Natural law, which was for many centuries the basis of the predominant Western political thought, is rejected in our time by almost all students of society who are not Roman Catholics. It is rejected chiefly on two different grounds. Each of these grounds corresponds to one of the two schools of thought which are predominant today in the West, positivism and historicism. According to positivism, genuine knowledge is scientific knowledge; scientific knowledge can never validate value judgments; and all statements asserting natural law are value judgments. According to historicism, science (i.e., modern science) is but one historical, contingent form of man’s understanding of the world; all such forms depend on a specific Weltanschauung; in every Weltanschauung the “categories” of theoretical understanding and the basic “values” are inseparable. Hence the separation of factual judgments from value judgments is in principle untenable; since every notion of good and right belongs to a specific Weltanschauung, there cannot be a natural law binding man as man. Given the preponderance of positivism and historicism, natural law is today primarily a historical subject.
By “natural law” is meant a law that determines what is right and wrong and that has power or is valid by nature, inherently, hence everywhere and always. Natural law is a “higher law,” but not every higher law is natural. The famous verses in Sophocles’ Antigone (449-460) in which the heroine appeals from the man-made law to a higher law do not necessarily point to a natural law; they may point to a law established by the gods, or what in later parlance is called a positive divine law. The notion of natural law presupposes the notion of nature, and the notion of nature is not coeval with human thought; hence there is no natural law teaching, for instance, in the Old Testament. Nature was discovered by the Greeks in contradistinction to art (the knowledge guiding the making of artifacts) and, above all, to nomos (law, custom, convention, agreement, authoritative opinion). In the light of the original meaning of “nature,” the notion of “natural law” (vóµos τη̂;s ϕύσєos) is a contradiction in terms rather than a matter of course.
The primary question is less concerned with natural law than with natural right, i.e., what is by nature right or just. Is all right conventional (of human origin), or is there some right which is natural (ϕύσєί δωkαω̄ov)? This question was raised on the assumption that there are things which are by nature good (health, strength, intelligence, courage, etc.). Conventionalism (the view that all right is conventional) derived its support in the first place from the variety of notions of justice, a variety incompatible with the supposed uniformity of a right that is natural. Yet the conventionalists could not deny that justice possesses a core that is universally recognized, so much so that injustice must have recourse to lies or to “myths” in order to become publicly defensible.
The precise issue then concerned the status of that right which is universally recognized: is that right merely the condition of the living together of a particular society (i.e., of a society constituted by covenant or agreement, with that right deriving its validity from the preceding covenant), or is there a justice among men as men which does not derive from any human arrangement? In other words, is justice based only on calculation of the advantage of living together, or is it choiceworthy for its own sake and therefore “by nature”? The two possible answers were given prior to Socrates. For our knowledge of the thought of the pre-Socratic philosophers, however, we depend entirely on fragments of their writings and on reports by later thinkers.
Socrates’ disciple Plato is the first philosopher whose writings proper have come down to us [seePlato]. While Plato cannot be said to have set forth a teaching of natural law (cf. Gorgias 483E and Timaeus 83e), there can be no doubt that he opposed conventionalism; he asserts that there is a natural right, i.e., something which is by nature just. The naturally just or right is the “idea” of justice (Republic 50lb; also see 500c, d; 484c, d), justice itself, justice pure and simple. “Justice” is defined as doing one’s own business or, rather, doing one’s own business “in a certain manner,” i.e., “well” (433a, b; 443d) . A man (or, rather, his soul) or a city is just if each of its parts does its work well and thus the whole is healthy; a soul or a city is just if it is healthy or in good order (cf. 444d, e) . The soul is in good order if each of its three parts (reason, spiritedness, desire) has acquired its specific virtue or perfection, and as a consequence of this the individual is well ordered toward his fellow men and especially his fellow citizens. The individual is well ordered toward his fellow citizens if he assigns to each what is intrinsically good for him and, hence, what is intrinsically good for the city as a whole. From this it follows that only the wise man or the philosopher can be truly just.
There is a natural order of the virtues and the other good things; this natural order is the standard for legislation (Laws 631B, D). One may therefore say that the natural right in Plato’s sense is in the first place the natural order of the virtues as the natural perfections of the human soul (cf. Laws 765E-766A), as well as the natural order of the other things that are by nature good. But assigning to each what is good for him by nature is impossible in any society. Such assigning requires that the men who know what is by nature good for each and all, the philosophers, be the absolute rulers and that absolute communism (communism regarding property, women, and children) be established among those citizens who give the commonwealth its character; it also requires equality of the sexes. This order is the political order according to nature, as distinguished from and opposed to the conventional order (Republic 456B, C; cf. 428E) .Thus natural right in Plato’s sense also determines the best regime, in which those who are best by nature and training, the wise men, rule the unwise with absolute power, assigning to each of them what is by nature just, i.e., what is by nature good for him. The actualization of the best regime proves indeed to be impossible or at least extremely improbable; only a diluted version of that political order which strictly corresponds to natural right can in reason be expected.
The establishment of the best regime is obstructed in the last analysis by the body, the only thing that is by nature private (Laws 739c; Republic 464D), or wholly incapable of being common. Accordingly, sheer bodily (brachial) force must be recognized as having a natural title to rule, a title indeed inferior to that deriving from wisdom but not destroyed by it (Laws 690A, C). Political society requires the dilution of the perfect and exact right, of natural right proper: of the right in accordance with which the wise would assign to everyone what he deserves according to his virtue and therefore would assign unequal things to unequal people. The principle governing the dilution is consent, i.e., the democratic principle of simple equality, according to which every citizen possesses the same title to rule as every other (Laws 756E-758A). Consent requires freedom under law. Freedom here means both the participation in political rule of those unwise men who are capable of acquiring common or political virtue, and their possessing private property. Law can never be more than an approximation to the verdicts of wisdom, yet it is sufficient to delineate the requirements of common or political virtue, as well as the rules of property, marriage, and the like.
It is in accordance with the general character of Aristotle’s philosophy that his teaching regarding natural right is much closer to the ordinary understanding of justice than is Plato’s [seeAristotle]. In his Rhetoric he speaks of “the law according to nature” as the unchangeable law common to all men, but it is not entirely certain that he takes that law to be more than something generally admitted and hence useful in forensic rhetoric. At least two of his three examples of natural law do not agree with what he himself regarded as naturally right (Rhetoric 1373b4-18). In the Nicomachean Ethics(1134bl8-1135a5) he speaks not, indeed, of natural law but of natural right. Natural right is that right which has everywhere the same power and does not owe its validity to human enactment. Aristotle does not give a single explicit example; but he seems to imply that such things as helping fellow citizens who are victims of misfortune resulting from the performance of a civic duty, and worshiping the gods by sacrifices, belong to natural right. If this interpretation is correct, natural right is that right which must be recognized by any political society if it is to last and which for this reason is everywhere in force. Natural right thus understood delineates the minimum conditions of political life, so much so that sound positive right occupies a higher rank than natural right. Natural right in this sense is indifferent to the difference among regimes, whereas positive right is relative to the type of regime—positive right is democratic, oligarchic, etc. (cf. Politics 1280a8-22). “Yet,” Aristotle concludes his laconic statement on natural right, “one regime alone is by nature the best everywhere.” This regime, “the most divine regime,” is a certain kind of kingship, the only regime that does not require any positive right (Politics 1284a4-15; 1288al5-29). The flooring and the ceiling, the minimum condition and the maximum possibility of political society, are natural and do not in any way depend on (positive) law.
Aristotle does not explicitly link his teaching regarding natural right with his teaching regarding commutative and distributive justice, but the principles of commutative and distributive justice cannot possibly belong to merely positive right. Commutative justice is the kind of justice which obtains in all kinds of exchange of goods and services (it therefore includes such principles as the just price and the fair wage) as well as in punishment; distributive justice has its place above all in the assignment of political honors or offices. Natural right understood in terms of commutative and distributive justice is not identical with natural right as delineating the minimum conditions of political life: the bad regimes habitually counteract the principles of distributive justice and last nevertheless. Aristotle is no longer under a compulsion to demand the dilution of natural right. He teaches that all natural right is changeable; he does not make the distinction made by Thomas Aquinas between the unchangeable principles and the changeable conclusions. This would seem to mean that sometimes, in extreme or emergency situations, it is just to deviate even from the most general principles of natural right.
Natural law becomes a philosophic theme for the first time in Stoicism. It there becomes the theme not primarily of moral or political philosophy but of physics (the science of the universe). The natural (or divine or eternal) law is identified with God, the highest god (fire, ether, or air), or his reason, i.e., with the ordering principle that pervades and thus governs the whole by molding eternal matter. Rational beings can know that law and knowingly comply with it insofar as it applies to their conduct. In this application natural law directs man toward his perfection, the perfection of a rational and social animal; it is “the guide of life and the teacher of the duties” (Cicero, On the Nature of the Gods I, 40); it is the dictate of reason regarding human life. Thus the virtuous life as choiceworthy for its own sake comes to be understood as compliance with natural law—with a law, and hence as a life of obedience.
Inversely, the content of natural law is the whole of virtue. The virtuous life as the Stoics understood it is, however, not identical with the life of moral virtue (as distinguished from the life of contemplation), for one of the four cardinal virtues is wisdom that is above all theoretical wisdom; the virtuous man is the wise man or the philosopher. One is tempted to say that the Stoics treat the study of philosophy as if it were a moral virtue, i.e., as something which could be demanded from most men. Justice, another of the four virtues, consists primarily in doing what is by nature right. The foundation of right is man’s natural inclination to love his fellow men, not merely his fellow citizens : there is a natural society comprising all men (as well as all gods). The inclination toward the universal society is perfectly compatible with the equally natural inclination toward political society, which is of necessity a particular society. The unchangeable and universally valid natural law—a part of which determines natural right, i.e., that with which justice, in contradistinction to wisdom, courage, and temperance, is concerned—is the ground of all positive law; positive laws contradicting natural law are not valid.
It is sometimes asserted that the Stoics differ from Plato and Aristotle by being egalitarians. Differing from Aristotle (but not from Plato), they denied that there are slaves by nature; but this does not prove that according to them all men are by nature equal in the decisive respect, i.e., as regards the possibility of becoming wise or virtuous (Cicero, On the Ends of the Good and Bad Things iv, 56). The peculiarity of the Stoics, in contradistinction to Plato and Aristotle, that explains why the Stoics were the first philosophers to assert unambiguously the existence of natural law would seem to be the fact that they teach in a much less ambiguous way than Plato, to say nothing of Aristotle, the existence of a divine providence that supplies divine sanctions for the compliance or noncompliance with the requirements of virtue. (Cf. Cicero, Laws II, 15-17; Republic III, 33-34.)
The Stoic natural law teaching is the basic stratum of the natural law tradition. It affected Roman law to some extent. With important modifications it became an ingredient of the Christian doctrine.
The Christian natural law teaching reached its theoretical perfection in the work of Thomas Aquinas [seeAquinas]. It goes without saying that in the Christian version, Stoic corporealism (“materialism”) is abandoned. While natural law retains its status as rational, it is treated within the context of Christian (revealed) theology. The precise context within which Thomas treats natural law is that of the principles of human action; these principles are intrinsic (the virtues or vices) or extrinsic; the extrinsic principle moving men toward the good is God, who instructs men by law and assists them by his grace. Natural law is clearly distinguished from the eternal law—God himself or the principle of his governance of all creatures —on the one hand, and the divine law, i.e., the positive law contained in the Bible, on the other. The eternal law is the ground of the natural law, and natural law must be supplemented by the divine law if man is to reach eternal felicity and if no evil is to remain unpunished. All creatures participate in the eternal law insofar as they possess, by virtue of divine providence, inclinations toward their proper acts and ends. Rational beings participate in divine providence in a more excellent manner because they can exercise some providence for themselves; they can know the ends toward which they are by nature inclined as good and direct themselves toward them. Man is by nature inclined toward a variety of ends which possess a natural order; they ascend from self-preservation and procreation via life in society toward knowledge of God. Natural law directs men’s action toward those ends by commands and prohibitions.
Differently stated, as a rational being man is by nature inclined toward acting according to reason; acting according to reason is acting virtuously; natural law prescribes, therefore, the acts of virtue. Man by nature possesses knowledge of the first principles of natural law, which are universally valid or unchangeable. Owing to the contingent character of human actions, however, those conclusions from the principles which are somewhat remote possess neither the evidence nor the universality of the principles themselves; this fact alone would require that natural law be supplemented by human law. A human law that disagrees with natural law does not have the force of law (Summa theologica I, 2, 90 ff.). All moral precepts of the Old Testament (as distinguished from its ceremonial and judicial precepts) can be reduced to the Decalogue; they belong to the natural law. This is true in the strictest sense of the precepts of the Second Table of the Decalogue, i.e., the seven commandments which order men’s relations among themselves (Exodus 20.12-17). The precepts in question are intelligible as self-evident even to the people and are at the same time valid without exception; compliance with them does not require the habit of virtue (Summa theologica I, 2, 100).
A sufficient sanction is supplied by divine punishment for transgressions of the natural law, but it is not entirely clear whether human reason can establish the fact of such punishment; Thomas surely rejects the Gnostic assertion that God does not punish and the assertion of certain Islamic Aristotelians that the only divine punishment is the loss of eternal felicity. He does say that sin is considered by the theologians chiefly insofar as it is an offense against God, whereas the moral philosophers consider sin chiefly insofar as it is opposed to reason. These thoughts could lead to the view of some later writers that natural law strictly understood is natural reason itself, i.e., natural law does not command and forbid but only “indicates”; natural law thus understood would be possible even if there were no God (cf. Suárez, Tractatus de legibus ac de Deo legislatore n, 6, sec. 3; Grotius,De jure belli ac pads, Prolegomena, sec. 11; Hobbes, Leviathan, chapter 15-end; Locke, Treatises of Civil Government n, sec. 6; Leibniz, Théodicée, sec. 183).
Thomas treats natural right (as distinguished from natural law) in his discussion of justice as a special virtue (Summa theologica n, 2, 57). Therein he is confronted with the task of reconciling with the Aristotelian teaching the Roman law distinction between ius naturale and ius gentium, according to which natural right deals only with things common to all animals (like procreation and the raising of offspring), whereas the ius gentium is particularly human. The Roman law distinction might seem to reflect early conventionalist teaching (cf. Democritus, fr. 278). Thomas’ reconciliation apparently paved the way for the conception of “the state of nature” as a status antedating human society. (Cf. Suárez, Tractatus II, 18, sec. 4.)
The Thomistic natural law teaching, which is the classic form of natural law teaching, was already contested in the Middle Ages on various grounds. According to Duns Scotus, only the commandment to love God—or, rather, the prohibition against hating God—belongs to natural law in the strictest sense. According to Marsilius of Padua, natural right as Aristotle meant it is that part of positive right which is recognized and observed everywhere (divine worship, honoring of parents, raising of offspring, etc.); it can only metaphorically be called natural right [SeeMarsilius of Padua]. The dictates of right reason regarding the things to be done (i.e., natural law in the Thomistic sense), on the other hand, are not as such universally valid because they are not universally known and observed.
Natural law acquired its greatest visible power in modern times: in both the American and the French revolutions, solemn state papers appealed to natural law. The change in effectiveness was connected with a substantive change; modern natural law differs essentially from premodern natural law. Premodern natural law continued to be powerful; but it was adapted to modern natural law, with varying degrees of awareness of what was involved in that adaptation. The most striking characteristics of modern natural law are these: (1) Natural law is treated independently, i.e., no longer in the context of theology or of positive law. Special chairs for natural law were established in some Protestant countries; treatises on natural law took on the form of codes of natural law. The independent treatment of natural law was made possible by the belief that natural law can be treated “geometrically,” i.e., that the conclusions possess the same certainty as the principles. (2) Natural law became more and more natural public law; Hobbes’s doctrine of sovereignty, Locke’s doctrine of “no taxation without representation,” and Rousseau’s doctrine of the general will are not simply political but legal doctrines. They belong to natural public law; they do not declare what the best political order is, which by its nature is not realizable except under very favorable conditions, but they state the conditions of legitimacy which obtain regardless of place and time. (3) Natural law by itself is supposed to be at home in the state of nature, i.e., a state antedating civil society. (4) In the modern development “natural law” is replaced by “the rights of man”; the emphasis shifts from man’s duties to his rights. (5) Whereas premodern natural law was on the whole “conservative,” modern natural law is essentially “revolutionary.” The radical difference between modern and premodern natural law appears most clearly if one studies the stillremembered great modern natural law teachers rather than the university professors who as a rule rest satisfied with compromises.
The principles informing modern natural law were established by two thinkers who were not themselves natural law teachers, Machiavelli and Descartes. According to Machiavelli, the traditional political doctrines take their bearings by how men should live and thus culminate in the description of imaginary commonwealths (“Utopias”), which are useless in practice; one ought to start from how men do live. Descartes begins his revolution with the universal doubt, which leads to the discovery of the Ego and its “ideas” as the absolute basis of knowledge and to a mathematical-mechanical account of the universe as a mere object of man’s knowledge and exploitation.
Modern natural law as originated by Hobbes did not start, as traditional natural law did, from the hierarchic order of man’s natural ends, but rather from the lowest of those ends (self-preservation) that could be thought to be more effective than the higher ends [SeeHobbes]. (A civil society ultimately based on nothing but the right of selfpreservation would not be Utopian.) Man is still asserted to be the rational animal, but his natural sociality is denied. Man is not by nature ordered toward society, but he orders himself toward it prompted by mere calculation. This view in itself is very old, but now it is animated by the concern for a natural-right basis of civil society. The desire for self-preservation has the character of a passion rather than of a natural inclination; the fact that it is the most powerful passion makes it the sufficient basis of all rights and duties. Natural law, which dictates men’s duties, is derived from the natural right of self-preservation. The right is absolute, while all duties are conditional. Since men are equal with regard to the desire for self-preservation as well as with regard to the power of killing others, all men are by nature equal. There is no natural hierarchy of men, so that the sovereign to whom all must submit for the sake of peace and ultimately of the self-preservation of each is understood as a “person,” i.e., as the representative or agent, of each; the primacy of the individual—of any individual—and of his natural right remain intact (cf. Leviathan, chapter 21).
The doctrine of Locke may be described as the peak of modern natural law [SeeLocke]. At first glance it appears to be a compromise between the traditional and the Hobbesian doctrines. Agreeing with Hobbes, Locke denies that the natural law is imprinted in the minds of men, that it can be known from the consent of mankind, and that it can be known from men’s natural inclination. His deduction of natural law is generally admitted to be confusing—not to say confused—which does not prove, however, that Locke himself was confused. It seems to be safest to understand his doctrine as a profound modification of the Hobbesian doctrine.
It is certain that, unlike Hobbes, Locke sees the crucially important consequence of the natural right of self-preservation in the natural right of property, i.e., of acquiring property, a natural right that within civil society becomes the natural right of unlimited acquisition. Property is rightfully acquired primarily by labor; in civil society, however, labor ceases to be the title to property while remaining the source of all value. Locke’s natural law doctrine is the original form of capitalist theory.
Rousseau too starts from the Hobbesian premise[SeeRousseau]. Hobbes asserted that the natural right to judge the means of self-preservation is the necessary consequence of the right of self-preservation itself and belongs, as does the fundamental right, equally to all men, wise or foolish. But Rousseau demands that the natural right to judge the means of self-preservation be preserved as an institution within civil society. Every person subject to the laws must as a natural right have a say in the making of the laws by being a member of the sovereign, i.e., of the legislative assembly. The corrective to folly is to be found above all in the character of the laws in general, both in origin and in content: all subject to the laws determine what all must or may not do. The justice or rationality of the laws is thereby guaranteed in the only way compatible with the freedom and equality of all. In the society established in accordance with natural right, there is no longer a need or a possibility of appealing from positive law to natural right, because the members or rulers of that society are not supposed to be just men.
Rousseau further differed from Hobbes by realizing that if man is by nature asocial, he is by nature arational; questioning the traditional view that man is the rational animal, he found the peculiarity of man in his perfectibility or, more generally stated, his malleability. This led to the conclusions that the human race is what we wish to make it and that human nature cannot supply us with guidance as to how man and human society ought to be.
Kant drew the decisive conclusion from Rousseau’s epoch-making innovations: the Ought cannot be derived from the Is, from human nature; the moral law is neither a natural law nor a derivative of natural law [SeeKant]. The criterion of the moral law is its form alone, the form of rationality, i.e., the form of universality.
At about the same time that Kant, sympathizing with the French Revolution, radicalized the most radical form of modern natural right and thus transformed natural right and natural law into a law and a right which are rational but no longer natural, Burke, opposing the French Revolution and its theoretical basis, which is a certain version of modern natural right, returned to premodern natural law [SeeBurke]. In doing so, he made thematic the conservatism which was implicit to some extent in premodern natural law. Therewith he profoundly modified the premodern teaching and prepared decisively the transition from the natural “rights of man” to the prescriptive “rights of Englishmen,” from natural law to “the historical school.”
Carlyle, Robert W.; and Carlyle, A. J. (1903-1936) 1950 A History of Mediaeval Political Theory in the West. 6 vols. New York: Barnes & Noble; London: Blackwood.
Cogley, John (editor) 1963 Natural Law and Modern Society. New York: World.
Gierke, Otto von (1880)1939 The Development of Political Theory. Translated by Bernard Freyd. New York: Norton. → First published as Johannes Althusius und die Entwicklung der naturrechtlichen Staatstheorien.
Gierke, Otto von (1881) 1958 Political Theories of the Middle Age. Cambridge Univ. Press. → First published as “Die publicistischen Lehren des Mittelalters,” a section of Volume 3 of Gierke’s Das deutsche Genossenschaftsrecht. Translated with a famous introduction by Frederic William Maitland.
Gierke, Otto von (1913) 1934 Natural Law and the Theory of Society: 1500 to 1800. Translated with an Introduction by Ernest Barker. 2 vols. Cambridge Univ. Press. → A translation of five subsections of Volume 4 of Das deutsche Genossenschaftsrecht, first published in 1913. A paperback edition was published in 1957 by Beacon.
Jaffa, Harry V. 1952 Thomism and Aristotelianism. Univ. of Chicago Press.
Kelsen, Hans (1928) 1961 Natural Law Doctrine and Legal Positivism. Pages 389-446, appendix, in Hans Kelsen, A General Theory of Law and State. New York: Russell. → First published in German.
Mcilwain, Charles H. (1932) 1959 The Growth of Political Thought in the West, From the Greeks to the End of the Middle Ages. New York: Macmillan.
Nussbaum, Arthur (1947) 1954 A Concise History of the Law of Nations. Rev. ed. New York: Macmillan.
Rommen, Heinrich A. (1936) 1947 The Natural Law: A Study in Legal and Social History and Philosophy.St. Louis, Mo., and London: Herder. → First published in German.
Strauss, Leo 1953 Natural Right and History. Univ. of Chicago Press.
"Natural Law." International Encyclopedia of the Social Sciences. . Encyclopedia.com. (March 17, 2018). http://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/natural-law
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The unwritten body of universal moral principles that underlie the ethical and legal norms by which human conduct is sometimes evaluated and governed. Natural law is often contrasted with positive law, which consists of the written rules and regulations enacted by government. The term natural law is derived from the Roman term jus naturale. Adherents to natural law philosophy are known as naturalists.
Naturalists believe that natural law principles are an inherent part of nature and exist regardless of whether government recognizes or enforces them. Naturalists further believe that governments must incorporate natural law principles into their legal systems before justice can be achieved. There are three schools of natural law theory: divine natural law, secular natural law, and historical natural law.
Divine natural law represents the system of principles believed to have been revealed or inspired by God or some other supreme and supernatural being. These divine principles are typically reflected by authoritative religious writings such as Scripture. Secular natural law represents the system of principles derived from the physical, biological, and behavioral laws of nature as perceived by the human intellect and elaborated through reason. Historical natural law represents the system of principles that has evolved over time through the slow accretion of custom, tradition, and experience. Each school of natural law influenced the Founding Fathers during the nascent years of U.S. law in the eighteenth century and continue to influence the decision-making process of state and federal courts today.
Divine Natural Law
Proponents of divine natural law contend that law must be made to conform to the commands they believe were laid down or inspired by God, or some other deity, who governs according to principles of compassion, truth, and justice. These naturalists assert that the legitimacy of any enacted human law must be measured by its consonance with divine principles of right and wrong. Such principles can be found in various Scriptures, church doctrine, papal decrees, and the decisions of ecclesiastical courts and councils. Human laws that are inconsistent with divine principles of morality, naturalists maintain, are invalid and should neither be enforced nor obeyed. St. Thomas Aquinas, a theologian and philosopher from the thirteenth century, was a leading exponent of divine natural law.
According to Judeo-Christian belief and the Old Testament, the Ten Commandments, were delivered to Moses by God on Mount Sinai. These ten laws represent one example of divine natural law. The Bible and Torah are thought by many to be other sources of divine natural law because their authors are said to have been inspired by a divine spirit. Some Christians point to the canon law of the Catholic Church, which was applied by the ecclesiastical courts of Europe during the Middle Ages, as another source of divine natural law.
Before the Protestant Reformation of the sixteenth century, Europe was divided into two competing jurisdictions—secular and religious. The emperors, kings, and queens of Europe governed the secular jurisdiction, and the pope presided over the religious jurisdiction. The idea that monarchs ruled by "divine right" allowed the secular jurisdiction to acquire some of the authority of religious jurisdiction. Moreover, the notion that a "higher law" transcends the rules enacted by human institutions and that government is bound by this law, also known as the rule of law, fermented during the struggle between the secular and religious powers in Europe before the American Revolution. For example, henry de bracton, an English judge and scholar from the thirteenth century, wrote that a court's allegiance to the law and to God is above its allegiance to any ruler or lawmaker.
The influence of divine natural law pervaded the colonial period of U.S. law. In 1690 English philosopher john locke wrote that all people are born with the inherent rights to life, liberty, and estate. These rights are not unlimited, Locke said, and may only be appropriated according to the fair share earned by the labor of each person. Gluttony and waste of individual liberty are not permitted, Locke argued, because "[n]othing is made by God for man to spoil or destroy."
In the Declaration of Independence, thomas jefferson, borrowing from Locke, wrote that "all men are created equal … and are endowed by their creator with certain inalienable rights … [including] life, liberty and the pursuit of happiness." Jefferson identified the freedom of thought as one of the inalienable rights when he said, "Almighty God has created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint." In Powell v. Pennsylvania, 127 U.S. 678, 8 S. Ct. 1257, 32 L. Ed. 253 (1888), the Supreme Court recognized the importance of the divine influence in early U.S. law, stating that the "right to pursue happiness is placed by the Declaration of Independence among the inalienable rights of man, not by the grace of emperors or kings, or by the force of legislative or constitutional enactments, but by the Creator."
The U.S. Constitution altered the relationship between law and religion. Article VI establishes the Constitution as the supreme law of the land. The first amendment prohibits the government from establishing a religion, which means that a law may not advance one religion at the expense of another or prefer a general belief in religion to irreligion, atheism, or agnosticism. Although the Supremacy and Establishment Clauses seemingly preclude the judiciary from grounding a decision on Scripture or religious doctrine, state and federal courts have occasionally referred to various sources of divine natural law.
For example, in Edwards v. Aguillard, 482 U.S. 578, 107 S. Ct. 2573, 96 L. Ed. 2d 510 (1987), the Supreme Court said that "the Founding Fathers believed devotedly that there was a God and that the inalienable rights of man were rooted in Him." In McIlvaine v. Coxe's Lessee, 6 U.S. 280, 2 Cranch 280, 2 L. Ed. 279 (1805), the Supreme Court relied on the Bible as "ancient and venerable" proof that expatriation had long been "practiced, approved, and never restrained."
Confronted with the question as to whether the conveyance of a particular piece of land was legally enforceable, the Supreme Court stated that it would consider "those principles of abstract justice, which the Creator of all things has impressed on the mind of his creature man, and which are admitted to regulate, in a great degree, the rights of civilized nations" (Johnson v. M'Intosh, 21 U.S. 543, 8 Wheat. 543, 5 L. Ed. 681 ). In dred scott v. sandford, 60 U.S. 393, 19 How. 393, 15 L. Ed. 691 (1856), the Supreme Court held that slaves were the property of their owners and were not entitled to any constitutional protection. In a dissenting opinion, however, Justice john mclean wrote that a "slave is not mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man."
In the later twentieth century (in a judgment overturned in lawrence v. texas, 539 U.S., 123 S.Ct. 2472, 156 L.Ed.2d 508 ), the Supreme Court relied on Judeo-Christian standards as evidence that homosexual sodomy is a practice not worthy of constitutional protection because it has been condemned throughout the history of western civilization (Bowers v. Hard-wick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140  [Burger, J., concurring]). State and federal courts also have considered Judeo-Christian standards when evaluating the constitutionality of statutes prohibiting bigamy and incest. For example, Benton v. State, 265 Ga. 648, 461 S.E.2d 202 (1995), upheld the constitutionality of a Georgia statute prohibiting incest.
Despite the sprinkling of cases that have referred to Scripture, religious doctrine, and Judeo-Christian heritage, such sources of divine natural law do not ordinarily form the express basis of judicial decisions. At the same time, it cannot be said that state and federal courts have completely eliminated any reliance on natural law principles. To the contrary, many controversial legal disputes are still decided in accordance with unwritten legal principles that are derived not from religion, but from secular political philosophy.
Secular Natural Law
The school of natural law known as secular natural law replaces the divine laws of God with the physical, biological, and behavioral laws of nature as understood by human reason. This school theorizes about the uniform and fixed rules of nature, particularly human nature, to identify moral and ethical norms. Influenced by the rational empiricism of the seventeenth-and eighteenth-century Enlightenment thinkers who stressed the importance of observation and experiment in arriving at reliable and demonstrable truths, secular natural law elevates the capacity of the human intellect over the spiritual authority of religion.
Many secular natural law theorists base their philosophy upon hypotheses about human behavior in the state of nature, a primitive stage in human evolution before the creation of governmental institutions and other complex societal organizations. In the state of nature, John Locke wrote, human beings live according to three principles—liberty, equality, and self-preservation. Because no government exists in the state of nature to offer police protection or regulate the distribution of goods and benefits, each individual has a right to self-preservation that he or she may exercise on equal footing with everyone else.
This right includes the liberties to enjoy a peaceful life, accumulate wealth and property, and otherwise satisfy personal needs and desires consistent with the coterminous liberties of others. Anyone who deprives another person of his or her rights in the state of nature, Locke argued, violates the principle of equality. Ultimately, Locke wrote, the state of nature proves unsatisfying. Human liberty is neither equally fulfilled nor protected. Because individuals possess the liberty to delineate the limits of their own personal needs and desires in the state of nature, greed, narcissism, and self-interest eventually rise to the surface, causing irrational and excessive behavior and placing human safety at risk. Thus, Locke concluded, the law of nature leads people to establish a government that is empowered to protect life, liberty, and property.
Lockean jurisprudence has manifested itself in the decisions of the Supreme Court. In Powell v. Pennsylvania, 127 U.S. 678, 8 S. Ct. 1257, 32 L. Ed. 253 (1888), Justice stephen j. field wrote that he had "always supposed that the gift of life was accompanied by the right to seek and produce food, by which life can be preserved and enjoyed, in all ways not encroaching upon the equal rights of others." In another case the Supreme Court said that the "rights of life and personal liberty are the natural rights of man. To secure these rights … governments are instituted among men" (U.S. v. Cruikshank, 92 U.S. 542, 2 Otto 542, 23 L. Ed. 588 ).
In the spirit of Lockean natural law, the Fifth and Fourteenth Amendments to the Constitution prohibit the government from taking "life, liberty, or property without due process of law." The concept of "due process" has been a continuing source of natural law in constitutional jurisprudence. If Lockean natural law involves theorizing about the scope of human liberty in the state of nature, constitutional natural law involves theorizing about the scope of liberty protected by the Due Process Clauses of the Fifth and Fourteenth Amendments.
On their face the Due Process Clauses appear to offer only procedural protection, guaranteeing litigants the right to be informed of any legal action being taken against them and the opportunity to be heard during an impartial hearing where relevant claims and defenses may be asserted. In the 200 years following the writing of the Constitution, however, federal courts interpreted the Due Process Clauses to provide substantive protection against arbitrary and discriminatory governmental encroachment of fundamental liberties. Similar to the rational empiricism by which Enlightenment thinkers identified human rights in the state of nature, federal judges have identified the liberties protected by the Due Process Clauses through a reasoned elaboration of the Fifth and Fourteenth Amendments.
The federal judiciary has described the liberty interest protected by the Due Process Clauses as an interest guaranteeing a number of individual freedoms, including the right to personal autonomy, bodily integrity, self-dignity, and self-determination (Gray v. Romeo, 697 F. Supp. 580 ). The word liberty, the Supreme Court stated, means something more than freedom from physical restraint. "It means freedom to go where one may choose, and to act in such manner … as his judgment may dictate for the promotion of his happiness … [while pursuing] such callings and avocations as may be most suitable to develop his capacities, and give to them their highest enjoyment" (munn v. illinois, 94 U.S. 113, 4 Otto 113, 24 L. Ed. 77  [Field, J., dissenting]).
The full breadth of constitutional liberty, the Supreme Court has said, is best explained as a rational continuum safeguarding every facet of human freedom from arbitrary impositions and purposeless restraints (Poe v. Ullman, 367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989 ). The government may not intrude upon this liberty unless it can demonstrate a persuasive countervailing interest. However, the more that the U.S. legal system cherishes a particular freedom, the less likely a court is to enforce a law that infringes upon it.
In this regard the Supreme Court has identified certain fundamental rights that qualify for heightened judicial protection against laws threatening to restrict them. This list of fundamental rights includes most of the specific freedoms enumerated in the bill of rights, as well as the freedom of association; the right to vote and participate in the electoral process; the right to marry, procreate, and rear children; and the right to privacy. The right to privacy, which is not expressly enumerated anywhere in the Constitution, guarantees the freedom of adults to use birth control (griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 ) and the right of women to terminate their pregnancy before the fetus becomes viable (roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 ).
During the 1990s the right to privacy was enlarged to recognize the right of certain terminally ill or mentally incompetent persons to refuse medical treatment. In Cruzan v. Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990), the Supreme Court ruled that a person who is in a persistent vegetative state, marked by the absence of any significant cognitive abilities, may seek to terminate life-sustaining measures, including artificial nutrition and hydration equipment, through a parent, spouse, or other appropriate guardian who demonstrates that the incompetent person previously expressed a clear desire to discontinue medical treatment under such circumstances.
The Court of Appeals for the Ninth Circuit later cited Cruzan in support of its decision establishing the right of competent but terminally ill patients to hasten their death by refusing medical treatment when the final stages of life are wrought with pain and indignity (Compassion in Dying v. Washington, 79 F.3d 790 [9th Cir. 1996]). However, the Court of Appeals for the Second Circuit ruled that physicians possess no due process right to assist terminally ill patients in accelerating their death by prescribing a lethal dose of narcotics (Quill v. Vacco, 80 F.3d 716 [2d Cir. 1996]). Similarly, in a notorious case involving Dr. jack kevorkian, the Michigan Supreme Court ruled that patients have no due process right to physician-assisted suicide (People v. Kevorkian, 447 Mich. 436, 527 N. W. 2d 714 ).
In the Cruzan decision, the manner in which the Supreme Court recognized a qualified right to die reflects the Enlightenment tradition of secular natural law. Where Locke inferred the inalienable rights of life, liberty, and property from observing human behavior, the Supreme Court said in Cruzan that "a Constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions."
For example, in Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643 (1905), the Supreme Court protected the constitutional right of a person to decline a smallpox vaccination that was required by state law. In Washington v. Harper, 494 U.S. 210, 110 S. Ct. 1028, 108 L. Ed. 2d 178 (1990), the Court ruled that the liberty interest guaranteed by the Due Process Clauses prohibits the government from compelling prisoners to take antipsychotic drugs. These cases, as well as others, the Supreme Court reasoned in Cruzan, establish that all U.S. citizens have a general right to refuse unwanted medical treatment, which includes the specific right of certain mentally incompetent and terminally ill persons to hasten their death.
Historical Natural Law
Another school of natural law is known as historical natural law. According to this school, law must be made to conform with the well-established, but unwritten, customs, traditions, and experiences that have evolved over the course of history. Historical natural law has played an integral role in the development of the Anglo-American system of justice. When King James I attempted to assert the absolute power of the British monarchy during the seventeenth century, for example, English jurist sir edward coke argued that the sovereignty of the crown was limited by the ancient liberties of the English people, immemorial custom, and the rights prescribed by magna charta in 1215.
Magna Charta also laid the cornerstone for many U.S. constitutional liberties. The Supreme Court has traced the origins of grand juries, petit juries, and the writ of habeas corpus to Magna Charta. The eighth amendment proportionality analysis, which requires that criminal sanctions bear some reasonable relationship to the seriousness of the offense, was foreshadowed by the Magna Charta prohibition of excessive fines (Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 ). The concept of due process was inherited from the requirement in Magna Charta that all legal proceedings comport with the "law of the land" (in re winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 ). due process of law, the Supreme Court has observed, contains both procedural and historical aspects that tend to converge in criminal cases (rochin v. california, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 ). Procedurally, due process guarantees criminal defendants a fair trial. Historically, due process guarantees that no defendant may be convicted of a crime unless the government can prove his or her guilt beyond a reasonable doubt. Although the reasonable doubt standard can be found nowhere in the express language of the Constitution, the Supreme Court has said that the demand for a higher degree of persuasion in criminal cases has been repeatedly expressed since "ancient times" through the common-law tradition and is now "embodied in the Constitution" (In re Winship).
The legacy of the trial of john peter zenger, 17 Howell's State Trials 675, further illustrates the symbiotic relationship between history and the law. In 1735, Zenger, the publisher of the New York Weekly Journal, was charged with libeling the governor of New York. At trial Zenger admitted that he had published the allegedly harmful article but argued that the article was not libelous because it contained no inaccurate statements. However, in the American colonies, truth was not considered a defense to libel actions. Nonetheless, despite Zenger's admission of harmful publication and lack of a cognizable legal defense, the jury acquitted him.
The Zenger acquittal spawned two ideas that have become entrenched in U.S. jurisprudence.
First, the acquittal gave birth to the idea that truth is indeed a defense to accusations of libel. This defense received constitutional protection under the First Amendment in new york times v. sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). Looking back, the Supreme Court came to describe the Zenger trial as "the earliest and most famous American experience with freedom of the press" (McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S. Ct. 1511, 131 L. Ed. 2d 426, ).
The Zenger trial is also the progenitor of jury nullification, which is the power of a jury, as the conscience of the community, to acquit defendants against whom there is over-whelming evidence of guilt in order to challenge a specific law, prevent oppression, or otherwise achieve justice. For example, the Zenger jurors issued an acquittal despite what amounted to a confession by the defendant in open court. Some observers have compared the Zenger trial to the trial of o. j. simpson, in which the former football star was acquitted of a double homicide notwithstanding dna evidence linking him to the crimes. According to these observers, johnnie cochran, defense attorney for Simpson, implored the jurors to ignore the evidence against his client and render a verdict that would send a message denouncing police corruption, perjury, and racism.
All three schools of natural law have influenced the development of U.S. law from colonial to modern times. In many ways the creation and ratification of the Constitution replaced Scripture and religion as the ultimate source of law in the United States. The federal Constitution makes the people the fundamental foundation of authority in the U.S. system of government. Many of the Framers characterized the Constitution as containing "sacred and inviolate" truths. In the same vein, thomas paine described the Constitution as a "political Bible."
In 1728 many Americans understood that the common law encompassed the Law of Nature, the Law of Reason, and the Revealed Law of God, which are equally binding at all times, in all places, and to all persons. The law of history could have been added to this list. Between 1776 and 1784, 11 of the original 13 states made some allowance for the adoption of the English common law. One federal court said that the Constitution "did not create any new rights to life, liberty or due process. These rights had existed for Englishmen since Magna Charta. The Declaration of Independence … merely declared and established these rights for the American colonies" (Screven County v. Brier Creek Hunting & Fishing Club, 202 F. 2d 369 [5th Cir. 1953]). Thus, natural law in the United States may be best understood as the integration of history, secular reason, and divine inspiration.
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"Natural Law." West's Encyclopedia of American Law. . Encyclopedia.com. (March 17, 2018). http://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/natural-law
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Natural law theories have a venerable place in the history of philosophy, stretching back to the time of Plato (428–348 or 347 b.c.e.) and Aristotle (384–322 b.c.e.) when the relationship between law and nature first became a central dynamic of discussion in ethics. Since then such theories have provided staple ingredients within each major phase in Western philosophy down to the time of Immanuel Kant (1724–1804) and beyond into the contemporary era. While such accounts have often been short on detailed and practical guidance on right action, the outlook of natural jurisprudence has been highly influential in ensuring a continuous focus on the alleged rationality of the natural world and the constant and uniform accessibility to the human mind of such principles of observed regularity. However, there has always been a tension between the claim that these principles are eternal and unchanging, and the particular forms and uses assigned to natural law: in Ancient Greece the focus was more on the apparently unchanging character of nature and the distressing mutability of actual law; in the medieval age St. Thomas Aquinas (c. 1224–1274) above all emphasized the accessibility of regular patterns in nature to human nature; and in the early modern era natural law theories evolved as responses first to skepticism about the sources of knowledge, and secondly in reaction to the political turbulence that followed the Reformation, which seemed to shatter the easy symmetry between the uniformity of church and state both across Europe as a whole and also within its constituent political units. In each case the position of natural law was ambiguous, both very much of its time, and yet claiming its authenticity and authority from its position outside history.
Natural jurisprudential approaches to ethics have proved difficult to integrate into the historiography of philosophy because of just this same ambiguous relationship to history itself. On the one hand, natural law was viewed as a set of eternal verities presented by God to humanity in finished and perfect shape, and found embodied in the moral and civil order as evidence of its divine fashioning, albeit in a form diminished by the Fall of Man. But on the other hand, natural jurisprudence is a product of the interaction not just of different and succeeding schools of moral philosophy, but also of the interaction of the range of plausible accounts of divine instigation and human response within wider politics and society. So, for example, the neo-Thomist and Lutheran-Aristotelian systems of natural law that evolved in the sixteenth and seventeenth centuries in Spain and Germany were both a reaction to the new ideological circumstances of the Reformation and Counter-Reformation eras as much as they were internal modifications and realignments within academic institutions of the legacy, above all, of Aquinas and Aristotle. The same epistemological ambiguity runs through the natural law systems of the early Enlightenment era and the interpretation that they laid upon the works of Hugo Grotius (1583–1645) and Thomas Hobbes (1588–1679), which were their foundation and self-conscious inspiration. The writings of Samuel Pufendorf (1632–1694), Gottfried Wilhelm von Leibniz (1646–1716), Christian Wolff (1679–1754), and Christian Thomasius (1655–1728) sought both to anchor themselves in a newly revealed metaphysics that stood outside time, and also to comment powerfully upon and if necessary direct the course of the world of contemporary practical politics.
Natural Law in the Ancient and Medieval World
At the heart of natural law is an attempt to extract general principles out of the confusing multiplicity of legal and social convention; in the Greek world, this was represented by the contrast and tension between those areas of human life governed by contingency and those controlled by the ineluctable force of nature. Given the variability of positive law both across cultures and within them, the question arose of how legal certainty could be identified and located; and immediately battle-lines were drawn between those who held that such a moral law could be found—usually as a divine creation—and those who remained skeptical of such normative claims, and either denied that there was any essential morality, or located it elsewhere. This pattern, which originated with the Sophists, was to be repeated throughout the history of natural law arguments.
Part of the explanation of why Aristotle's writings are regarded as the first important contribution to this discourse is that they adeptly try to reconcile the distinction between nature and convention. He achieves this by elevating human reason as humankind's dominant and defining characteristic, whose proper exercise mediates between what is permanent and what is ephemeral. This is taken up with greater vigor by the Stoics, and by Marcus Tullius Cicero (106–43 b.c.e.) in particular. He regarded human reason as the apex of a rational world order: human nature rather than an innate law outside human beings now provided the ground and basis for distinguishing between positive law and natural law. Moreover, all humans possessed the rational means, when properly exercised, to identify this law unaided by God, whose divine spark reason essentially is. The Stoics also initiated what was to become one of the most influential strands of natural law thinking—namely, the view that one of the core principles of natural law is a sense of broad sociability towards one's fellow humans, tempered though not obliterated by one's own personal priorities.
The rationalism of natural law still runs as a clear thread through the massive Summa Theologiae of Aquinas, despite its elaborate metaphysical architecture. Human nature and the rational conclusions that can be generated from it continue to be his point of departure. However, Aquinas is concerned to reinstate divine eternal law within his framework, and that does lead to some tension within his overall concept of natural law as a bridge between positive and divine law. He tries to overcome this by recourse to a categorical division of natural law into primary and secondary principles, thus making natural law both fixed and mutable simultaneously. This sophisticated synthesis of pre-existing views within a Christian framework proved highly influential, and was continually refined, most notably by the later Spanish Jesuit Francisco Suarez (1548–1617); but ultimately the pressures generated by the Reformation and Thirty Years' War on the one hand and Renaissance skepticism on the other required a reconfiguring of the relationship between divine and natural law, a renewed emphasis on the Stoic formulas, and a fresh initiative to link the core principles of natural law to the emergent law of nations.
Early Modern Germany
In the era that followed the conclusion of the Thirty Years' War in 1648, it was generally held that the combined effects of Renaissance skepticism and the fragmenting effect of endemic confessional strife had destroyed the coherence of preexisting accounts of political sovereignty. The rights and duties of monarchy, most especially in respect to churches and the enforcement of doctrinal and liturgical uniformity, were left open to question and redefinition as Europe sought to come to terms with the permanence of confessional division and the necessity of its diplomatic recognition. How could sovereignty remain unified and cohesive when religious truth had become fissiparous? How could absolutism be redefined in a way that preserved unity of political decision-making while paying due pragmatic recognition to the complexities of the new European order?
Nowhere were these tensions more visible than in the Holy Roman Empire, the epicenter of the recent military conflict, and the most graphic illustration in its uneasy religious tessellation of the need to find a new legitimization for political sovereignty. It is therefore no accident that it was from this region that there emerged the most systematic attempts to re-unify politics with metaphysics and devise new explanations of the appropriate exercise of political and ecclesiological power by the ruler. The pathbreakers in this respect were Grotius and Hobbes, far more than René Descartes (1596–1650), whose relative silence on morals gave no clear assistance in this area. Grotius was admired and praised above all for showing first in a series of specific works on the legal implications and meaning of colonial acquisition, and second in his larger work of synthesis, On the Law of War and Peace (1625), that there were still general principles of natural law that could be discerned right across the spectrum of international customary law. These were accessible to all, and, crucially, would obtain even if God and God's revealed intentions for humankind were taken out of consideration. From Hobbes European readers drew the key arguments of what is generally known now as voluntarism: that laws of general validity arose from the imposition of a unified, sovereign, rational will rather than the progressive discovery of general principles benignly imprinted on humanity's consciousness in the form of innate ideas. It was in the combination of Grotius's arguments in favor of the possibility and content of universal natural law, and Hobbes's insight into how those laws may be isolated and implemented in contemporary, fragmented practical politics that produced a truly modern theory of natural law, associated with Pufendorf and Thomasius. It evoked in turn a powerful hostile reaction in the work of Leibniz and Wolff, which tried to rework the views of Aquinas in a different idiom.
The contest (for that is what it effectively became) between the voluntarism of Pufendorf and the essentialism of Leibniz was mainly played out within a framework of university disputation, but also spilled over importantly into the public arena in debates over such issues as confessional reunion. At stake here in essence was the way in which the principles of moral knowledge were obtained, an apparently recondite area of learning, but nevertheless one with crucial implications for method in all areas of modern philosophy. In his major work On the Law of Nature and Nations (1672), Pufendorf argued that humans gain knowledge of morals in a way that parallels the manner in which they devise languages, that is, through the imposition of categories and meanings to create shared, mutually accessible structures. God may give humans revealed truths, but this forms but one part of human duties; the majority of these duties are devised through unaided reason, which God gave to humans to use in this free fashion. From this initial insight, explicitly grounded in Stoic thought, emerges a complex analytical structure that frames an elaborately contractarian politics weighted heavily through the prudential calculations of individuals in an absolutist direction. It also resulted in a clearly articulated Erastian church politics, vesting the civil power with final control and powers of resolution in religious disputes.
In contrast to this, Leibniz and Wolff regarded the work of Pufendorf and his followers as an attempt to provide practical resolutions of disputes from poorly argued philosophical premises that either guilefully or ineptly justified secular voluntarism. In its place, Leibnizian posited an elaborately conceived metaphysical approach that sought to explain natural law in terms of divine justice and the "charity of the wise," arguing in essence that all practical morality can be derived from the reservoir of truth located in the perfect wisdom of God. Less daring in the practical politics with which it eventuated, Leibnizian natural law nevertheless performed virtuosic surgery on the corpse of Protestant-Aristotelian natural law, ensuring that Wolff's textbooks enjoyed equal credibility and popularity in both Protestant and Catholic universities until the later eighteenth century. Leibniz also pointed out disquietingly secular overtones in the work of the followers of Pufendorf that inhibited their unequivocal acceptance of their work even within Protestant Germany.
Early Modern France
While the grandest systems of natural law emerged in Germany, there was also a sustained focus on ethical discourse of this type among the French Huguenots, exiled by Louis XIV (1638–1715) after the Revocation of the Edict of Nantes in 1685, and forced therefore to construct a new political identity for themselves within a cosmopolitan intellectual framework, rather than that of a state. Their most eloquent writers, such as Jean Barbeyrac (1674–1744) and Jean-Jacques Burlamaqui (1694–1748), sought to defend a right to religious conscience while retaining a political order that was primarily absolutist in character. The particular circumstances of their ideological preferences therefore led them to develop a proto-liberal language of rights in association with religious toleration that was genuinely original and powerfully influential, not least on John Locke (1632–1704). But the Huguenots also had to confront more directly than any other group of writers the potentially illiberal and austerely utilitarian (using that term loosely) aspects of Pufendorfian absolutism, whose voluntarist assumptions sometimes appeared to produce results rather similar to the divine-right absolutism pursued for wholly different reasons by Louis XIV. This was a paradox not lost on Jean-Jacques Rousseau (1712–1778), who, with intimate knowledge of the local Swiss context of these writers, later castigated the Huguenots, and the natural law school as a whole, as a very clear case study in subservience to absolutism and a failure to follow through an analysis of the rights of conscience with sufficient rigor.
In four particular respects, the natural law disputes of the period between 1625 and 1760 left an important philosophical legacy. Firstly, the issues of how far religious toleration was to be permitted, what its political consequences should be, and what were the sources of its intellectual justification were played out within and refracted through the discourse of natural law above all others. Natural law theories therefore provided the framework for the discussion of the major question of the day on the interface between political theory and practical politics. Secondly, although this was not fully intended, the crucial separation of the fields of ethics and moral theology, argued for by Grotius, Pufendorf, and their followers, ultimately resulted in the final downgrading and devaluing of the formal divine content and origin of ethics and the promotion of individuals as separate self-sufficient moral persons capable of undertaking rational voluntary transactions. Thirdly, this Pufendorfian argument produced several very important discussions of the nature of contractarian government, of the right to own property and to pursue economic interactions untrammeled by the state, that powerfully anticipated some of the most radical and influential ideas of the philosophes and of the Scottish Enlightenment. Finally, the natural lawyers' preoccupation with securing links between the law of nature and the law of nations established the view that reason of state arguments were not sufficient in the world of public affairs, thus—ironically—reinstating a link between "eternal" principles of human ethics and the law of nations, just when the link between divine and natural law had been irretrievably severed.
Natural Law and Natural Rights
The disappearance of natural law arguments from mainstream philosophy was not nearly so abrupt in the nineteenth century as is often made out, as can be seen from the curricula and textbooks adopted at many universities. Nevertheless, the combined influence of Kantian idealism and utilitarianism did serve ultimately to undercut several of the key claims of the theorists of the preceding two centuries. In his Foundations of the Metaphysics of Morals (1785), Kant essentially generated a fresh account of moral obligation that was located not in the principles of human nature, but in an autonomous will freely exercising practical reason: Obligation lay not in the harmony of a principle with human nature, but in whether a law could be objectively generalized in relevantly comparable circumstances. Thus it appeared that natural law arguments only yielded empirical "counsels of prudence" about human behavior, not conceptually coherent moral yardsticks. A second blow was struck by Jeremy Bentham (1748–1832), who stressed that there was no "external consideration" that permitted natural jurisprudence to distinguish between one person's judgment of the law of nature and another's: natural law had to act as its own circular proof and guarantor, which was unacceptable. Attempts to distill a common set of principles from the infinite variety of the law of nations were bound to fail; he believed it to be far better to move outside the categories of reason and human nature altogether, accept the pluralist nature of human definitions of the good life, and reassert the supremacy of legal positivism, based on accommodating majority preferences. This point was particularly difficult for natural lawyers to answer, given that they had failed to observe how easily their view that knowledge of the law of nature was not reliant on God could slide into a statement that grounds for obeying natural law are not dependent on God either—a conclusion that left no clear criterion of obligation to fall back upon.
However, the eclipse of natural law arguments was by no means complete even at the beginning of the twenty-first century. While natural rights theories have pursued their own separate trajectory towards an assertion of the protection of individual rights as a good in itself, perhaps best embodied in the American philosopher Robert Nozick's Anarchy, State and Utopia, a number of Catholic theorists, most notably the Australian author John Finnis in Natural Law and Natural Rights, have reworked the idea of shared goods inherent in human nature, though the content of that list of shared goods and the relationship between them has proved to be controversial. As with the earlier versions of natural law theory that have taken their stand on human nature and its attributes, this version too stands or falls on the richness or poverty of its conception of that human nature, and on the clarity and self-awareness with which human nature is neutrally described or prescribed in relation to other norms at each step in the argument. All such theories explore very difficult philosophical territory because they seek to unify two essentially different projects: to provide specific prudential advice on how best to achieve one's objectives (implying a recognition that human nature and its needs change in line with historical circumstances in ways that reason alone does not always fully comprehend), together with a parallel recognition that for human insights to be generalized as valid law, they need to be assessed according to a sole and unvarying standard, usually identified as rational truth. Those thinkers who have best overcome these paradoxes, such as the Stoics, Grotius, and Pufendorf, lived in periods of significant social dislocation, but were stimulated to identify and narrow general principles attributable to reason that were also imaginatively rich enough to meet the shifting empirical shoals of their own political and existential crises. That is why they are still worth studying in the twenty-first century, for this juxtaposition of moral philosophy with moral exigencies is a task that is never completed, despite the shift in intellectual frameworks that makes the natural law era seem so distant and different from that of the present.
See also Christianity ; Human Rights ; Scholasticism ; Toleration .
Aristotle. Nicomachean Ethics. Edited by Roger Crisp. Cambridge, U.K.: Cambridge University Press, 2000.
Cicero, Marcus Tullius. De Legibus and De Republica. Edited by Niall Rudd and J. G. F. Powell as The Republic and the Laws. Oxford: Oxford University Press, 1998.
Finnis, John. Natural Law and Natural Rights. Oxford: Oxford University Press, 1980.
Grotius, Hugo. De Jure Belli ac Pacis. 3 vols. 1625. Edited by Francis W. Kelsey and published as The Law of War and Peace: De Jure Belli ac Pacis. Indianapolis: Bobbs-Merrill, 1962.
Nozick, Robert. Anarchy, State and Utopia. Oxford: Blackwell, 1974.
Pufendorf, Samuel. De Jure Naturae et Gentium. 1672. Translated by Basil Kennett as Of the Law of Nature and Nations: Eight Books. Clark, N.J.: Lawbook Exchange, 2003.
Thomas, Aquinas St. Summa Theologiae. 1265–1273. Reprint, n.p.: Blackfriars; New York: McGraw-Hill, 1964–1976.
Buckle, Stephen. Natural Law and the Theory of Property: Grotius to Hume. Oxford: Oxford University Press, 1991.
George, Robert P. In Defense of Natural Law. New York: Clarendon, 1999.
Haakonssen, Knud. Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment. Cambridge, U.K.: Cambridge University Press, 1996.
Hunter, Ian, and David Saunders, eds. Natural Law and Civil Sovereignty: Moral Right and State Authority in Early Modern Political Thought. New York: Palgrave; Cambridge, U.K.: Cambridge University Press, 2002.
Tierney, Brian. The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150–1625. Atlanta: Scholars Press, 1997.
Tuck, Richard. Natural Rights Theories. Cambridge, U.K.: University Press, 1979.
T. J. Hochstrasser
"Natural Law." New Dictionary of the History of Ideas. . Encyclopedia.com. (March 17, 2018). http://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/natural-law
"Natural Law." New Dictionary of the History of Ideas. . Retrieved March 17, 2018 from Encyclopedia.com: http://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/natural-law
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NATURAL LAW. Natural law is a contribution to the perennial discussion of the nature of justice and morality; it is an attempt to root them in something beyond human convention and creation. The notion has had various meanings and contents—no less than the word nature itself—most of which can be traced back to Saint Thomas Aquinas (1225–1274), Roman Stoicism, and ultimately, Aristotle (384–322 b.c.e.). Constant to all its meanings is that natural law is coherent, suprahuman, objective moral order that contains the standards of what is good and just; and that it contains the standards by which human or positive law is to be judged from the perspective of a harmonious and coherent universe and is inherent in the "nature" of the world. It was born of attempts by ancient philosophers and jurists to discover—or determine—what was common to all legal systems in order to eliminate what would today be seen as the problems of "relativism" and cultural and legal "diversity." The presumption that there is a common core to all systems of morality and law that provides the standards by which they are to be evaluated leads to the issues of discovery, validation, and enforcement.
UNIVERSALITY AND PERMANENCE
Natural law, like justice, aims at universality and permanence. Operationally, like all law, it is duty-contradict, a series of moral prohibitions, permissions, and requirements. It proclaimed the union of morality and politics and emerged from an ancient worldview that saw a singular harmony in nature, manifested in the universal jus (or ius ) gentium (international law). That universality was subsequently incorporated by Christianity into its conception of the divine ordering of all creation. Aquinas separated this classical understanding into the eternal, the divine, the natural, and the human (or positive) laws. The natural was still common to all humanity and was part of God's will and was the direct source for human law. In keeping with its Stoic roots, the natural law as conceived by Aquinas was discoverable through the use of natural reason, with the difference that for Aquinas that reason had been planted in everyone by God. Justice was an irresistible, rational necessity of naturally sociable human beings.
In this Aristotelian-Thomist form, for the most part, natural law continued into the early modern period. Even Jean Bodin (1530–1596), famed for his conception of political sovereignty as the absolute power to make and enforce law, held in his Six livres de la République (1576; Six books of the commonwealth) that the state in general was under the moral aegis of the overarching law of nature and limited sovereign absolutism to the positive law.
Protestant and secular natural-law theorists retained the understanding of humans as naturally sociable and rational and viewed the natural law as that which superintended human laws. The Vindiciae, contra Tyrannos (1579; Defense of liberty against tyrants; written by Philippe de Mornay, known as Duplessis-Mornay [1549–1623], but published anonymously) pointed to violations of the natural law as one of the signs of tyranny, and the sixteenth-century Anglican theologian Richard Hooker (1553 or 1554–1600) espoused a conception of natural law that was heavily indebted to Scholasticism in his Laws of Ecclesiastical Polity (1593, et seq.).
REASON AND NATURAL SOCIABILITY
The seventeenth century witnessed the beginnings of a series of remarkable changes in natural-law theory, starting with the Dutch thinker Hugo Grotius (1583–1645), whomadereasonandnaturalsociability, rather than divinity, central to the conception developed in his De Iure Belli ac Pacis (1625; On the law of war and peace). So strong was his reliance upon these two that he suggested that the natural law would obtain even without God. Grotius was certainly not an atheist, but that charge was hurled at Thomas Hobbes (1588–1679), the English philosopher whose understanding of natural law shared many features with that of Grotius.
Sociability, Grotius argued, drove humanity into society from its prepolitical, state-of-nature beginnings; people were capable of understanding the ruling law of nature through their natural reason. Aquinas and the early-seventeenth-century Jesuit natural-law philosopher Francisco Suárez (1548–1617) had seen rationality as a reflection of divinity that enabled humans to understand God's will. Grotius appeared to have minimized that relationship, treating reason as a semiautonomous—albeit divinely implanted—and extremely important aspect of human nature. In his hands and those of his successors, this radically secularized and rationalized natural law was potentially removed from the realm of experience in which it had previously been rooted. The inherent human capacity to reason and the use of "right reason" independent of actual experience could lead to universal moral, social, and political principles by which human life was to be governed.
Perhaps the most important and influential proponent of this Grotian view of natural law was Samuel von Pufendorf (1632–1694), the first holder of a chair in natural law in a German university. In his De Jure Naturae et Gentium (1672; On natural and civil law), Pufendorf went even further and separated the natural, sociable world of human affairs and the natural law that governed it from the spiritual realm of theology. In this form, the new, secular natural law was adopted by many seventeenth- and eighteenth-century philosophers, especially Richard Cumberland (1631–1718), bishop of Peterborough (whose De Legibus Naturae [On natural laws] was published the same year as Pufendorf's work) and Jean Barbeyrac (1674–1744), the translator of Grotius and Pufendorf into French and historian of moral philosophy.
Cumberland had reached his conclusions independently of Pufendorf and was acknowledged in later editions of De Jure Naturae. Paradoxically, perhaps, Cumberland had developed some of his argument in opposition to the writings of Thomas Hobbes, who had denied natural sociability and ignored, if he did not actually deny, divinity. But Hobbes was subsequently to be ranked by Barbeyrac in the company of Grotius and Pufendorf as one of the great innovators in natural law theory.
STATE OF NATURE
Hobbes's theory, most notably in Leviathan (1651) and earlier in his De Cive (1642; On citizenship), began with an utterly undeveloped, fiercely competitive, and dangerously uncertain state of nature in which the natural law gave everyone the right to all things within their reach. People escaped this state of nature by voluntarily establishing a conventional absolutism in accord with the natural law requirement of self-preservation. Where traditional natural-law doctrine had provided a natural and rational basis for rights and liberties that persisted in some form in political society and had imposed varying limits on political authority, in Hobbes's hands, the inevitable destructiveness of natural freedom led only to a rationally established absolutism in which subjects had only as much freedom as their rulers permitted. It was the conceptual genius of Hobbes to subvert the appeal to natural law by many of his contemporaries—especially the Levellers—to attack the rule of Charles I as antithetical to their natural rights.
This Hobbesian reworking of natural law created great difficulties for his successors—he was frequently attacked and his books were subsequently banned in England—especially John Locke (1632–1704), who sought to establish a notion of secular natural law as leading to limited government. Locke is better known for his doctrine of natural rights than for his theory of natural law. The state of nature described in his Two Treatises of Government (1690) was sociable and far more peaceful than that of Hobbes, precisely because it was governed by the God-given natural law that people recognized and generally obeyed. The establishment of political—or "civil," as Locke often called it—society, accomplished by consent, was fully in accord with the law of nature and enabled people to achieve their natural ends by overcoming the uncertainties and insecurities of the state of nature. Locke's political state was to be limited by the natural justice contained in the natural law, and prolonged violations of that justice legitimated—in some cases, even required—a resort to revolution.
THE PROBLEM OF DIVINE WILL
There is a paradox inherent in a natural law theory that depends on divine will. Grotius and those who followed him recognized this problem. If God is the author or legislator of the law of nature, and its validity is a consequence of his will, then things are right or wrong because God has so directed, which makes him into something of an arbitrary but benevolent ruler. If, on the other hand, there are principles according to which God has decreed the natural law, as Aquinas seemed to have implied, then God is not omnipotent. Consigning all this to the realm of divine mystery severely limits its applicability to human affairs. The role of reason is crucial, but reason that is God-dependent simply pushes the problem one step further away. Aquinas, following Aristotle, argued for the relationship between divine natural law, reason, and human experience. But an independent reason of the sort advocated by Pufendorf requires some standard of validation. Locke tacitly sidestepped the issue in his Two Treatises, but at an earlier period in his life, in a series of lecturers he delivered in 1664 but refused to publish (published from the manuscripts in 1954 as Essays on the Law of Nature ), he had agonized over the source of natural law and how and whether it could be known.
This series of questions was faced by Pufendorf, who concluded that the will of God in matters of natural law could be determined by consulting what is humanity's long-term and therefore best interests, thereby opening the door to a rational natural law that could be professed without any direct reliance upon divine will and revolution, which was ultimately a major break from the Scholastic tradition. He further urged that the author of this break was Grotius. The focus of natural law for Pufendorf—and Grotius—shifted from the morally requisite duties of individuals to the preservation of society, a view that was passed on to the eighteenth century by Barbeyrac. He published French translations of Grotius and Pufendorf that were translated into English and enjoyed wide popularity in both languages. His Historical and Critical Account of the Science of Morality (English translation, 1729), which prefaced his edition of Pufendorf, accepted and furthered Pufendorf's understanding of Grotius as the author of the radical break in natural-law theory. Barbeyrac argued for a new school of natural-law theory that included Grotius, John Selden (1584–1654), Pufendorf, Hobbes, Cumberland, and Locke, and his view became the accepted history of modern moral philosophy.
These moves would make human will the determiner of natural-law precepts, leaving altogether open the issue of how to resolve conflicting accounts. Ultimately, this would be dealt with by the reintroduction of experience as that upon which reason operated. And, in keeping with the precepts of natural sociability, a standard of social utility extended over time would become the measure of justice as secular natural law gave place to utilitarianism. The Scholastic doctrine of natural law remained alive in Roman Catholic philosophy and theology.
Yet another and not unrelated direction for the development of natural law thinking was already present in Locke's conception of natural rights, for his emphasis was upon the natural entitlements as limits on the behavior of others and on the actions of government. The popularity of this doctrine represents the triumph of what has been called "individualism." This part of the natural law story ends with Thomas Jefferson's (1743–1826) invocation in the Declaration of Independence of the "law of Nature and Nature's God," a cosmetic reversion to the earlier theistic conception, from which he quickly moved to the self-evident, God-given "unalienable Rights" of "Life, Liberty, and the pursuit of Happiness" as the only legitimate ends of government. Expanded into the universal "human rights" of contemporary international politics, the modernized version of natural rights has become one of the primary alternatives to utilitarianism and social good as the test for good and just government.
See also Bodin, Jean ; English Civil War Radicalism ; Enlightenment ; Free Will ; Grotius, Hugo ; Hobbes, Thomas ; Locke, John ; Rights, Natural .
Burns, J. H., ed. The Cambridge History of Political Thought, 1450–1700. Cambridge, U.K., and New York, 1991.
Gierke, Otto Friedrich von. Natural Law and the Theory of Society, 1500 to 1800, by Otto Gierke, with a lecture on The Ideas of Natural Law and Humanity, by Ernst Troeltsch. Translated and with an introduction by Ernest Barker. Cambridge, U.K., 1958.
Haakonssen, Knud. Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment. Cambridge, U.K., and New York, 1996.
Johnson, Harold J., ed. The Medieval Tradition of Natural Law. Kalamazoo, Mich., 1987.
Krieger, Leonard. The Politics of Discretion: Pufendorf and the Acceptance of Natural Law. Chicago, 1965.
"Natural Law." Europe, 1450 to 1789: Encyclopedia of the Early Modern World. . Encyclopedia.com. (March 17, 2018). http://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/natural-law
"Natural Law." Europe, 1450 to 1789: Encyclopedia of the Early Modern World. . Retrieved March 17, 2018 from Encyclopedia.com: http://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/natural-law
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The idea of the natural world as created by God, and so being subject (like human society) to God's authority, led to the metaphorical extension of the notion of natural law to refer to regularities in nature. Here, again, the idea had its religious and its secular adherents, though from the scientific revolution of the seventeenth century, the principal division was between rationalists and empiricists. The former tended to attribute necessity to the laws of nature, some of them (such as Leibniz) supposing these to be rationally demonstrable from a priori principles. The empiricists held that knowledge of the laws of nature could be established only on the basis of observation and experiment. On this view the regularities summarized in laws of nature could not justifiably be held to have any necessity about them. Our expectation that such regularities would continue into the future, however unavoidable in practical life, was ( David Hume argued) nevertheless rationally ungrounded, and a mere habit of mind.
"natural law." A Dictionary of Sociology. . Encyclopedia.com. (March 17, 2018). http://www.encyclopedia.com/social-sciences/dictionaries-thesauruses-pictures-and-press-releases/natural-law
"natural law." A Dictionary of Sociology. . Retrieved March 17, 2018 from Encyclopedia.com: http://www.encyclopedia.com/social-sciences/dictionaries-thesauruses-pictures-and-press-releases/natural-law
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natural law, theory that some laws are basic and fundamental to human nature and are discoverable by human reason without reference to specific legislative enactments or judicial decisions. Natural law is opposed to positive law, which is human-made, conditioned by history, and subject to continuous change. The concept of natural law originated with the Greeks and received its most important formulation in Stoicism. The Stoics believed that the fundamental moral principles that underlie all the legal systems of different nations were reducible to the dictates of natural law. This idea became particularly important in Roman legal theory, which eventually came to recognize a common code regulating the conduct of all peoples and existing alongside the individual codes of specific places and times (see natural rights). Christian philosophers such as St. Thomas Aquinas perpetuated this idea, asserting that natural law was common to all peoples—Christian and non-Christian alike—while adding that revealed law gave Christians an additional guide for their actions. In modern times, the theory of natural law became the chief basis for the development by Hugo Grotius of the theory of international law. In the 17th cent., such philosophers as Spinoza and G. W. von Leibniz interpreted natural law as the basis of ethics and morality; in the 18th cent. the teachings of Jean Jacques Rousseau, especially as interpreted during the French Revolution, made natural law a basis for democratic and egalitarian principles. The influence of natural law theory declined greatly in the 19th cent. under the impact of positivism, empiricism, and materialism. In the 20th cent., such thinkers as Jacques Maritain saw in natural law a necessary intellectual opposition to totalitarian theories.
See J. Maritain, The Rights of Man and Natural Law (1943, repr. 1971); J. Fuchs, Natural Law (1965); J. Stone, Human Law and Human Justice (1965); A. Battaglia, Toward a Reformulation of Natural Law (1981).
"natural law." The Columbia Encyclopedia, 6th ed.. . Encyclopedia.com. (March 17, 2018). http://www.encyclopedia.com/reference/encyclopedias-almanacs-transcripts-and-maps/natural-law
"natural law." The Columbia Encyclopedia, 6th ed.. . Retrieved March 17, 2018 from Encyclopedia.com: http://www.encyclopedia.com/reference/encyclopedias-almanacs-transcripts-and-maps/natural-law
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"Natural law." The Concise Oxford Dictionary of World Religions. . Encyclopedia.com. (March 17, 2018). http://www.encyclopedia.com/religion/dictionaries-thesauruses-pictures-and-press-releases/natural-law
"Natural law." The Concise Oxford Dictionary of World Religions. . Retrieved March 17, 2018 from Encyclopedia.com: http://www.encyclopedia.com/religion/dictionaries-thesauruses-pictures-and-press-releases/natural-law
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nat·u·ral law • n. 1. a body of unchanging moral principles regarded as a basis for all human conduct. 2. an observable law relating to natural phenomena: the natural laws of perspective. ∎ such laws collectively.
"natural law." The Oxford Pocket Dictionary of Current English. . Encyclopedia.com. (March 17, 2018). http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/natural-law
"natural law." The Oxford Pocket Dictionary of Current English. . Retrieved March 17, 2018 from Encyclopedia.com: http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/natural-law