Natural Law

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

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

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

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

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

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

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

See also Fundamental Rights; Higher Law.

Bibliography

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

Christopher Wolfe