The concept of natural law theory embodies an ongoing pursuit of ultimate
justice. It's essential to recognize that natural law isn't solely of
theoretical importance; its historical impact attests to its practical
significance. This impact is evident in its role in fostering liberalism and
individual freedom, motivating individuals to resist authoritarian rule in both
France and Germany.
Natural philosophy has held a significant position in the domains of politics,
law, religion, and ethics since ancient times. It has functioned as a force for
harmonization, synthesis, and the promotion of peace and justice across various
periods, safeguarding the public against injustice, tyranny, and misrule.
Blackstone, in recognizing the role of natural law in liberating people from
politico-legal disorder and tracing its evolution, asserted that it is superior
to all other laws, co-existing with mankind and emanating from God Himself. Any
man-made law contrary to the law of nature, he argued, lacks validity.
The perpetual quest for absolute justice is reflected in the natural law theory.
It is crucial not to perceive natural law as merely theoretical; its practical
value is historically substantiated. It sparked a wave of liberalism and
individual freedom, inspiring revolts against totalitarian rule in France and
Germany. The origins, development, and validity of international law owe
themselves to the philosophy of natural law, with the law of nations drawing its
force and authority from it.
Dr. Friedmann asserted that the history of natural law tells a tale of mankind's
pursuit of absolute justice and its eventual failure. Consequently, as social
and political conditions change, notions about natural law also evolve, acting
as a catalyst for transforming prevailing legal systems. The ideology of a
universal order governing all individuals and the inalienable rights of the
individual constitutes the most significant contribution of natural law theory
to legal systems.
In ancient societies, natural law was believed to have a divine origin, while
the medieval period ascribed it a religious and supernatural basis. In modern
times, it finds a robust political and legal foundation. Lord Lloyd noted that
natural law serves as a law of self-preservation or a restriction on certain
behaviors. In modern legal systems, it finds expression in the pursuit of
socio-economic justice. The entire philosophy of human rights is an outcome of
the growing importance of natural justice principles. The natural law theory
acts as a catalyst for promoting social transformation, steering societies away
from stagnation.
History
The narrative of natural law throughout history unfolds as humanity's quest for
absolute justice, marked by repeated attempts and ultimate failures. Over the
last 2,500 years, the concept of natural law has resurfaced in various forms,
reflecting the ongoing pursuit of an ideal higher than positive law, even after
facing rejection and ridicule. As societal and political conditions have
evolved, so too have the perceptions of natural law. The consistent element amid
these changes is the appeal to a higher authority than positive law, serving
both to justify existing authority and fuel revolts against it.
Natural law has served diverse purposes. It played a pivotal role in reshaping
the ancient Roman civil law into a comprehensive and cosmopolitan system. It
became a weapon wielded by both the medieval Church and the German emperors in
their ongoing conflicts. The assertion of the validity of international law and
the plea for individual freedom against absolutism have also been grounded in
the principles of natural law. Furthermore, American judges, interpreting the
Constitution, invoked natural law to resist state legislation attempting to
modify and restrict the unbridled economic freedom of the individual.
The Legacy Of Greece And Rome
The concept of natural law has ancient roots, dating back to the beginnings of
philosophy. Similar to Aristotle's assertion that wonder is foundational to
philosophy, it is also integral to the development of natural law.
The emergence of the idea of natural law occurs when individuals recognize that
not all laws are unchangeable divine decrees. This realization takes place as
critical reasoning reflects on historical changes in laws and customs,
acknowledging the diversity in legal and moral institutions within its own
community and beyond. In the face of this diversity, human reason distinguishes
between divine and human law, leading to an encounter with the concept of
natural law.
This raises questions about the moral foundation of human laws, the binding
nature of laws on an individual's conscience, and the ethical basis for the
coercive power of the state's legal and moral order. These inquiries are closely
linked to discussions about the best laws or an ideal state, a topic that has
intrigued proponents of various natural law systems since the time of Plato.
Another related idea emerges, suggesting that tribal deities are not the
ultimate religious reality. Behind the popular images of tribal deities, there
exists an eternal, all-wise Lawgiver with the authority to bind and release.
Given these considerations, it is understandable that the philosophical concept
of natural law originated in the realm of Western culture, particularly among
the ancient Greeks. This dynamic and intellectually astute civilization, endowed
with an early awareness of individual consciousness and significant political
organization, laid the foundations for Western political philosophy.
Heraclitus of Ephesus (536-470 B.C.) is renowned for his assertion that "all
things flow; nothing abides." This perpetual change led him to the concept of an
eternal norm and harmony that remains unchangeable amid the constant variation
of phenomena. A fundamental law, a divine common logos, a universal reason,
governs these natural occurrences, emphasizing order over chance, lawlessness,
or irrational change. According to Heraclitus, the essence of human nature and
ethical goals lies in aligning individual and social life with the general law
of the universe, a primordial norm guiding moral behaviour.
He emphasized that wisdom, defined as speaking the truth and attuning oneself to
nature, is a virtue common to all. Those who seek intelligence must adhere to
this common wisdom, akin to how a city adheres to its laws, which are, in turn,
inspired by one divine law. Heraclitus, often considered a conservative
aristocrat, urged people not to resist the laws, as they embody the divine law.
On the contrary, he believed that people should defend the laws as they would
their city walls. Heraclitus introduced the idea of an eternal law of nature,
harmonizing with human reason as it shares in the eternal logos, amidst the
diversity of human laws. The contingency and diversity of human laws, Heraclitus
argued, reveal the truth of the eternal law, discernible through rational
thought, whereas sense perception, limited to the eye and the ear, recognizes
only differences. The concept of natural law emerged for the first time as a
natural, unchangeable law from which all human laws derive their force.
Heraclitus crafted his doctrine with a practical purpose: to emphasize the value
of laws and their binding force in countering the unpredictability of the
uncritical masses. The masses, prone to various novelties and lacking
discrimination, were susceptible to erratic shifts in opinion and easily swayed
by the demagogy of the Sophists.
Judging the Sophists fairly is a complex task. Their teachings, primarily known
from Plato's dialogues, their formidable adversary, have reached us in a
fragmented form. Additionally, as popular orators inclined toward demagogy, the
Sophists favoured oversimplified slogans and paradoxical statements,
contributing to a dark reputation as philosophical ropedancers, rationalistic
revolutionaries, and scornful of the law. Plato, in particular, played a
significant role in shaping this negative perception. However, this judgment may
be overly harsh. The Sophists, appearing as revolutionary rationalists to the
Greeks, were driven by their bold criticism of contemporary social institutions
and cynical scepticism in political matters. Moreover, their reputation was
influenced by the high regard their opponents had for the laws and the
city-state (polis).
In the Greek polis, laws were a source of pride for citizens, and the Sophists,
mostly foreigners, stood out in contrast. Much like Heraclitus, who deemed laws
equal in worth to the city walls, philosophers treated the laws, referred to as
nomoi, with utmost respect. Those without a polis were considered barbarians.
Socrates, despite distinguishing between what is naturally right and legally
right, unequivocally deemed the laws of Athens as "right."
Citizens were thus obligated to obey them, a sentiment he upheld until the end.
Plato, sharing a similar view, considered the laws of Athens largely inviolable.
Although he acknowledged room for improvement in the social order based on these
laws, he never deemed it inherently bad. Consequently, to aristocrats in both
political outlook and thought, the social criticism of the Sophists was not
merely an attack on the foundations of a specific polis order but also a
malicious assault on the right order of the polis itself.
Despite these revolutionary ideas, Plato remained staunchly attached to the
institution of slavery, and Aristotle consistently sought to justify it through
his theory that certain individuals are slaves by nature.
Plato and Aristotle were primarily, albeit to varying extents, focused on the
concept of goodness and its manifestation within the state. Their interest,
however, wasn't primarily centred around the individual. Instead, they are often
characterized as having inclinations toward state socialism or totalitarianism.
For them, in alignment with the notion of order, the primary and foundational
objective of justice wasn't freedom for its own sake but rather order. Freedom
was deemed valuable only to the extent that it contributed to the establishment
of order. Consequently, the law took precedence in their thoughts. They
diligently sought to uncover and establish the ethical foundation of laws-not in
the manner of the Sophists, who sought freedom from laws.
Their attention was directed towards the state and its order as the ethical
realm, the realization of all virtue. This focus clarifies their persistent
concern with determining the optimal form of state or government, where the
significance of the individual, emphasized by the Sophists, is overshadowed. If
we were to view natural law through the lens of its traditionally associated
socio-philosophical individualism, there would be minimal space for the concept
of natural law in the philosophies of Plato and even Aristotle.
Natural Law
The notion of natural law has evolved through various iterations. Its origins
trace back to the ancient Greeks, who conceptualized a universal governed by an
eternal, unchanging law, distinguishing between what is just by nature and what
is just by convention. Stoicism provided a comprehensive classical formulation
of natural law, asserting that the universe operates under a rational principle.
The Stoics contended that all humans possess reason and can comprehend and
adhere to its laws.
While individuals, endowed with free will, may not always obey the law, acting
in accordance with reason is deemed as "following nature." Christian
philosophers embraced and adapted the Stoic theory, equating natural law with
the law of God. Thomas Aquinas, for instance, viewed natural law as a
discernible aspect of God's eternal law accessible to humans through reason.
Positive law, or human law, is then seen as the application of natural law to
specific social contexts. Similar to the Stoics, Aquinas believed that a
positive law contradicting natural law is not true law.
During the Renaissance and Reformation, as society secularized, natural law
theory found new grounding in human reason. Hugo Grotius, a 17th-century Dutch
jurist, posited that humans are inherently reasonable and social, and rules
dictated by reason enable harmonious coexistence. Grotius extended this argument
to develop the first comprehensive theory of international law.
Natural law theory eventually led to the concept of "natural rights," championed
by John Locke. Locke argued that individuals in a state of nature are free and
equal but surrender certain rights upon entering society for security and the
common good. Fundamental prerogatives rooted in natural law, pertaining to
personal integrity and property, are retained as natural rights. This theory
served as a philosophical foundation for both the American and French
revolutions, influencing Thomas Jefferson's articulation of "inalienable rights"
in the United States Declaration of Independence.
In the 19th century, natural law theory waned in influence as utilitarianism,
Bentham's positivism, materialism, and the historical school of jurisprudence
gained dominance. However, in the 20th century, natural law theory experienced a
resurgence, partly in response to the rise of totalitarianism and increased
global interest in human rights. In the context of contemporary discussions, we
now shift our focus to Classical Realism's interpretation of natural law-a
concept defined as an "unwritten law" applicable universally and recognizable by
human reason alone, representing a body of moral principles shared by all
humankind.
Natural Law: Its Meaning And Definition
There is no consensus on the precise definition and meaning of natural law, and
the term 'natural law theory' has been construed differently over time, adapting
to the evolving needs of legal thought. Nevertheless, the most remarkable
quality of the natural law theory lies in its adaptability to address new
challenges posed by a changing society. Advocates of natural law philosophy
posit that it is a law intrinsic to human nature, existing independently of
conventions, legislation, or any institutional frameworks.
Dias and Hughes characterize natural law as a legal system whose validity stems
from its inherent values, distinguished by its dynamic and organic properties,
rather than being predetermined by the State or its agencies.
Cohen contends that natural law isn't a set of enacted or interpreted laws
enforced by courts. Instead, it represents a perspective and a humanistic
approach adopted by judges and jurists. It encompasses a myriad of ideals,
including morality, justice, reason, good conduct, freedom, equality, liberty,
ethics, and more.
From a jurisprudential standpoint, natural law comprises rules and principles
believed to originate from a supreme source beyond political or worldly
authority. Some thinkers attribute these rules to a divine origin, while others
argue that they arise from nature or reason. Even modern sociological jurists
have turned to natural law to underpin their sociological ideology and the
concept of law as a means to reconcile conflicting interests within society.
Natural Law In Greek Period
In his Academy, Aristotle engaged in a systematic and technical exploration of
Greek jurisprudence. Isaeus, a jurist from the fourth century, is considered the
first notable figure in Greek jurisprudence, while Aristotle and Theophrastus
stand out as the foremost jurists for their ground breaking work in writing an
"Esprit des Lois" (Spirit of Laws) and comparing various legislations and
constitutions. Although the development of Greek jurisprudence and court
practices from Solon to Aristotle showed only modest progress, the underlying
conception of law has deep roots in Greek thought, evolving through an extended
process of intellectual exploration.
The Greeks employed multiple terms to convey the idea of law. The first term,
associated with geometry, metaphorically signifies what is right, akin to a
right line-rectum, regula-as seen in orthopaedics. In Greek, there is no
equivalent to the Latin "jus," which denotes that which unites or binds
individuals, encompassing concepts of joining (jungere), yoke (jugum), and
marriage (conjugium).
The second term refers to law created by reason and rooted in reason,
contrasting with notions of fate or destiny. It also denotes a relationship,
principle, or formula. The third term, absent in Homer and emerging only in
Hesiod's works around the seventh century, initially denotes old and traditional
customs. It also encompasses habits arising from the necessity of conforming to
prevailing conditions, encompassing political and social environments, as well
as the psychological dispositions associated with those conditions.
The fourth term implies the idea of sharing, division, separation, or equal
parts and is applied to signify law, justice, or statute.
The fifth term represents the abstract and absolute concept of right or justice.
The sixth term is a component of the fifth, similar to how "lex" is a part of
"jus" in the Latin legal context.
Natural Law Institute Proceedings
It indicates the path toward a goal, as evidenced by the Latin words: dicere,
digitur, indicare, judicare. Aristotle aptly refers to natural law as justice
recognized and acknowledged without any formal or conventional declaration,
arising from human nature and grounded in the essence of our existence. The
Greeks possessed a distinct concept of law. Unlike our modern understanding,
which involves a court, a judge, and a set of technical rules managed by
specialists, the Greeks viewed the law through a more metaphysical lens.
They perceived it as absolute and enduring, something not to be easily altered,
considering it, like poetry, of divine origin. While Greek laws underwent
occasional changes and revisions, the Greeks generally regarded the law as
possessing sovereignty. Socrates, in the Crito, explicitly expresses his
subservience to the law, engaging in a dialogue with the Laws and acknowledging
the absolute authority of the law.
For the Greeks, law held a position above society; it served as the binding
force of the city and was intricately tied to the city's formation. The Greek
city, essentially an ethical society, was originally established to ensure
justice for all, functioning as an educational institution with the city itself
serving as the vehicle for citizens' education. The central theme here is
education; Plato's Republic outlines the ideal curriculum for secondary
education, while the Laws present the optimal curriculum for the university
level.
The term "natural law" is fraught with ambiguity, confusion, and potential
misinterpretation, particularly for us, inheritors of a two-thousand-year-old
Christian legacy. In contrast to the Greeks, who believed in city education and
generation, the expression "natural law" carries a specific Christian
connotation today. In the context of pagan Greece, natural law was viewed solely
as a product of human reason. Furthermore, the contemporary understanding of the
term "law" implies something fixed, proclaimed, and written, while the addition
of "natural" suggests a connection to human nature.
However, natural law is inherently unwritten, making it challenging to define
and grasp definitively. It is universal, with all individuals possessing a
natural, infallible, and practical understanding of it: the imperative to do
good, avoid evil, punish transgressors, and preserve one's own being. These
principles are immanent in human nature, integral to our essence, and represent
the universal concept of justice.
Ancient Period:
The narrative of natural law finds its origins in the philosophy
of ancient Greece, and its true significance remains a subject of ongoing
debate. The term encompasses a variety of elements under the umbrella of Greek
Philosophy and Medieval Rationalism.
In the Greek tradition, law was traditionally closely linked to both justice and
ethics. The interplay between nature and institution stands out as a hallmark of
Greek enlightenment in shaping conceptions. The guiding principle is that which
holds universal validity, determined by nature for all humanity, transcending
distinctions of people and time. Whatever nature decrees is inherently just and
authorized.
The utilization of natural law, in its diverse manifestations, has undergone
significant fluctuations throughout its historical trajectory. Various theories
of natural law exist, differing primarily in their perspectives on the influence
of morality in establishing the legitimacy of legal norms. In the context of my
research within this seminar, I address the different applications of natural
law individually, opting not to consolidate them into a singular theory.
Plato (437-347 B.C)
While Plato does not explicitly articulate a theory of natural law (he seldom
uses the phrase "natural law" except in Gorgias 484 and Timaeus 83e), John Wild
suggests that elements akin to many natural law theories can be discerned in
Plato's concept of nature. According to Plato, our existence unfolds within an
orderly universe. Fundamental to this order or nature are the forms, with the
Form of the Good being paramount. Plato describes it as "the brightest region of
Being," attributing it as the cause of all things.
The perception of the Form of the Good guides individuals toward wise actions.
In the Symposium, the Good is closely linked with the Beautiful. In the
Republic, Plato envisions the ideal community as one established in accordance
with nature. Here, he underscores the necessity for a meticulous division of
labor, asserting that "each man ought to do his work to which he is called upon
by his capacities."
Aristotle (384-322 B.C)
Aristotle's connection with natural law is often attributed to the
interpretation given to his works by Thomas Aquinas, although there is ongoing
debate about whether Aquinas accurately understood Aristotle's intentions. This
interpretation had a notable impact on early translations of Aristotle's
passages, with some later translations presenting a more faithful rendering.
Aristotle acknowledges that natural justice is a subtype of political justice,
specifically the system of distributive and corrective justice envisioned in the
best political community. If this were to be codified as law, it could be termed
natural law. However, Aristotle does not delve into this possibility and even
suggests in the Politics that the best regime might not govern through law at
all.
The primary evidence supporting the idea that Aristotle believed in natural law
is found in the Rhetoric. Aristotle notes the existence of a "common" law, in
addition to the "particular" laws established by each community, which aligns
with nature. This universal law is described as the law of Nature, representing
a natural justice and injustice applicable to all individuals, even those
without any formal association or covenant.
The famous quote, "Not of to-day or yesterday it is, But lives eternal: none can
date its birth," underscores the enduring nature of this universal law. However,
some critics argue that the context of this statement suggests that Aristotle
may have only advised the rhetorical advantage of appealing to such a law,
especially when the local "particular" law opposed the argument being presented.
They also contend that Aristotle deemed two out of the three proposed candidates
for a universally valid, natural law in this passage to be incorrect.
Consequently, there is ongoing dispute regarding Aristotle's theoretical role in
the natural law tradition.
Socrates (470-399 B.C)
Socrates holds a significant position among the Stoic philosophers of ancient
times, recognizing and advocating for the importance of truth and moral values.
His philosophy asserts the existence of a natural moral law, analogous to the
natural physical laws. Socrates contends that human insight enables individuals
to discern between good and bad, facilitating an appreciation for moral values.
According to him, 'virtue is knowledge,' and anything lacking in virtue is
considered 'sin.' Socrates categorizes justice into two types:
- Natural justice and
- Legal justice.
Natural justice follows universal principles applicable uniformly across all
locations, whereas legal justice may vary depending on the specificities of time
and place.
Socrates emphasizes that the reasonability of a particular law should be
evaluated through human insight. Laws deemed appropriate are those in harmony
with the principles of the law of nature and supported by human reasoning.
Natural law, according to Socrates, is a subset of law that transcends specific
circumstances and endures through different periods.
It's crucial to note that while Socrates acknowledges the authority of positive
law, he argues for the necessity of natural law in ensuring the security and
stability of the community. This underscores the idea that, for Socrates, a
balance between positive law and natural law is essential for the well-being of
a society.
Conclusion
These reflections lead to the conclusion that natural law is far from being a
mere academic speculation, reserved for those with leisure to contemplate. It is
fundamental in practical life. The concept of natural law has had a peculiar
journey in Greece. When considering the expressions of Homer, Hesiod, Theognis,
Sophocles, Xenophon, and Plato, it becomes apparent that, in their views,
natural law is divine and universal. It is perceived as a gift from the gods,
akin to justice and poetry, and is believed to exist everywhere in the world.
Rooted in reason, inherent in human nature, natural law, for these thinkers, is
immanent in humanity.
For Pythagoras and Heraclitus, the foundational principles of justice underlying
natural law are found in equality, insight, the law of retaliation, and the law
of reason. Justice is viewed as harmony and equilibrium, with man positioned at
the center of the cosmos. Plato sees justice as a spirit, a guiding force
animating human actions. The inner sense of justice, discerned by the
conscience, holds a higher spiritual truth than the laws of the state. Natural
law, according to Plato, is eternal, a divine gift from the gods.
With Aristotle, natural law is singular, divine, and universal. The Stoics, on
the other hand, perceive it as human and universal, as diverse as individuals
themselves. The destiny of natural law takes a peculiar turn, initially labeled
divine and then gradually becoming human over the centuries.
This destiny is likened to that of Fire, initially divine and a source of love
and unity under the gods, but when placed in the hands of Prometheus, it becomes
the origin of arts, inventions, and the principle of division on Earth. Yet, a
more tragic and peculiar destiny is that of humanity in the world. The Greeks,
focusing intensely on man, derived their concept of natural law from their study
of human nature. It stands as one of their greatest contributions to global
culture and civilization, a new idea that remains relevant today.
The Greeks, with their poetic insight, crafted words to encapsulate this
concept. Natural law, as seen by the Greeks, imbues Greek law with humanity and
personality, possessing a soul and spirit. The poetic essence of natural law is
so profound that it cannot be separated from the divine. The Greeks, with their
childlike awe, expressed this perspective, and their inventions and philosophy
still feel fresh today. Natural law, in essence, is the manifestation of the
divine law in humanity.
When individuals respect the divine within themselves, they live in peace, for
the divine, representing measure and order, is synonymous with peace. Socrates,
gazing at the Parthenon, saw it as a symbol of order, harmony, measure, and
proportion-a representation of natural law for the ancient Greeks.
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