognized as
the revealed law of God. It is in this sense that St Paul's words are taken by the Fathers of the fourth and fifth centuries like
St Hilary of Poitiers,
St Ambrose
Ambrose of Milan ( la, Aurelius Ambrosius; ), venerated as Saint Ambrose, ; lmo, Sant Ambroeus . was a theologian and statesman who served as Bishop of Milan from 374 to 397. He expressed himself prominently as a public figure, fiercely promot ...
, and
St Augustine
Augustine of Hippo ( , ; la, Aurelius Augustinus Hipponensis; 13 November 354 – 28 August 430), also known as Saint Augustine, was a theologian and philosopher of Berber origin and the bishop of Hippo Regius in Numidia, Roman North Afr ...
, and there seems no reason to doubt the correctness of their interpretation."
Because of its origins in the Old Testament, early
Church Fathers
The Church Fathers, Early Church Fathers, Christian Fathers, or Fathers of the Church were ancient and influential Christian theologians and writers who established the intellectual and doctrinal foundations of Christianity. The historical per ...
, especially those in the
West
West or Occident is one of the four cardinal directions or points of the compass. It is the opposite direction from east and is the direction in which the Sunset, Sun sets on the Earth.
Etymology
The word "west" is a Germanic languages, German ...
, saw natural law as part of the natural foundation of
Christianity
Christianity is an Abrahamic monotheistic religion based on the life and teachings of Jesus of Nazareth. It is the world's largest and most widespread religion with roughly 2.38 billion followers representing one-third of the global pop ...
. The most notable among these was
Augustine of Hippo
Augustine of Hippo ( , ; la, Aurelius Augustinus Hipponensis; 13 November 354 – 28 August 430), also known as Saint Augustine, was a theologian and philosopher of Berber origin and the bishop of Hippo Regius in Numidia, Roman North Af ...
, who equated natural law with humanity's
prelapsarian state; as such, a life according to unbroken human nature was no longer possible and persons needed instead to seek healing and salvation through the
divine law
Divine law is any body of law that is perceived as deriving from a transcendent source, such as the will of God or godsin contrast to man-made law or to secular law. According to Angelos Chaniotis and Rudolph F. Peters, divine laws are typically ...
and
grace
Grace may refer to:
Places United States
* Grace, Idaho, a city
* Grace (CTA station), Chicago Transit Authority's Howard Line, Illinois
* Little Goose Creek (Kentucky), location of Grace post office
* Grace, Carroll County, Missouri, an uninco ...
of
Jesus Christ
Jesus, likely from he, יֵשׁוּעַ, translit=Yēšūaʿ, label=Hebrew/Aramaic ( AD 30 or 33), also referred to as Jesus Christ or Jesus of Nazareth (among other names and titles), was a first-century Jewish preacher and religious ...
. Augustine was also among the earliest to examine the legitimacy of the laws of man, and attempt to define the boundaries of what laws and rights occur naturally based on wisdom and conscience, instead of being arbitrarily imposed by mortals, and if people are
obligated to obey laws that are unjust.
The natural law was inherently teleological as well as deontological. For Christians, natural law is how human beings manifest the divine image in their life. This mimicry of
God
In monotheism, monotheistic thought, God is usually viewed as the supreme being, creator deity, creator, and principal object of Faith#Religious views, faith.Richard Swinburne, Swinburne, R.G. "God" in Ted Honderich, Honderich, Ted. (ed)''The Ox ...
's own life is impossible to accomplish except by means of the power of grace. Thus, whereas deontological systems merely require certain duties be performed, Christianity explicitly states that no one can, in fact, perform any duties if grace is lacking. For Christians, natural law flows not from divine commands, but from the fact that humanity is made in God's image, humanity is empowered by God's grace. Living the natural law is how humanity displays the gifts of life and grace, the gifts of all that is good. Consequences are in God's hands, consequences are generally not within human control, thus in natural law, actions are judged by three things: (1) the person's intent, (2) the circumstances of the act and (3) the nature of the act. The apparent good or evil consequence resulting from the moral act is not relevant to the act itself. The specific content of the natural law is therefore determined by how each person's acts mirror God's internal life of love. Insofar as one lives the natural law, temporal satisfaction may or may not be attained, but salvation will be attained. The
state
State may refer to:
Arts, entertainment, and media Literature
* ''State Magazine'', a monthly magazine published by the U.S. Department of State
* ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States
* ''Our S ...
, in being bound by the natural law, is conceived as an institution whose purpose is to assist in bringing its subjects to true happiness. True happiness derives from living in harmony with the mind of God as an image of the living God.
After the
Protestant Reformation
The Reformation (alternatively named the Protestant Reformation or the European Reformation) was a major movement within Western Christianity in 16th-century Europe that posed a religious and political challenge to the Catholic Church and in ...
, some
Protestant denominations
This is a list of the largest Protestant denominations. It aims to include sizable Protestant communions, federations, alliances, councils, fellowships, and other denominational organisations in the world and provides information regarding the me ...
maintained parts of the Catholic concept of natural law. The
English
English usually refers to:
* English language
* English people
English may also refer to:
Peoples, culture, and language
* ''English'', an adjective for something of, from, or related to England
** English national ide ...
theologian
Theology is the systematic study of the nature of the divine and, more broadly, of religious belief. It is taught as an academic discipline, typically in universities and seminaries. It occupies itself with the unique content of analyzing the ...
Richard Hooker
Richard Hooker (25 March 1554 – 2 November 1600) was an English priest in the Church of England and an influential theologian.The Oxford Dictionary of the Christian Church by F. L. Cross (Editor), E. A. Livingstone (Editor) Oxford University ...
from the
Church of England
The Church of England (C of E) is the established Christian church in England and the mother church of the international Anglican Communion. It traces its history to the Christian church recorded as existing in the Roman province of Britain ...
adapted
Thomistic
Thomism is the philosophical and theological school that arose as a legacy of the work and thought of Thomas Aquinas (1225–1274), the Dominican philosopher, theologian, and Doctor of the Church. In philosophy, Aquinas' disputed questions ...
notions of natural law to
Anglicanism
Anglicanism is a Western Christian tradition that has developed from the practices, liturgy, and identity of the Church of England following the English Reformation, in the context of the Protestant Reformation in Europe. It is one of the ...
five principles: to live, to learn, to reproduce, to worship God, and to live in an ordered society.
Catholic natural law jurisprudence
Catholic counties in the tradition of the early Christian law and in the twelfth century,
Gratian
Gratian (; la, Gratianus; 18 April 359 – 25 August 383) was emperor of the Western Roman Empire from 367 to 383. The eldest son of Valentinian I, Gratian accompanied his father on several campaigns along the Rhine and Danube frontiers and wa ...
equated the natural law with divine law.
Albertus Magnus
Albertus Magnus (c. 1200 – 15 November 1280), also known as Saint Albert the Great or Albert of Cologne, was a German Dominican friar, philosopher, scientist, and bishop. Later canonised as a Catholic saint, he was known during his life ...
would address the subject a century later, and his pupil, St.
Thomas Aquinas
Thomas Aquinas, OP (; it, Tommaso d'Aquino, lit=Thomas of Aquino; 1225 – 7 March 1274) was an Italian Dominican friar and priest who was an influential philosopher, theologian and jurist in the tradition of scholasticism; he is known wi ...
, in his ''
Summa Theologica
The ''Summa Theologiae'' or ''Summa Theologica'' (), often referred to simply as the ''Summa'', is the best-known work of Thomas Aquinas (1225–1274), a scholasticism, scholastic theologian and Doctor of the Church. It is a compendium of all ...
''
I-II qq. 90–106, restored Natural Law to its independent state, asserting natural law as the rational creature's participation in the eternal law. Yet, since human reason could not fully comprehend the
Eternal law
Thomas Aquinas, OP (; it, Tommaso d'Aquino, lit=Thomas of Aquino; 1225 – 7 March 1274) was an Italian Dominican friar and priest who was an influential philosopher, theologian and jurist in the tradition of scholasticism; he is known wit ...
, it needed to be supplemented by revealed
Divine law
Divine law is any body of law that is perceived as deriving from a transcendent source, such as the will of God or godsin contrast to man-made law or to secular law. According to Angelos Chaniotis and Rudolph F. Peters, divine laws are typically ...
. (See also
Biblical law in Christianity Biblical law refers to the legal aspects of the Bible, the holy scriptures of Judaism and Christianity.
Judaism
* Law of Moses
* Mitzvah, divine commandment
** The Ten Commandments
** 613 commandments
* Seven Laws of Noah, laws applicable to all o ...
.) Meanwhile, Aquinas taught that all human or positive laws were to be judged by their conformity to the natural law. An unjust law is not a law, in the full sense of the word. It retains merely the 'appearance' of law insofar as it is duly constituted and enforced in the same way a just law is, but is itself a 'perversion of law.' 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 those laws meant in the first place. This principle laid the seed for possible societal tension with reference to tyrants.
The
Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
holds the view of natural law introduced by
Albertus Magnus
Albertus Magnus (c. 1200 – 15 November 1280), also known as Saint Albert the Great or Albert of Cologne, was a German Dominican friar, philosopher, scientist, and bishop. Later canonised as a Catholic saint, he was known during his life ...
and elaborated by
Thomas Aquinas
Thomas Aquinas, OP (; it, Tommaso d'Aquino, lit=Thomas of Aquino; 1225 – 7 March 1274) was an Italian Dominican friar and priest who was an influential philosopher, theologian and jurist in the tradition of scholasticism; he is known wi ...
, particularly in his ''
Summa Theologiae
The ''Summa Theologiae'' or ''Summa Theologica'' (), often referred to simply as the ''Summa'', is the best-known work of Thomas Aquinas (1225–1274), a scholastic theologian and Doctor of the Church. It is a compendium of all of the main t ...
'', and often as filtered through the
School of Salamanca
The School of Salamanca ( es, Escuela de Salamanca) is the Renaissance of thought in diverse intellectual areas by Spanish theologians, rooted in the intellectual and pedagogical work of Francisco de Vitoria. From the beginning of the 16th cen ...
. This view is also shared by some
Protestant
Protestantism is a Christian denomination, branch of Christianity that follows the theological tenets of the Reformation, Protestant Reformation, a movement that began seeking to reform the Catholic Church from within in the 16th century agai ...
s, and was delineated by
Anglican
Anglicanism is a Western Christian tradition that has developed from the practices, liturgy, and identity of the Church of England following the English Reformation, in the context of the Protestant Reformation in Europe. It is one of th ...
writer
C. S. Lewis
Clive Staples Lewis (29 November 1898 – 22 November 1963) was a British writer and Anglican lay theologian. He held academic positions in English literature at both Oxford University (Magdalen College, 1925–1954) and Cambridge Univers ...
in his works ''
Mere Christianity
''Mere Christianity'' is a Christian apologetical book by the British author C. S. Lewis. It was adapted from a series of BBC radio talks made between 1941 and 1944, originally published as three separate volumes: ''Broadcast Talks'' (1942), ' ...
'' and ''
The Abolition of Man
''The Abolition of Man'' is a 1943 book by C. S. Lewis. Subtitled "Reflections on education with special reference to the teaching of English in the upper forms of schools", it uses that as a starting point for a defense of objective value and natu ...
''.
The Catholic Church understands human beings to consist of body and mind, the physical and the non-physical (or
soul
In many religious and philosophical traditions, there is a belief that a soul is "the immaterial aspect or essence of a human being".
Etymology
The Modern English noun ''soul'' is derived from Old English ''sāwol, sāwel''. The earliest attes ...
perhaps), and that the two are inextricably linked. Humans are capable of discerning the difference between
good and evil
In religion, ethics, philosophy, and psychology "good and evil" is a very common dichotomy. In cultures with Manichaean and Abrahamic religious influence, evil is perceived as the dualistic antagonistic opposite of good, in which good shoul ...
because they have a
conscience
Conscience is a cognitive process that elicits emotion and rational associations based on an individual's moral philosophy or value system. Conscience stands in contrast to elicited emotion or thought due to associations based on immediate sens ...
. There are many manifestations of the good that we can pursue. Some, like
procreation
Reproduction (or procreation or breeding) is the biological process by which new individual organisms – "offspring" – are produced from their "parent" or parents. Reproduction is a fundamental feature of all known life; each individual org ...
, 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 Thomas 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." 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.
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 humanity 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 humans as rational animals (i.e., does not support self-preservation).
* Theft is wrong because it destroys social relations, and humans are by nature social animals (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 the cardinal or theological virtues.
Cardinal virtues
The cardinal virtues are four virtues of mind and character in both classical philosophy and Christian theology. They are prudence, justice, fortitude, and temperance. They form a virtue theory of ethics. The term ''cardinal'' comes from the ...
are acquired through reason applied to nature; they are:
#
Prudence
Prudence ( la, prudentia, Contraction (grammar), contracted from meaning "seeing ahead, sagacity") is the ability to govern and discipline oneself by the use of reason. It is classically considered to be a virtue, and in particular one of th ...
#
Justice
Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes "deserving" being impacted upon by numerous fields, with many differing viewpoints and perspective ...
#
Temperance
Temperance may refer to:
Moderation
*Temperance movement, movement to reduce the amount of alcohol consumed
*Temperance (virtue), habitual moderation in the indulgence of a natural appetite or passion
Culture
*Temperance (group), Canadian danc ...
#
Fortitude
The
theological virtues
Theological virtues are virtues associated in Christian theology and philosophy with salvation resulting from the grace of God. Virtues are traits or qualities which dispose one to conduct oneself in a morally good manner. Traditionally they have ...
are:
#
Faith
Faith, derived from Latin ''fides'' and Old French ''feid'', is confidence or trust in a person, thing, or In the context of religion, one can define faith as "belief in God or in the doctrines or teachings of religion".
Religious people often ...
#
Hope
Hope is an optimistic state of mind that is based on an expectation of positive outcomes with respect to events and circumstances in one's life or the world at large.
As a verb, its definitions include: "expect with confidence" and "to cherish ...
#
Charity
Charity may refer to:
Giving
* Charitable organization or charity, a non-profit organization whose primary objectives are philanthropy and social well-being of persons
* Charity (practice), the practice of being benevolent, giving and sharing
* Ch ...
According to Aquinas, to lack any of these virtues is to lack the ability to make a moral choice. For example, consider a person who possesses the virtues of justice, prudence, and fortitude, yet lacks temperance. Due to their lack of self-control and desire for pleasure, despite their good intentions, they will find themself swaying from the moral path.
In the 16th century, the
School of Salamanca
The School of Salamanca ( es, Escuela de Salamanca) is the Renaissance of thought in diverse intellectual areas by Spanish theologians, rooted in the intellectual and pedagogical work of Francisco de Vitoria. From the beginning of the 16th cen ...
(
Francisco Suárez,
Francisco de Vitoria
Francisco de Vitoria ( – 12 August 1546; also known as Francisco de Victoria) was a Spanish Roman Catholic philosophy, philosopher, theology, theologian, and jurist of Renaissance Spain. He is the founder of the tradition in philosophy known ...
, etc.) further developed a
philosophy of natural law, and major interpretations were provided by 20th century philosophers such as
Jacques Maritain
Jacques Maritain (; 18 November 1882 – 28 April 1973) was a French Catholic philosopher. Raised Protestant, he was agnostic before converting to Catholicism in 1906. An author of more than 60 books, he helped to revive Thomas Aquinas fo ...
.
The
Catechism of the Catholic Church
The ''Catechism of the Catholic Church'' ( la, Catechismus Catholicae Ecclesiae; commonly called the ''Catechism'' or the ''CCC'') is a catechism promulgated for the Catholic Church by Pope John Paul II in 1992. It aims to summarize, in book for ...
describes it in the following way: "The natural law expresses the original moral sense which enables man to discern by reason the good and the evil, the truth and the lie: 'The natural law is written and engraved in the soul of each and every man, because it is human reason ordaining him to do good and forbidding him to sin . . . But this command of human reason would not have the force of law if it were not the voice and interpreter of a higher reason to which our spirit and our freedom must be submitted.
The natural law consists, for the Catholic Church, of one supreme and universal principle from which are derived all our
natural moral obligations or duties. Thomas Aquinas resumes the various ideas of Catholic moral thinkers about what this principle is: since good is what primarily falls under the apprehension of the practical reason, the supreme principle of moral action must have the good as its central idea, and therefore the supreme principle is that good is to be done and evil avoided.
Islamic natural law
Abū Rayhān al-Bīrūnī
Abu Rayhan Muhammad ibn Ahmad al-Biruni (973 – after 1050) commonly known as al-Biruni, was a Khwarazmian Iranian in scholar and polymath during the Islamic Golden Age. He has been called variously the "founder of Indology", "Father of Co ...
, a
medieval scholar,
scientist
A scientist is a person who conducts Scientific method, scientific research to advance knowledge in an Branches of science, area of the natural sciences.
In classical antiquity, there was no real ancient analog of a modern scientist. Instead, ...
, and
polymath
A polymath ( el, πολυμαθής, , "having learned much"; la, homo universalis, "universal human") is an individual whose knowledge spans a substantial number of subjects, known to draw on complex bodies of knowledge to solve specific pro ...
, understood "natural law" as the survival of the fittest. He argued that the
antagonism between
human
Humans (''Homo sapiens'') are the most abundant and widespread species of primate, characterized by bipedalism and exceptional cognitive skills due to a large and complex brain. This has enabled the development of advanced tools, culture, ...
beings can be overcome only through a
divine law
Divine law is any body of law that is perceived as deriving from a transcendent source, such as the will of God or godsin contrast to man-made law or to secular law. According to Angelos Chaniotis and Rudolph F. Peters, divine laws are typically ...
, which he believed to have been sent through
prophets
In religion, a prophet or prophetess is an individual who is regarded as being in contact with a divine being and is said to speak on behalf of that being, serving as an intermediary with humanity by delivering messages or teachings from the s ...
. This is also said to be the general position of the
Ashari
Ashʿarī theology or Ashʿarism (; ar, الأشعرية: ) is one of the main Sunnī schools of Islamic theology, founded by the Muslim scholar, Shāfiʿī jurist, reformer, and scholastic theologian Abū al-Ḥasan al-Ashʿarī in the ...
school, the largest school of Sunni theology,
[ (original in French.)] as well as
Ibn Hazm
Abū Muḥammad ʿAlī ibn Aḥmad ibn Saʿīd ibn Ḥazm ( ar, أبو محمد علي بن احمد بن سعيد بن حزم; also sometimes known as al-Andalusī aẓ-Ẓāhirī; 7 November 994 – 15 August 1064Ibn Hazm. ' (Preface). Tr ...
. Conceptualized thus, all "laws" are viewed as originating from
subjective attitudes actuated by cultural conceptions and individual preferences, and so the notion of "divine revelation" is justified as some kind of "divine intervention" that replaces human
positive
Positive is a property of positivity and may refer to:
Mathematics and science
* Positive formula, a logical formula not containing negation
* Positive number, a number that is greater than 0
* Plus sign, the sign "+" used to indicate a posi ...
laws, which are criticized as being relative, with a single divine positive law. This, however, also entails that anything may be included in "the divine law" as it would in "human laws," but unlike the latter, "God's law" is seen as binding regardless of the nature of the commands by virtue of "God's might": since God is not subject to human laws and conventions, He may command what He wills just as He may do what He wills.
The
Maturidi
Māturīdī theology or Māturīdism ( ar, الماتريدية: ''al-Māturīdiyyah'') is one of the main Sunnī schools of Islamic theology, founded by the Persian Muslim scholar, Ḥanafī jurist, reformer (''Mujaddid''), and scholastic th ...
school, the second-largest school of Sunni theology, as well as the
Mu'tazilites
Muʿtazila ( ar, المعتزلة ', English: "Those Who Withdraw, or Stand Apart", and who called themselves ''Ahl al-ʿAdl wa al-Tawḥīd'', English: "Party of ivineJustice and Oneness f God); was an Islamic group that appeared in early Islamic ...
, posits the existence of a form of natural, or "objective," law that humans can comprehend.
Abu Mansur al-Maturidi
Abū Manṣūr Muḥammad b. Muḥammad b. Maḥmūd al-Ḥanafī al-Māturīdī al-Samarḳandī ( fa, أبو منصور محمد بن محمد بن محمود الماتریدي السمرقندي الحنفي; 853–944 CE), often referred t ...
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, he believes, is known to be evil by reason alone due to people's working hard for their property. Similarly, killing, fornication, and drunkenness are all "discernible evils" that the human mind could know of according to al-Maturidi. Likewise,
Averroes
Ibn Rushd ( ar, ; full name in ; 14 April 112611 December 1198), often Latinized as Averroes ( ), was an
Andalusian polymath and jurist who wrote about many subjects, including philosophy, theology, medicine, astronomy, physics, psycholog ...
(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
''Maqasid'' ( ar, مقاصد, lit. goals, purposes) or ''maqāṣid al-sharīʿa'' (goals or objectives of ''sharia'') is an Islamic legal doctrine. Together with another related classical doctrine, '' maṣlaḥa'' (welfare or public interest), i ...
or higher intents of the Islamic
sharia
Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the H ...
, or the protection of religion, life, property, offspring, and reason. His Aristotelian commentaries also influenced the subsequent
Averroist
Averroism refers to a school of medieval philosophy based on the application of the works of 12th-century Andalusian philosopher Averroes, (known in his time in Arabic as ابن رشد, ibn Rushd, 1126–1198) a commentator on Aristotle, in 13th ...
movement and the writings of
Thomas Aquinas
Thomas Aquinas, OP (; it, Tommaso d'Aquino, lit=Thomas of Aquino; 1225 – 7 March 1274) was an Italian Dominican friar and priest who was an influential philosopher, theologian and jurist in the tradition of scholasticism; he is known wi ...
.
Ibn Qayyim Al-Jawziyya
Shams al-Dīn Abū ʿAbd Allāh Muḥammad ibn Abī Bakr ibn Ayyūb al-Zurʿī l-Dimashqī l-Ḥanbalī (29 January 1292–15 September 1350 CE / 691 AH–751 AH), commonly known as Ibn Qayyim al-Jawziyya ("The son of the principal of he school ...
also posited that human reason could discern between "great sins" and "good deeds." Nonetheless, he, like
Ibn Taymiyah
Ibn Taymiyyah (January 22, 1263 – September 26, 1328; ar, ابن تيمية), birth name Taqī ad-Dīn ʾAḥmad ibn ʿAbd al-Ḥalīm ibn ʿAbd al-Salām al-Numayrī al-Ḥarrānī ( ar, تقي الدين أحمد بن عبد الحليم ...
, emphasized the authority of "divine revelation" and asserted that it must be followed even if it "seems" to contradict human reason, though he stressed that most, if not all, of "God's commands" are both sensible (that is, rationalizable) and advantageous to humans in both "this life" and "the hereafter."
The concept of ''
Istislah
''Istislah'' (Arabic استصلاح "to deem proper") is a method employed by Islamic jurists to solve problems that find no clear answer in sacred religious texts. It is related to the term مصلحة ''Maslaha'', or "public interest" (both words ...
'' in
Islamic law
Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the ...
bears some similarities to the natural law tradition in the West, as exemplified by
Thomas Aquinas
Thomas Aquinas, OP (; it, Tommaso d'Aquino, lit=Thomas of Aquino; 1225 – 7 March 1274) was an Italian Dominican friar and priest who was an influential philosopher, theologian and jurist in the tradition of scholasticism; he is known wi ...
. However, whereas natural law deems good what is self-evidently good, according as it tends towards the fulfillment of the person, ''istislah'' typically calls good whatever is related to one of five "basic goods." Many jurists, theologians, and philosophers attempted to abstract these "basic and fundamental goods" from legal precepts.
Al-Ghazali
Al-Ghazali ( – 19 December 1111; ), full name (), and known in Persian-speaking countries as Imam Muhammad-i Ghazali (Persian: امام محمد غزالی) or in Medieval Europe by the Latinized as Algazelus or Algazel, was a Persian polymat ...
, for instance, defined them as religion, life, reason, lineage, and property, while others add "honor" also.
Brehon law
Early Irish law, An Senchus Mor (The Great Tradition) mentions in a number of places ''recht aicned'' or natural law. This is a concept predating European legal theory, and reflects a type of law that is universal and may be determined by reason and observation of natural action. Neil McLeod identifies concepts that law must accord with: fír (truth) and dliged (right or entitlement). These two terms occur frequently, though Irish law never strictly defines them. Similarly, the term córus (law in accordance with proper order) occurs in some places, and even in the titles of certain texts. These were two very real concepts to the jurists and the value of a given judgment with respect to them was apparently ascertainable. McLeod has also suggested that most of the specific laws mentioned have passed the test of time and thus their truth has been confirmed, while other provisions are justified in other ways because they are younger and have not been tested over time The laws were written in the oldest dialect of the Irish language, called Bérla Féini
airla-faina which even at the time was so difficult that persons about to become brehons had to be specially instructed in it, the length of time from beginning to becoming a learned Brehon was usually 20 years. Although under the law any third person could fulfill the duty if both parties agreed, and both were sane. It has been included in an Ethno-Celtic breakaway subculture, as it has religious undertones and freedom of religious expression allows it to once again be used as a valid system in Western Europe.
English jurisprudence
Heinrich A. Rommen remarked upon "the tenacity with which the spirit of the English common law retained the conceptions of natural law and equity which it had assimilated during the Catholic Middle Ages, thanks especially to the influence of
Henry de Bracton
Henry of Bracton, also Henry de Bracton, also Henricus Bracton, or Henry Bratton also Henry Bretton (c. 1210 – c. 1268) was an English cleric and jurist.
He is famous now for his writings on law, particularly ''De legibus et consuetudinibus ...
(d. 1268) and
Sir John Fortescue John Fortescue may refer to:
* Sir John Fortescue (judge) (c. 1394–1479), English lawyer and judge, MP for Tavistock, Totnes, Plympton Erle and Wiltshire
* Sir John Fortescue of Salden (1531/1533–1607), third Chancellor of the Exchequer of Eng ...
(d. cir. 1476)." Bracton's translator notes that Bracton "was a trained jurist with the principles and distinctions of Roman jurisprudence firmly in mind"; but Bracton adapted such principles to English purposes rather than copying slavishly. In particular, Bracton turned the imperial Roman maxim that "the will of the prince is law" on its head, insisting that the king is ''under'' the law. The legal historian Charles F. Mullett has noted Bracton's "ethical definition of law, his recognition of justice, and finally his devotion to natural rights." Bracton considered justice to be the "fountain-head" from which "all rights arise." For his definition of justice, Bracton quoted the twelfth-century Italian jurist
Azo: "'Justice is the constant and unfailing will to give to each his right.'" Bracton's work was the second legal treatise studied by the American historical figure
Thomas Jefferson
Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Fathers of the United States, Founding Father who served as the third president of the United States from 18 ...
as a young apprentice lawyer.
Fortescue stressed "the supreme importance of the law of God and of nature" in works that "profoundly influenced the course of legal development in the following centuries." The legal scholar
Ellis Sandoz
Ellis Sandoz (born 1931)VIAF"Sandoz, Ellis"/ref> is the Hermann Moyse Jr. Distinguished Professor of Political Science and Director of the Eric Voegelin Institute for American Renaissance Studies at Louisiana State University. Sandoz is also the ...
has noted that "the historically ancient and the ontologically higher law—eternal, divine, natural—are woven together to compose a single harmonious texture in Fortescue's account of English law." As the legal historian Norman Doe explains: "Fortescue follows the general pattern set by Aquinas. The objective of every legislator is to dispose people to virtue. It is by means of law that this is accomplished. Fortescue's definition of law (also found in
Accursius
__NOTOC__
Accursius (in Italian ''Accursio'' or ''Accorso di Bagnolo''; c. 11821263) was a Roman jurist. He is notable for his organization of the glosses, the medieval comments on Justinian's codification of Roman law, the ''Corpus Juris Civil ...
and Bracton), after all, was 'a sacred sanction commanding what is virtuous
'honesta''and forbidding the contrary.'" Fortescue cited the great Italian
Leonardo Bruni
Leonardo Bruni (or Leonardo Aretino; c. 1370 – March 9, 1444) was an Italian humanist, historian and statesman, often recognized as the most important humanist historian of the early Renaissance. He has been called the first modern historian. H ...
for his statement that "virtue alone produces happiness."
Christopher St. Germain's ''
The Doctor and Student'' was a classic of English jurisprudence,. Norman Doe notes that St. Germain's view "is essentially Thomist," quoting Thomas Aquinas's definition of law as "an ordinance of reason made for the common good by him who has charge of the community, and promulgated."
Sir Edward Coke
''Sir'' is a formal honorific address in English for men, derived from Sire in the High Middle Ages. Both are derived from the old French "Sieur" (Lord), brought to England by the French-speaking Normans, and which now exist in French only as p ...
was the preeminent jurist of his time. Coke's preeminence extended across the ocean: "For the American revolutionary leaders, 'law' meant Sir Edward Coke's custom and right reason." Coke defined law as "perfect reason, which commands those things that are proper and necessary and which prohibits contrary things." For Coke, human nature determined the purpose of law; and law was superior to any one person's reason or will. Coke's discussion of natural law appears in his report of ''
Calvin's Case
''Calvin's Case'' (1608), 77 ER 377, (1608) Co Rep 1a, also known as the ''Case of the Postnati'', was a 1608 English legal decision establishing that a child born in Scotland, after the Union of the Crowns under King James VI and I in 1603, wa ...
'' (1608): "The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction." In this case the judges found that "the ligeance or faith of the subject is due unto the King by the law of nature: secondly, that the law of nature is part of the law of England: thirdly, that the law of nature was before any judicial or municipal law: fourthly, that the law of nature is immutable." To support these findings, the assembled judges (as reported by Coke, who was one of them) cited as authorities
Aristotle
Aristotle (; grc-gre, Ἀριστοτέλης ''Aristotélēs'', ; 384–322 BC) was a Greek philosopher and polymath during the Classical period in Ancient Greece. Taught by Plato, he was the founder of the Peripatetic school of phil ...
,
Cicero
Marcus Tullius Cicero ( ; ; 3 January 106 BC – 7 December 43 BC) was a Roman statesman, lawyer, scholar, philosopher, and academic skeptic, who tried to uphold optimate principles during the political crises that led to the estab ...
, and the
Apostle Paul
Paul; grc, Παῦλος, translit=Paulos; cop, ⲡⲁⲩⲗⲟⲥ; hbo, פאולוס השליח (previously called Saul of Tarsus;; ar, بولس الطرسوسي; grc, Σαῦλος Ταρσεύς, Saũlos Tarseús; tr, Tarsuslu Pavlus; ...
; as well as Bracton, Fortescue, and
St. Germain.
After Coke, the most famous common law jurist of the seventeenth century is
Sir Matthew Hale
Sir Matthew Hale (1 November 1609 – 25 December 1676) was an influential English barrister, judge and jurist most noted for his treatise ''Historia Placitorum Coronæ'', or ''The History of the Pleas of the Crown''.
Born to a barrister and ...
. Hale wrote a treatise on natural law that circulated among English lawyers in the eighteenth century and survives in three manuscript copies. This natural-law treatise has been published as ''Of the Law of Nature'' (2015). Hale's definition of the natural law reads: "It is the Law of Almighty God given by him to Man with his Nature discovering the morall good and moral evill of Moral Actions, commanding the former, and forbidding the latter by the secret voice or dictate of his implanted nature, his reason, and his concience." He viewed natural law as antecedent, preparatory, and subsequent to civil government, and stated that human law "cannot forbid what the Law of Nature injoins, nor Command what the Law of Nature prohibits." He cited as authorities
Plato
Plato ( ; grc-gre, Πλάτων ; 428/427 or 424/423 – 348/347 BC) was a Greek philosopher born in Athens during the Classical period in Ancient Greece. He founded the Platonist school of thought and the Academy, the first institution ...
,
Aristotle
Aristotle (; grc-gre, Ἀριστοτέλης ''Aristotélēs'', ; 384–322 BC) was a Greek philosopher and polymath during the Classical period in Ancient Greece. Taught by Plato, he was the founder of the Peripatetic school of phil ...
,
Cicero
Marcus Tullius Cicero ( ; ; 3 January 106 BC – 7 December 43 BC) was a Roman statesman, lawyer, scholar, philosopher, and academic skeptic, who tried to uphold optimate principles during the political crises that led to the estab ...
,
Seneca
Seneca may refer to:
People and language
* Seneca (name), a list of people with either the given name or surname
* Seneca people, one of the six Iroquois tribes of North America
** Seneca language, the language of the Seneca people
Places Extrat ...
,
Epictetus
Epictetus (; grc-gre, Ἐπίκτητος, ''Epíktētos''; 50 135 AD) was a Greek Stoic philosopher. He was born into slavery at Hierapolis, Phrygia (present-day Pamukkale, in western Turkey) and lived in Rome until his banishment, when ...
, and the
Apostle Paul
Paul; grc, Παῦλος, translit=Paulos; cop, ⲡⲁⲩⲗⲟⲥ; hbo, פאולוס השליח (previously called Saul of Tarsus;; ar, بولس الطرسوسي; grc, Σαῦλος Ταρσεύς, Saũlos Tarseús; tr, Tarsuslu Pavlus; ...
. He was critical of Hobbes's reduction of natural law to self-preservation and Hobbes's account of the state of nature, but drew positively on
Hugo Grotius
Hugo Grotius (; 10 April 1583 – 28 August 1645), also known as Huig de Groot () and Hugo de Groot (), was a Dutch humanist, diplomat, lawyer, theologian, jurist, poet and playwright.
A teenage intellectual prodigy, he was born in Delft ...
's ''
De jure belli ac pacis
''De iure belli ac pacis'' (English: ''On the Law of War and Peace'') is a 1625 book in Latin, written by Hugo Grotius and published in Paris, on the legal status of war. It is now regarded as a foundational work in international law. The work t ...
'',
Francisco Suárez's ''Tractatus de legibus ac deo legislatore'', and
John Selden
John Selden (16 December 1584 – 30 November 1654) was an English jurist, a scholar of England's ancient laws and constitution and scholar of Jewish law. He was known as a polymath; John Milton hailed Selden in 1644 as "the chief of learned ...
's ''De jure naturali et gentium juxta disciplinam Ebraeorum''.
As early as the thirteenth century, it was held that "the law of nature...is the ground of all laws" and by the Chancellor and Judges that "it is required by the law of nature that every person, before he can be punish'd, ought to be present; and if absent by contumacy, he ought to be summoned and make default." Further, in 1824, we find it held that "proceedings in our Courts are founded upon the law of England, and that law is again founded upon the law of nature and the revealed law of God. If the right sought to be enforced is inconsistent with either of these, the English municipal courts cannot recognize it."
Hobbes
![Thomas Hobbes](https://upload.wikimedia.org/wikipedia/commons/7/77/Thomas_Hobbes.jpeg)
By the 17th century, the
medieval
In the history of Europe, the Middle Ages or medieval period lasted approximately from the late 5th to the late 15th centuries, similar to the Post-classical, post-classical period of World history (field), global history. It began with t ...
teleological
Teleology (from and )Partridge, Eric. 1977''Origins: A Short Etymological Dictionary of Modern English'' London: Routledge, p. 4187. or finalityDubray, Charles. 2020 912Teleology" In ''The Catholic Encyclopedia'' 14. New York: Robert Appleton ...
view came under intense criticism from some quarters.
Thomas Hobbes
Thomas Hobbes ( ; 5/15 April 1588 – 4/14 December 1679) was an English philosopher, considered to be one of the founders of modern political philosophy. Hobbes is best known for his 1651 book ''Leviathan'', in which he expounds an influent ...
instead founded a
contractarian theory of
legal positivism
Legal positivism (as understood in the Anglosphere) is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin de ...
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. Natural law, therefore, 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
Jeremy Bentham (; 15 February 1748 Old_Style_and_New_Style_dates">O.S._4_February_1747.html" ;"title="Old_Style_and_New_Style_dates.html" ;"title="nowiki/>Old Style and New Style dates">O.S. 4 February 1747">Old_Style_and_New_Style_dates.htm ...
's modifications on
legal positivism
Legal positivism (as understood in the Anglosphere) is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin de ...
further developed the theory.
As used by
Thomas Hobbes
Thomas Hobbes ( ; 5/15 April 1588 – 4/14 December 1679) was an English philosopher, considered to be one of the founders of modern political philosophy. Hobbes is best known for his 1651 book ''Leviathan'', in which he expounds an influent ...
in his treatises ''
Leviathan
Leviathan (; he, לִוְיָתָן, ) is a sea serpent noted in theology and mythology. It is referenced in several books of the Hebrew Bible, including Psalms, the Book of Job, the Book of Isaiah, the Book of Amos, and, according to some ...
'' and ''
De Cive
''De Cive'' ("On the citizen") is one of Thomas Hobbes's major works. The book was published originally in Latin from Paris in 1642, followed by two further Latin editions in 1647 from Amsterdam. The English translation of the work made its first ...
'', natural law is "a
precept
A precept (from the la, præcipere, to teach) is a commandment, instruction, or order intended as an authoritative rule of action.
Religious law
In religion, precepts are usually commands respecting moral conduct.
Christianity
The term is en ...
, or general rule, found out by
reason
Reason is the capacity of consciously applying logic by drawing conclusions from new or existing information, with the aim of seeking the truth. It is closely associated with such characteristically human activities as philosophy, science, ...
, 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, forward, 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 ''the entire right, or else...the first possession'' (in the case of alternating use), of a thing that ''can neither be divided nor enjoyed in common'' should be determined by lottery.
* The fourteenth 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 fifteenth law is that ''all men that mediate peace be allowed safe conduct.''
* The sixteenth law is ''that they that are at controversie, submit their Right to the judgement of an Arbitrator.''
* The seventeenth law is ''that no man is a fit Arbitrator in his own cause.''
* The eighteenth law is that no man should serve as a judge in a case if ''greater profit, or honour, or pleasure apparently ariseth
or him
Or or OR may refer to:
Arts and entertainment Film and television
* "O.R.", a 1974 episode of M*A*S*H
* Or (My Treasure), a 2004 movie from Israel (''Or'' means "light" in Hebrew)
Music
* ''Or'' (album), a 2002 album by Golden Boy with Miss ...
out of the victory of one party, than of the other.''
* The nineteenth law is that in a disagreement of fact, the judge should not give more weight to the testimony of one party than another, and absent other evidence, should give credit to the testimony of other witnesses.
Hobbes's philosophy includes a frontal assault on the founding principles of the earlier natural legal tradition, disregarding the traditional association of virtue with happiness, and likewise re-defining "law" to remove any notion of the promotion of the common good. Hobbes has no use for
Aristotle
Aristotle (; grc-gre, Ἀριστοτέλης ''Aristotélēs'', ; 384–322 BC) was a Greek philosopher and polymath during the Classical period in Ancient Greece. Taught by Plato, he was the founder of the Peripatetic school of phil ...
's association of nature with human perfection, inverting Aristotle's use of the word "nature." Hobbes posits a primitive, unconnected state of nature in which men, having a "natural proclivity...to hurt each other" also have "a Right to every thing, even to one anothers body"; and "nothing can be Unjust" in this "warre of every man against every man" in which human life is "solitary, poore, nasty, brutish, and short." Rejecting
Cicero
Marcus Tullius Cicero ( ; ; 3 January 106 BC – 7 December 43 BC) was a Roman statesman, lawyer, scholar, philosopher, and academic skeptic, who tried to uphold optimate principles during the political crises that led to the estab ...
's view that people join in society primarily through "a certain social spirit which nature has implanted in man," Hobbes declares that men join in society simply for the purpose of "getting themselves out from that miserable condition of Warre, which is necessarily consequent...to the naturall Passions of men, when there is no visible Power to keep them in awe." As part of his campaign against the classical idea of natural human sociability, Hobbes inverts that fundamental natural legal maxim, the
Golden Rule. Hobbes's version is ''"Do not that to another, which thou wouldst not have done to thy selfe."''
Cumberland's rebuttal of Hobbes
The English cleric
Richard Cumberland Richard Cumberland may refer to:
* Richard Cumberland (philosopher) (1631–1718), bishop, philosopher
* Richard Cumberland (dramatist) (1732–1811), civil servant, dramatist
* Richard Cumberland (priest) (1710–1737), Archdeacon of Northa ...
wrote a lengthy and influential attack on Hobbes's depiction of individual self-interest as the essential feature of human motivation. Historian Knud Haakonssen has noted that in the eighteenth century, Cumberland was commonly placed alongside
Alberico Gentili
Alberico Gentili (14 January 155219 June 1608) was an Italian-English jurist, a tutor of Queen Elizabeth I, and a standing advocate to the Spanish Embassy in London, who served as the Regius professor of civil law at the University of Oxford ...
,
Hugo Grotius
Hugo Grotius (; 10 April 1583 – 28 August 1645), also known as Huig de Groot () and Hugo de Groot (), was a Dutch humanist, diplomat, lawyer, theologian, jurist, poet and playwright.
A teenage intellectual prodigy, he was born in Delft ...
and
Samuel Pufendorf
Samuel Freiherr von Pufendorf (8 January 1632 – 26 October 1694) was a German jurist, political philosopher, economist and historian. He was born Samuel Pufendorf and ennobled in 1694; he was made a baron by Charles XI of Sweden a few months b ...
"in the triumvirate of seventeenth-century founders of the 'modern' school of natural law." The eighteenth-century philosophers
Shaftesbury
Shaftesbury () is a town and civil parish in Dorset, England. It is situated on the A30 road, west of Salisbury, near the border with Wiltshire. It is the only significant hilltop settlement in Dorset, being built about above sea level on a ...
and
Hutcheson "were obviously inspired in part by Cumberland." Historian Jon Parkin likewise describes Cumberland's work as "one of the most important works of ethical and political theory of the seventeenth century." Parkin observes that much of Cumberland's material "is derived from Roman
Stoicism
Stoicism is a school of Hellenistic philosophy founded by Zeno of Citium in Athens in the early 3rd century Common Era, BCE. It is a philosophy of personal virtue ethics informed by its system of logic and its views on the natural world, asser ...
, particularly from the work of
Cicero
Marcus Tullius Cicero ( ; ; 3 January 106 BC – 7 December 43 BC) was a Roman statesman, lawyer, scholar, philosopher, and academic skeptic, who tried to uphold optimate principles during the political crises that led to the estab ...
, as "Cumberland deliberately cast his engagement with Hobbes in the mould of Cicero's debate between the Stoics, who believed that nature could provide an objective morality, and
Epicureans
Epicureanism is a system of philosophy founded around 307 BC based upon the teachings of the ancient Greek philosopher Epicurus. Epicureanism was originally a challenge to Platonism. Later its main opponent became Stoicism.
Few writings by Epi ...
, who argued that morality was human, conventional and self-interested." In doing so, Cumberland de-emphasized the overlay of Christian dogma (in particular, the doctrine of "original sin" and the corresponding presumption that humans are incapable of "perfecting" themselves without divine intervention) that had accreted to natural law in the Middle Ages.
By way of contrast to Hobbes's multiplicity of laws, Cumberland states in the very first sentence of his ''Treatise of the Laws of Nature'' that "all the Laws of Nature are reduc'd to that one, of Benevolence toward all Rationals." He later clarifies: "By the name ''Rationals'' I beg leave to understand, as well ''God'' as ''Man''; and I do it upon the Authority of Cicero." Cumberland argues that the mature development ("perfection") of human nature involves the individual human willing and acting for the common good. For Cumberland, human interdependence precludes Hobbes's natural right of each individual to wage war against all the rest for personal survival. However, Haakonssen warns against reading Cumberland as a proponent of "
enlightened self-interest
Enlightened self-interest is a philosophy in ethics which states that persons who act to further the interests of others (or the interests of the group or groups to which they belong), ultimately serve their own self-interest.
It has often been ...
." Rather, the "proper moral love of humanity" is "a disinterested love of God through love of humanity in ourselves as well as others." Cumberland concludes that actions "principally conducive to our Happiness" are those that promote "the Honour and Glory of God" and also "Charity and Justice towards men." Cumberland emphasizes that desiring the well-being of our fellow humans is essential to the "pursuit of our own Happiness." He cites "reason" as the authority for his conclusion that happiness consists in "the most extensive Benevolence," but he also mentions as "Essential Ingredients of Happiness" the "Benevolent Affections," meaning "Love and Benevolence towards others," as well as "that Joy, which arises from their Happiness."
American jurisprudence
The
U.S. Declaration of Independence
The United States Declaration of Independence, formally The unanimous Declaration of the thirteen States of America, is the pronouncement and founding document adopted by the Second Continental Congress meeting at Pennsylvania State House (l ...
states that it has become necessary for the people of the United States to assume "the separate and equal station to which the Laws of Nature and of Nature's God entitle them." Some early American lawyers and judges perceived natural law as too tenuous, amorphous, and evanescent a legal basis for grounding concrete
rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convention, or ethical the ...
and
governmental limitations.
Natural law did, however, serve as authority for legal claims and rights in some judicial decisions, legislative acts, and legal pronouncements. Robert Lowry Clinton argues that the
U.S. Constitution
The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the natio ...
rests on a
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
foundation and the common law, in turn, rests on a classical natural law foundation.
European liberal natural law
![Dr Sir Albericus Gentilis (Father of international law)](https://upload.wikimedia.org/wikipedia/commons/3/31/Dr_Sir_Albericus_Gentilis_%28Father_of_international_law%29.png)
Liberal natural law grew out of the
medieval
In the history of Europe, the Middle Ages or medieval period lasted approximately from the late 5th to the late 15th centuries, similar to the Post-classical, post-classical period of World history (field), global history. It began with t ...
Christian natural law theories and out of
Hobbes' revision of natural law, sometimes in an uneasy balance of the two.
Sir Alberico Gentili and
Hugo Grotius
Hugo Grotius (; 10 April 1583 – 28 August 1645), also known as Huig de Groot () and Hugo de Groot (), was a Dutch humanist, diplomat, lawyer, theologian, jurist, poet and playwright.
A teenage intellectual prodigy, he was born in Delft ...
based their philosophies of international law on natural law. In particular, Grotius's writings on
freedom of the seas
Freedom of the seas ( la, mare liberum, lit. "free sea") is a principle in the law of the sea. It stresses freedom to navigate the oceans. It also disapproves of war fought in water. The freedom is to be breached only in a necessary inter ...
and
just war theory
The just war theory ( la, bellum iustum) is a doctrine, also referred to as a tradition, of military ethics which is studied by military leaders, theologians, ethicists and policy makers. The purpose of the doctrine is to ensure that a war is m ...
directly appealed to natural law. About natural law itself, he wrote that "even the will of an
omnipotent
Omnipotence is the quality of having unlimited power. Monotheistic religions generally attribute omnipotence only to the deity of their faith. In the monotheistic religious philosophy of Abrahamic religions, omnipotence is often listed as one ...
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
In monotheism, monotheistic thought, God is usually viewed as the supreme being, creator deity, creator, and principal object of Faith#Religious views, faith.Richard Swinburne, Swinburne, R.G. "God" in Ted Honderich, Honderich, Ted. (ed)''The Ox ...
or that he does not care for human affairs." (''
De iure belli ac pacis
''De iure belli ac pacis'' (English: ''On the Law of War and Peace'') is a 1625 book in Latin, written by Hugo Grotius and published in Paris, on the legal status of war. It is now regarded as a foundational work in international law. The work t ...
'', Prolegomeni XI). This is the famous
argument
An argument is a statement or group of statements called premises intended to determine the degree of truth or acceptability of another statement called conclusion. Arguments can be studied from three main perspectives: the logical, the dialectic ...
''etiamsi daremus'' (''non esse Deum''), that made natural law no longer dependent on theology. However, German church-historians Ernst Wolf and M. Elze disagreed and claimed that Grotius' concept of natural law did have a theological basis. In Grotius' view, the
Old Testament
The Old Testament (often abbreviated OT) is the first division of the Christian biblical canon, which is based primarily upon the 24 books of the Hebrew Bible or Tanakh, a collection of ancient religious Hebrew writings by the Israelites. The ...
contained moral precepts (e.g. the
Decalogue
The Ten Commandments ( Biblical Hebrew עשרת הדברים \ עֲשֶׂרֶת הַדְּבָרִים, ''aséret ha-dvarím'', lit. The Decalogue, The Ten Words, cf. Mishnaic Hebrew עשרת הדיברות \ עֲשֶׂרֶת הַדִּבְ ...
) which
Christ
Jesus, likely from he, יֵשׁוּעַ, translit=Yēšūaʿ, label=Hebrew/Aramaic ( AD 30 or 33), also referred to as Jesus Christ or Jesus of Nazareth (among other Names and titles of Jesus in the New Testament, names and titles), was ...
confirmed and therefore were still valid. Moreover, they were useful in explaining the content of natural law. Both biblical revelation and natural law originated in God and could therefore not contradict each other.
In a similar way,
Samuel Pufendorf
Samuel Freiherr von Pufendorf (8 January 1632 – 26 October 1694) was a German jurist, political philosopher, economist and historian. He was born Samuel Pufendorf and ennobled in 1694; he was made a baron by Charles XI of Sweden a few months b ...
gave natural law a theological foundation and applied it to his concepts of government and
international law
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
.
John Locke
John Locke (; 29 August 1632 – 28 October 1704) was an English philosopher and physician, widely regarded as one of the most influential of Age of Enlightenment, Enlightenment thinkers and commonly known as the "father of liberalism ...
incorporated natural law into many of his theories and philosophy, especially in ''
Two Treatises of Government
''Two Treatises of Government'' (or ''Two Treatises of Government: In the Former, The False Principles, and Foundation of Sir Robert Filmer, and His Followers, Are Detected and Overthrown. The Latter Is an Essay Concerning The True Original, ...
''. There is considerable debate about whether his conception of natural law was more akin to that of
Aquinas
Thomas Aquinas, OP (; it, Tommaso d'Aquino, lit=Thomas of Aquino; 1225 – 7 March 1274) was an Italian Dominican friar and priest who was an influential philosopher, theologian and jurist in the tradition of scholasticism; he is known wit ...
(filtered through
Richard Hooker
Richard Hooker (25 March 1554 – 2 November 1600) was an English priest in the Church of England and an influential theologian.The Oxford Dictionary of the Christian Church by F. L. Cross (Editor), E. A. Livingstone (Editor) Oxford University ...
) or
Hobbes' radical reinterpretation, though the effect of Locke's understanding is usually phrased in terms of a revision of Hobbes upon Hobbesian
contractarian
In moral and political philosophy, the social contract is a theory or model that originated during the Age of Enlightenment and usually, although not always, concerns the legitimacy of the authority of the state over the individual.
Social con ...
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. Political philosopher
Jeremy Waldron
Jeremy Waldron (; born 13 October 1953) is a New Zealand professor of law and philosophy. He holds a University Professorship at the New York University School of Law, is affiliated with the New York University Department of Philosophy, and was f ...
has pointed out that Locke's political thought was based on "a particular set of Protestant Christian assumptions." To Locke, the content of natural law was identical with biblical ethics as laid down especially in the
Decalogue
The Ten Commandments ( Biblical Hebrew עשרת הדברים \ עֲשֶׂרֶת הַדְּבָרִים, ''aséret ha-dvarím'', lit. The Decalogue, The Ten Words, cf. Mishnaic Hebrew עשרת הדיברות \ עֲשֶׂרֶת הַדִּבְ ...
,
Christ
Jesus, likely from he, יֵשׁוּעַ, translit=Yēšūaʿ, label=Hebrew/Aramaic ( AD 30 or 33), also referred to as Jesus Christ or Jesus of Nazareth (among other Names and titles of Jesus in the New Testament, names and titles), was ...
's teaching and exemplary life, and St. Paul's admonitions. Locke derived the concept of basic human equality, including the
equality of the sexes ("Adam and Eve"), fro
Genesis 1, 26–28 the starting-point of the theological doctrine of
Imago Dei
The image of God (; ) is a concept and theological doctrine in Christianity, as well as in Judaism. This concept is a foundational aspect of Christian and Jewish understandings of human nature. It stems from the primary text in Genesis 1:27, whi ...
. One of the consequences is that as all humans are created equally free, governments need the consent of the governed.
Thomas Jefferson
Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Fathers of the United States, Founding Father who served as the third president of the United States from 18 ...
, arguably echoing Locke, appealed to
unalienable rights
Some philosophers distinguish two types of rights, natural rights and legal rights.
* Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and so are ''universal'', ''fundamental'' and ...
in the ''
Declaration of Independence
A declaration of independence or declaration of statehood or proclamation of independence is an assertion by a polity in a defined territory that it is independent and constitutes a state. Such places are usually declared from part or all of the ...
'', "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
"Life, Liberty and the pursuit of Happiness" is a well-known phrase from the United States Declaration of Independence. Scanned image of the Jefferson's "original Rough draught" of the Declaration of Independence, written in June 1776, including ...
." The Lockean idea that governments need the
consent of the governed
In political philosophy, the phrase consent of the governed refers to the idea that a government's legitimacy and moral right to use state power is justified and lawful only when consented to by the people or society over which that political powe ...
was also fundamental to the Declaration of Independence, as the American Revolutionaries used it as justification for their separation from the British crown.
The Belgian philosopher of law
Frank van Dun is one among those who are elaborating a secular conception of natural law in the liberal tradition.
Anarcho-capitalist
Anarcho-capitalism (or, colloquially, ancap) is an anti-statist, libertarian, and anti-political philosophy and economic theory that seeks to abolish centralized states in favor of stateless societies with systems of private property enforce ...
theorist
Murray Rothbard
Murray Newton Rothbard (; March 2, 1926 – January 7, 1995) was an American economist of the Austrian School, economic historian, political theorist, and activist. Rothbard was a central figure in the 20th-century American libertarian m ...
argues that "the very existence of a natural law discoverable by reason is a potentially powerful threat to the status quo and a standing reproach to the reign of blindly traditional custom or the arbitrary will of the State apparatus."
Austrian school
The Austrian School is a heterodox school of economic thought that advocates strict adherence to methodological individualism, the concept that social phenomena result exclusively from the motivations and actions of individuals. Austrian school ...
economist
Ludwig von Mises
Ludwig Heinrich Edler von Mises (; 29 September 1881 – 10 October 1973) was an Austrian School economist, historian, logician, and Sociology, sociologist. Mises wrote and lectured extensively on the societal contributions of classical liberali ...
states that he relaid the general sociological and economic foundations of the liberal doctrine upon utilitarianism, rather than natural law, but R. A. Gonce argues that "the reality of the argument constituting his system overwhelms his denial." Murray Rothbard, however, says that Gonce makes a lot of errors and distortions in the analysis of Mises's works, including making confusions about the term which Mises uses to refer to scientific laws, "laws of nature," saying it characterizes Mises as a natural law philosopher.
David Gordon notes, "When most people speak of natural law, what they have in mind is the contention that morality can be derived from human nature. If human beings are rational animals of such-and-such a sort, then the moral virtues are...(filling in the blanks is the difficult part)."
Nobel Prize
The Nobel Prizes ( ; sv, Nobelpriset ; no, Nobelprisen ) are five separate prizes that, according to Alfred Nobel's will of 1895, are awarded to "those who, during the preceding year, have conferred the greatest benefit to humankind." Alfr ...
winning Austrian economist and social theorist
F. A. Hayek
Friedrich August von Hayek ( , ; 8 May 189923 March 1992), often referred to by his initials F. A. Hayek, was an Austrian–British economist, Jurisprudence, legal theorist and philosopher who is best known for his defense of classical lib ...
said that, originally, "the term 'natural' was used to describe an orderliness or regularity that was not the product of deliberate human will. Together with 'organism' it was one of the two terms generally understood to refer to the spontaneously grown in contrast to the invented or designed. Its use in this sense had been inherited from the stoic philosophy, had been revived in the twelfth century, and it was finally under its flag that the late Spanish Schoolmen developed the foundations of the genesis and functioning of spontaneously formed social institutions." The idea that 'natural' was "the product of designing reason" is a product of a seventeenth century
rationalist reinterpretation of the law of nature.
Luis Molina, for example, when referred to the 'natural' price, explained that it is "so called because 'it results from the thing itself without regard to laws and decrees, but is dependent on many circumstances which alter it, such as the sentiments of men, their estimation of different uses, often even in consequence of whims and pleasures." And even
John Locke
John Locke (; 29 August 1632 – 28 October 1704) was an English philosopher and physician, widely regarded as one of the most influential of Age of Enlightenment, Enlightenment thinkers and commonly known as the "father of liberalism ...
, when talking about the foundations of natural law and explaining what he thought when citing "reason," said: "By reason, however, I do not think is meant here that faculty of the understanding which forms traint of thought and deduces proofs, but certain definite principles of action from which spring all virtues and whatever is necessary for the proper moulding of morals."
This anti-rationalist approach to human affairs, for Hayek, was the same which guided
Scottish enlightenment
The Scottish Enlightenment ( sco, Scots Enlichtenment, gd, Soillseachadh na h-Alba) was the period in 18th- and early-19th-century Scotland characterised by an outpouring of intellectual and scientific accomplishments. By the eighteenth century ...
thinkers, such as
Adam Smith
Adam Smith (baptized 1723 – 17 July 1790) was a Scottish economist and philosopher who was a pioneer in the thinking of political economy and key figure during the Scottish Enlightenment. Seen by some as "The Father of Economics"——— ...
,
David Hume
David Hume (; born David Home; 7 May 1711 NS (26 April 1711 OS) – 25 August 1776) Cranston, Maurice, and Thomas Edmund Jessop. 2020 999br>David Hume" ''Encyclopædia Britannica''. Retrieved 18 May 2020. was a Scottish Enlightenment philo ...
and
Adam Ferguson
Adam Ferguson, (Scottish Gaelic: ''Adhamh MacFhearghais''), also known as Ferguson of Raith (1 July N.S./20 June O.S. 1723 – 22 February 1816), was a Scottish philosopher and historian of the Scottish Enlightenment.
Ferguson was sympathet ...
, to make their case for liberty. For them, no one can have the knowledge necessary to plan society, and this "natural" or "spontaneous" order of society shows how it can efficiently "plan" bottom-up. Also, the idea that law is just a product of deliberate design, denied by natural law and linked to
legal positivism
Legal positivism (as understood in the Anglosphere) is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin de ...
, can easily generate
totalitarianism
Totalitarianism is a form of government and a political system that prohibits all opposition parties, outlaws individual and group opposition to the state and its claims, and exercises an extremely high if not complete degree of control and reg ...
: "If law is wholly the product of deliberate design, whatever the designer decrees to be law is just by definition and unjust law becomes a contradiction in terms. The will of the duly authorized legislator is then wholly unfettered and guided solely by his concrete interests." This idea is wrong because law cannot be just a product of "reason": "no system of articulated law can be applied except within a framework of generally recognized but often unarticulated rules of justice."
However, a secular critique of the natural law doctrine was stated by
Pierre Charron
Pierre Charron (; 1541 – 16 November 1603, Paris), French Catholic theologian and major contributor to the new thought of the 17th century. He is remembered for his controversial form of skepticism and his separation of ethics from religion as ...
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 jurisprudence
One modern articulation of the concept of natural laws was given by Belina and Dzudzek:
"By constant repetition, those practices develop into structures in the form of discourses which can become so natural that we abstract from their societal origins, that the latter are forgotten and seem to be natural laws."
In
jurisprudence
Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning a ...
, ''natural law'' can refer to the several doctrines:
* That
just laws are
immanent
The doctrine or theory of immanence holds that the divine encompasses or is manifested in the material world. It is held by some philosophical and metaphysical theories of divine presence. Immanence is usually applied in monotheistic, pantheis ...
in nature; that is, they can be "discovered" or "found" but not "created" by such things as a
bill of rights
A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pri ...
;
* 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
Legal positivism (as understood in the Anglosphere) is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin de ...
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 norm.
Besides
utilitarianism
In ethical philosophy, utilitarianism is a family of normative ethical theories that prescribe actions that maximize happiness and well-being for all affected individuals.
Although different varieties of utilitarianism admit different charact ...
and
Kantianism
Kantianism is the philosophy of Immanuel Kant, a German philosopher born in Königsberg, Prussia (now Kaliningrad, Russia). The term ''Kantianism'' or ''Kantian'' is sometimes also used to describe contemporary positions in philosophy of mind, ...
, natural law jurisprudence has in common with
virtue ethics
Virtue ethics (also aretaic ethics, from Greek ἀρετή arete_(moral_virtue).html"_;"title="'arete_(moral_virtue)">aretḗ''_is_an_approach_to_ethics_that_treats_the_concept_of_virtue.html" ;"title="arete_(moral_virtue)">aretḗ''.html" ;" ...
that it is a live option for a
first principles
In philosophy and science, a first principle is a basic proposition or assumption that cannot be deduced from any other proposition or assumption.
First principles in philosophy are from First Cause attitudes and taught by Aristotelians, and nuan ...
ethics theory in
analytic philosophy
Analytic philosophy is a branch and tradition of philosophy using analysis, popular in the Western world and particularly the Anglosphere, which began around the turn of the 20th century in the contemporary era in the United Kingdom, United Sta ...
.
The concept of natural law was very important in the development of the English
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
. In the struggles between
Parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
and the
monarch
A monarch is a head of stateWebster's II New College DictionarMonarch Houghton Mifflin. Boston. 2001. p. 707. Life tenure, for life or until abdication, and therefore the head of state of a monarchy. A monarch may exercise the highest authority ...
, Parliament often made reference to the
Fundamental Laws of England
In the 1760s William Blackstone described the Fundamental Laws of England in '' Commentaries on the Laws of England, Book the First – Chapter the First : Of the Absolute Rights of Individuals'' as "the absolute rights of every Englishman" and t ...
, which were at times said to embody natural law principles since
time immemorial
Time immemorial ( la, Ab immemorabili) is a phrase meaning time extending beyond the reach of memory, record, or tradition, indefinitely ancient, "ancient beyond memory or record". The phrase is used in legally significant contexts as well as ...
and set limits on the power of the monarchy. According to
William Blackstone
Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Born into a middle-class family i ...
, however, natural law might be useful in determining the content of the common law and in deciding cases of
equity
Equity may refer to:
Finance, accounting and ownership
* Equity (finance), ownership of assets that have liabilities attached to them
** Stock, equity based on original contributions of cash or other value to a business
** Home equity, the dif ...
, 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
Legal positivism (as understood in the Anglosphere) is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin de ...
, like
Jeremy Bentham
Jeremy Bentham (; 15 February 1748 Old_Style_and_New_Style_dates">O.S._4_February_1747.html" ;"title="Old_Style_and_New_Style_dates.html" ;"title="nowiki/>Old Style and New Style dates">O.S. 4 February 1747">Old_Style_and_New_Style_dates.htm ...
, 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
John Mitchell Finnis, , (born 28 July 1940) is an Australian legal philosopher, jurist and scholar specializing in jurisprudence and the philosophy of law. He is the Biolchini Family Professor of Law, emeritus, at Notre Dame Law School and a P ...
, is based in Oxford, but there are also Americans
Germain Grisez Germain Gabriel Grisez (September 30, 1929 – February 1, 2018) was a French-American philosopher. Grisez's development of ideas from Thomas Aquinas has redirected Catholic thought and changed the way it has engaged with secular moral philosophy. ...
,
Robert P. George, and Canadian
Joseph Boyle and Brazilian Emídio Brasileiro. All have tried to construct a new version of natural law. The 19th-century
anarchist
Anarchism is a political philosophy and movement that is skeptical of all justifications for authority and seeks to abolish the institutions it claims maintain unnecessary coercion and hierarchy, typically including, though not neces ...
and legal theorist
Lysander Spooner
Lysander Spooner (January 19, 1808May 14, 1887) was an American individualist anarchist, abolitionist, entrepreneur, essayist, legal theorist, pamphletist, political philosopher, Unitarian and writer.
Spooner was a strong advocate of the labo ...
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.
The tensions between natural law and positive law have played, and continue to play, a key role in the development of
international law
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
.
U.S. Supreme Court justices
Clarence Thomas
Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 199 ...
and
Neil Gorsuch
Neil McGill Gorsuch ( ; born August 29, 1967) is an American lawyer and judge who serves as an associate justice of the Supreme Court of the United States. He was nominated by President Donald Trump on January 31, 2017, and has served since ...
are proponents of natural law.
See also
Notes
References
*
Adams, John. 1797. ''A Defence of the Constitutions of Government of the United States of America''. 3rd edition.
Philadelphia
Philadelphia, often called Philly, is the largest city in the Commonwealth of Pennsylvania, the sixth-largest city in the U.S., the second-largest city in both the Northeast megalopolis and Mid-Atlantic regions after New York City. Sinc ...
; repr.
Darmstadt
Darmstadt () is a city in the States of Germany, state of Hesse in Germany, located in the southern part of the Frankfurt Rhine Main Area, Rhine-Main-Area (Frankfurt Metropolitan Region). Darmstadt has around 160,000 inhabitants, making it th ...
,
Germany
Germany,, officially the Federal Republic of Germany, is a country in Central Europe. It is the second most populous country in Europe after Russia, and the most populous member state of the European Union. Germany is situated betwe ...
: Scientia Verlag Aalen, 1979.
*
Aristotle
Aristotle (; grc-gre, Ἀριστοτέλης ''Aristotélēs'', ; 384–322 BC) was a Greek philosopher and polymath during the Classical period in Ancient Greece. Taught by Plato, he was the founder of the Peripatetic school of phil ...
. ''
Nicomachean Ethics
The ''Nicomachean Ethics'' (; ; grc, Ἠθικὰ Νικομάχεια, ) is Aristotle's best-known work on ethics, the science of the good for human life, which is the goal or end at which all our actions aim. (I§2) The aim of the inquiry is ...
''.
*
Aristotle
Aristotle (; grc-gre, Ἀριστοτέλης ''Aristotélēs'', ; 384–322 BC) was a Greek philosopher and polymath during the Classical period in Ancient Greece. Taught by Plato, he was the founder of the Peripatetic school of phil ...
. ''Rhetoric''.
*
Aristotle
Aristotle (; grc-gre, Ἀριστοτέλης ''Aristotélēs'', ; 384–322 BC) was a Greek philosopher and polymath during the Classical period in Ancient Greece. Taught by Plato, he was the founder of the Peripatetic school of phil ...
. ''Politics''.
*
Aquinas
Thomas Aquinas, OP (; it, Tommaso d'Aquino, lit=Thomas of Aquino; 1225 – 7 March 1274) was an Italian Dominican friar and priest who was an influential philosopher, theologian and jurist in the tradition of scholasticism; he is known wit ...
. ''
Summa Theologica
The ''Summa Theologiae'' or ''Summa Theologica'' (), often referred to simply as the ''Summa'', is the best-known work of Thomas Aquinas (1225–1274), a scholasticism, scholastic theologian and Doctor of the Church. It is a compendium of all ...
''.
* Barham, Francis.Introduction to The Political Works of Marcus Tullius Cicero.
*
Blackstone, William. 1765–1769. ''Commentaries on the Laws of England''.
* Botein, Stephen. 1978. "Cicero as Role Model for Early American Lawyers: A Case Study in Classical 'Influence'". ''
The Classical Journal
''The Classical Journal'' (CJ) is a quarterly peer-reviewed academic journal of classical studies published by the Classical Association of the Middle West and South.
Print edition
The journal currently has about 2300 subscribers, including app ...
'' 73, no. 4 (April–May).
* Boyer, Allen D. 2004. "
Sir Edward Coke
''Sir'' is a formal honorific address in English for men, derived from Sire in the High Middle Ages. Both are derived from the old French "Sieur" (Lord), brought to England by the French-speaking Normans, and which now exist in French only as p ...
, Ciceronianus: Classical Rhetoric and the Common Law Tradition." in ''Law, Liberty, and Parliament: Selected Essays on the Writings of
Sir Edward Coke
''Sir'' is a formal honorific address in English for men, derived from Sire in the High Middle Ages. Both are derived from the old French "Sieur" (Lord), brought to England by the French-speaking Normans, and which now exist in French only as p ...
'', ed. Allen D. Boyer.
Indianapolis
Indianapolis (), colloquially known as Indy, is the state capital and most populous city of the U.S. state of Indiana and the seat of Marion County. According to the U.S. Census Bureau, the consolidated population of Indianapolis and Marion ...
:
Liberty Fund
Liberty Fund, Inc. is an American private educational foundation headquartered in Carmel, founded by Pierre F. Goodrich. Through publishing, conferences, and educational resources, the operating mandate of the Liberty Fund was set forth in an un ...
.
* Burlamaqui, Jean Jacques. 1763. ''The Principles of Natural and Politic Law''. Trans. Thomas Nugent. Repr.,
Indianapolis
Indianapolis (), colloquially known as Indy, is the state capital and most populous city of the U.S. state of Indiana and the seat of Marion County. According to the U.S. Census Bureau, the consolidated population of Indianapolis and Marion ...
:
The Liberty Fund, 2006.
* Burns, Tony. 2000. "Aquinas's Two Doctrines of Natural Law." ''
Political Studies
Political science is the scientific study of politics. It is a social science dealing with systems of governance and power, and the analysis of political activities, political thought, political behavior, and associated constitutions and la ...
'' 48. pp. 929–946.
* Carlyle, A. J. 1903. '' A History of Medieval Political Theory in the West''. vol. 1.
Edinburgh
Edinburgh ( ; gd, Dùn Èideann ) is the capital city of Scotland and one of its 32 Council areas of Scotland, council areas. Historically part of the county of Midlothian (interchangeably Edinburghshire before 1921), it is located in Lothian ...
.
*
Cicero
Marcus Tullius Cicero ( ; ; 3 January 106 BC – 7 December 43 BC) was a Roman statesman, lawyer, scholar, philosopher, and academic skeptic, who tried to uphold optimate principles during the political crises that led to the estab ...
. ''De Legibus''.
*
Cochrane, Charles Norris. 1957. ''Christianity and Classical Culture: A Study of Thought and Action from
Augustus
Caesar Augustus (born Gaius Octavius; 23 September 63 BC – 19 August AD 14), also known as Octavian, was the first Roman emperor; he reigned from 27 BC until his death in AD 14. He is known for being the founder of the Roman Pri ...
to
Augustine
Augustine of Hippo ( , ; la, Aurelius Augustinus Hipponensis; 13 November 354 – 28 August 430), also known as Saint Augustine, was a theologian and philosopher of Berbers, Berber origin and the bishop of Hippo Regius in Numidia (Roman pr ...
''. Oxford:
Oxford University Press
Oxford University Press (OUP) is the university press of the University of Oxford. It is the largest university press in the world, and its printing history dates back to the 1480s. Having been officially granted the legal right to print books ...
.
* Corbett, R. J. 2009. "The Question of Natural Law in
Aristotle
Aristotle (; grc-gre, Ἀριστοτέλης ''Aristotélēs'', ; 384–322 BC) was a Greek philosopher and polymath during the Classical period in Ancient Greece. Taught by Plato, he was the founder of the Peripatetic school of phil ...
." ''History of Political Thought'' 30, no. 2 (Summer): 229–250
* Corwin, Edward S. 1955. ''The "Higher Law" Background of American Constitutional Law''. Ithaca, NY:
Cornell University Press
The Cornell University Press is the university press of Cornell University; currently housed in Sage House, the former residence of Henry William Sage. It was first established in 1869, making it the first university publishing enterprise in th ...
.
* Edlin, Douglas E. 2006. "Judicial Review Without a Constitution." ''Polity'' 38, no. 3 (July): 345–368.
* Farrell, James M. 1989. "John Adams's Autobiography: The Ciceronian Paradigm and the Quest for Fame." ''
The New England Quarterly
''The New England Quarterly'' is a peer-reviewed academic journal consisting of articles on New England's cultural, literary, political, and social history. The journal contains essays, interpretations of traditional texts, essay reviews and book r ...
'' 62, no. 4 (Dec. ).
*
Gert, Bernard,
998
Year 998 ( CMXCVIII) was a common year starting on Saturday (link will display the full calendar) of the Julian calendar.
Events
By place
Europe
* Spring – Otto III retakes Rome and restores power in the papal city. Crescenti ...
2005. ''Morality: Its Nature and Justification''
Description & outline Revised Edition, Oxford University Press.
* Haakonssen, Knud. 1996. ''Natural Law and Moral Philosophy: From
Grotius
Hugo Grotius (; 10 April 1583 – 28 August 1645), also known as Huig de Groot () and Hugo de Groot (), was a Dutch humanist, diplomat, lawyer, theologian, jurist, poet and playwright.
A teenage intellectual prodigy, he was born in Delft ...
to the
Scottish Enlightenment
The Scottish Enlightenment ( sco, Scots Enlichtenment, gd, Soillseachadh na h-Alba) was the period in 18th- and early-19th-century Scotland characterised by an outpouring of intellectual and scientific accomplishments. By the eighteenth century ...
.''
Cambridge
Cambridge ( ) is a university city and the county town in Cambridgeshire, England. It is located on the River Cam approximately north of London. As of the 2021 United Kingdom census, the population of Cambridge was 145,700. Cambridge bec ...
, UK:
Cambridge University Press
Cambridge University Press is the university press of the University of Cambridge. Granted letters patent by Henry VIII of England, King Henry VIII in 1534, it is the oldest university press
A university press is an academic publishing hou ...
.
* Haakonssen, Knud. 2000. "The Character and Obligation of Natural Law according to
Richard Cumberland Richard Cumberland may refer to:
* Richard Cumberland (philosopher) (1631–1718), bishop, philosopher
* Richard Cumberland (dramatist) (1732–1811), civil servant, dramatist
* Richard Cumberland (priest) (1710–1737), Archdeacon of Northa ...
." In ''English Philosophy in the Age of
Locke'', ed. M.A. Stewart. Oxford.
*
Heinze, Eric, 2013. ''The Concept of Injustice'' (Routledge)
*
Jaffa, Harry V. 1952. ''
Thomism
Thomism is the philosophical and theological school that arose as a legacy of the work and thought of Thomas Aquinas (1225–1274), the Dominican philosopher, theologian, and Doctor of the Church. In philosophy, Aquinas' disputed questions a ...
and
Aristotelianism
Aristotelianism ( ) is a philosophical tradition inspired by the work of Aristotle, usually characterized by deductive logic and an analytic inductive method in the study of natural philosophy and metaphysics. It covers the treatment of the socia ...
''. Chicago:
University of Chicago Press
The University of Chicago Press is the largest and one of the oldest university presses in the United States. It is operated by the University of Chicago and publishes a wide variety of academic titles, including ''The Chicago Manual of Style'', ...
.
* ''
Jefferson's Literary Commonplace Book''. Trans. and ed. Douglas L. Wilson.
Princeton, NJ
Princeton is a municipality with a borough form of government in Mercer County, in the U.S. state of New Jersey. It was established on January 1, 2013, through the consolidation of the Borough of Princeton and Princeton Township, both of whic ...
:
Princeton University Press
Princeton University Press is an independent publisher with close connections to Princeton University. Its mission is to disseminate scholarship within academia and society at large.
The press was founded by Whitney Darrow, with the financial su ...
, 1989.
* Maritain, Jacques. 2001. ''Natural Law: Reflections on theory and practice,'' tr. and ed. William Sweet, South Bend, IN: St Augustine's Press.
* McIlwain, Charles Howard. 1932. ''The Growth of Political Thought in the West: From the Greeks to the End of the Middle Ages''.
New York
New York most commonly refers to:
* New York City, the most populous city in the United States, located in the state of New York
* New York (state), a state in the northeastern United States
New York may also refer to:
Film and television
* '' ...
:
The Macmillan Company
Macmillan Inc. is a defunct American book publishing company. Originally established as the American division of the British Macmillan Publishers, the two were later separated and acquired by other companies, with the remnants of the original Am ...
.
*
* "Natural Law." ''International Encyclopedia of the Social Sciences''.
New York
New York most commonly refers to:
* New York City, the most populous city in the United States, located in the state of New York
* New York (state), a state in the northeastern United States
New York may also refer to:
Film and television
* '' ...
, 1968.
* Reinhold, Meyer. 1984. ''Classica Americana: The Greek and Roman Heritage in the United States''.
Detroit
Detroit ( , ; , ) is the largest city in the U.S. state of Michigan. It is also the largest U.S. city on the United States–Canada border, and the seat of government of Wayne County. The City of Detroit had a population of 639,111 at th ...
:
Wayne State University Press
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History
The Press has strong subjec ...
.
* Rommen, Heinrich A. 1947. ''The Natural Law: A Study in Legal and Social History and Philosophy''. Trans. and rev. Thomas R. Hanley. B. Herder Book Co.; repr.
Indianapolis
Indianapolis (), colloquially known as Indy, is the state capital and most populous city of the U.S. state of Indiana and the seat of Marion County. According to the U.S. Census Bureau, the consolidated population of Indianapolis and Marion ...
:
Liberty Fund
Liberty Fund, Inc. is an American private educational foundation headquartered in Carmel, founded by Pierre F. Goodrich. Through publishing, conferences, and educational resources, the operating mandate of the Liberty Fund was set forth in an un ...
, 1998.
* Scott, William Robert. 1900. ''
Francis Hutcheson: His Life, Teaching, and Position in the History of Philosophy'' Cambridge; repr. New York:
Augustus M. Kelley
Augustus M. Kelley, Publishing was a New York based publishing house named after its founder, Augustus M. Kelley (1913-1999). The exact dates of operation of the firm are not known. The concern primarily published non-fiction works and was noted fo ...
, 1966.
* Shellens, Max Salomon. 1959. "
Aristotle
Aristotle (; grc-gre, Ἀριστοτέλης ''Aristotélēs'', ; 384–322 BC) was a Greek philosopher and polymath during the Classical period in Ancient Greece. Taught by Plato, he was the founder of the Peripatetic school of phil ...
on Natural Law." ''Natural Law Forum'' 4, no. 1. pp. 72–100.
*
Skinner, Quentin. 1978. ''The Foundations of Modern Political Thought''. Cambridge.
*
Waldron, Jeremy. 2002. ''God, Locke, and Equality: Christian Foundations in Locke's Political Thought''. Cambridge University Press, Cambridge (UK). .
*
Wijngaards, John, ''AMRUTHA. What the Pope's man found out about the Law of Nature'', Author House 2011.
* Wilson, James. 1967. The Works of James Wilson. Ed. Robert Green McCloskey.
Cambridge, Mass.:
Harvard University Press
Harvard University Press (HUP) is a publishing house established on January 13, 1913, as a division of Harvard University, and focused on academic publishing. It is a member of the Association of American University Presses. After the retirem ...
.
* Woo, B. Hoon. 2012.
Pannenberg's Understanding of the Natural Law. ''Studies in Christian Ethics'' 25, no. 3: 288–290.
*
Zippelius, Reinhold. ''Rechtsphilosophie, 6th edition, § 12''. C.H. Beck, Munich, 2011. .
External links
*
Stanford Encyclopedia of Philosophy
The ''Stanford Encyclopedia of Philosophy'' (''SEP'') combines an online encyclopedia of philosophy with peer-reviewed publication of original papers in philosophy, freely accessible to Internet users. It is maintained by Stanford University. Eac ...
:
*
The Natural Law Tradition in Ethics by Mark Murphy, 2002.
*
Aquinas' Moral, Political, and Legal Philosophy by
John Finnis
John Mitchell Finnis, , (born 28 July 1940) is an Australian legal philosopher, jurist and scholar specializing in jurisprudence and the philosophy of law. He is the Biolchini Family Professor of Law, emeritus, at Notre Dame Law School and a P ...
, 2005.
*
Natural Law Theories by John Finnis, 2007.
by Kenneth Einar Himma
Aquinas on natural lawA clear introduction to Natural Law
* Jonathan Dolhenty, Ph.D.
"An Overview of Natural Law"* Wendy McElroy, McElroy, Wendy]
"The Non-Absurdity of Natural Law" ''The Freeman'', February 1998, Vol. 48, No. 2, pp. 108–111
* John Wijngaards
"The controversy of Natural Law"
Lex Naturalis, Ius Naturalis: Law as Positive Reasoning and Natural Rationalityby Eric Engle, (Elias Clarke, 2010).
{{DEFAULTSORT:Natural Law
Natural law,
Thomistic jurisprudence
Ethical theories
Law