Natural Law Theory Approach

A Written Report

College of Law

University of Eastern Philippines

University Town, Northern Samar

In Partial Fulfillment

Of the Requirement for the Course

Human Rights Law

June 2014

ABSTRACT

In the context of our predecessors on ancient philosophy,

natural law is a universal rule based on reason alone. That is

higher than human positive law. Under natural law theory, reason

establishes a universal precept that identifies good or bad even

if there no same principles established in civil law.

The term is defined as a philosophical system of legal and

moral principles purportedly deriving from a universalized

conception of human nature or divine justice rather than from

legislative or judicial action. (Black’s Law Dictionary 9th ed.)

Introduction

"Natural law, as it is revived today, seeks to organize the

ideal element in law, to furnish a critique of old received

ideals and give a basis for formulating new ones, and to yield a

reasoned canon of values and a technique of applying it. I should

prefer to call it philosophical jurisprudence. But one can well

sympathize with those who would salvage the good will of the old

name as an asset of the science of law." (Roscoe Pound, The

Formative Era of American Law (1938).

To begin with, the cradle of natural law speaks of the divine

order of the progenitor. It is anchored on the instinct of man

and his profound virtue which is pity. Man is naturally

reasonable and his inclination to do well is the core of natural

law.

Importance of natural law

The crucial part of natural law is natural inclination,

rational inclination to obey the divine. Without natural law,

faith cannot be cultivated into a general mandate of conscience.

Definition

Natural law is a system of law that is determined by nature,

and so is universal. (Strauss Leo, 1968 “Natural Law”

International Encyclopedia of Social Sciences, Macmillan). The

classic definition of the term is that natural law refers to the

use of reason to analyze human nature both social and personal

and deduce binding rules of moral behavior from it. (Natural Law,

Columbia Electronic Encyclopedia, 6th ed. Columbia University

Press. 2007). On the other hand, in the context of legal theory,

natural law is considered as basis of interpretation of positive

law. To understand the concept, philosophers had theorized many

definitions and explanations of natural law. First one to attempt

is Plato. According to him, we live in a natural universe. He

believed that there is even higher truth than justice that only a

very few will come to know. This higher truth Plato calls the

Good, which is the cosmic principle of order that unites both

physical and ethical principles in a grand synthesis. It is that

which gives the whole universe and everything in it, a meaning

and purpose.1 However, to explain the Good is near to quite

1 Brian R. Nelson, Western Political Thought: From Socrates to the Age of Ideology, 2nd ed., (New Jersey: Prentice Hall.,)p. 34.

impossible because it cannot be grasped simply in logical terms.

For Plato, knowing the Good is to have a supernatural insight

into the rational structure of the whole universe. There is an

element of mysticism in his theory, but this in no way

contradicts his emphasis upon rational knowledge. The dialectical

acquisition of knowledge is the necessary condition of grasping

the Good.2

History

The sophists

The stoics

Greek philosophy

Contemporary times

Natural law and natural rights

What follow natural law are natural rights. Natural law may be

defined as the divine inspiration in man of the sense of justice,

fairness, and righteousness, not by divine revelation or formal

promulgation, but by internal dictates of reason alone.3 The

binding force of natural law grasp all men at all times, in every

individual, there is always a fundamental understanding of right

and wrong, based on the basic standard of the criterion that is

good and evil. In other words, there is an innate nature in every

2 Ibid, p. 35.

3 Hector S. De Leon and Hector M. De Leon, Jr., The Law on Obligations and Contracts, 2011 ed., (Philippines: Rex Printing Company Inc.,) p. 2

man known in his heart and conscience by the dictates of his

moral nature and is not a product of theorizing which is the good

or evil. Thus, we know that killing for the sake of killing is

bad or evil because it is contrary to what we believe is just,

fair or righteous. When we speak of this inward instinct of

justice, fairness, and righteousness in man as divinely inspired

by the dictates of his higher nature, we are talking about

natural law or the law of nature.4 As compared to divine law,

there is difference. Divine law is the law of religious faith

made known to man by means of direct revelation. On the other

hand, natural law is impressed in man as the core of his higher

self at the very moment of being or even before that.5

Natural rights are those rights possessed by every citizen

without being granted by the State for they are given to man by

God as a human being created to His image so that he may live a

happy life.6 The examples of this are the right to life, liberty,

and property. According to Justice William Douglas (U.S. Supreme

Court) explains natural rights in these words: “Man gets his

rights from the creator. They come to him because of the divine

spark in every human being.” Thus deep within his conscience, man

discovers a law he has not laid upon himself but inscribed by God

4 Ibid., p. 3

5 Ibid.

6 Hector S. de Leon; Textbook on the Philippine Constitution; 2008 edition (Quezon City: Rex Printing Company Inc.), p. 116

and which he must obey. Even natural law, however, imposes

limitations against the misuse or abuses in the exercise of ones

right. Every right involves a corresponding responsibility to

others and to society.7

Natural law and human rights

Natural law and human rights are closely connected to each

other as interdependent forces. A question is asked commonly,

what are human rights?

Human rights are commonly understood as being those rights

which are inherent to human being. The concept of human rights

acknowledges that every single human being is entitled to enjoy

his or her human rights without distinction as to race, color,

sex, language, religion, political or other opinion, national or

social origin, property, birth or other status. Human rights are

legally guaranteed by human rights law, protecting individuals

and groups against actions which interfere with fundamental

freedoms and human dignity.8 They are expressed in treaties,

customary international law, bodies of principles and other

sources of law. Human rights law places an obligation on States

to act in a particular way and prohibits States from engaging in

specified activities. However, the law does not establish human

rights. Human rights are inherent entitlements which come to

7 Ibid. p. 117

8 Human Rights A Basic Handbook for UN Staff (Office of the High Commissioner for Human rights, United Nations Staff College Project). P. 2

every person as a consequence of being human. Treaties and other

sources of law generally serve to protect formally the rights of

individuals and groups against actions or abandonment of actions

by Governments which interfere with the enjoyment of their human

rights.9

The following are some of the most important characteristics

of human rights:

1. human rights are founded on respect for the dignity and

worth of each person;

2. human rights are universal, meaning that they are applied

equally and without discrimination to all people;

3. human rights are inalienable, in that no one can have his

or her human rights taken away other than in specific

situations for example, the right to liberty can be�

restricted if a person is found guilty of a crime by a

court of law;

4. Human rights are indivisible, interrelated and

interdependent, for the reason that it is insufficient to

respect some human rights and not others. In practice, the

violation of one right will often affect the respect of

several other rights. All human rights should therefore be

seen as having equal importance and of being equally

9 Ibid. p. 3

essential to respect for the dignity and worth of every

person.10

Aristotle’s Theory of Natural Law

Aristotle did affirm the existence of a “law of nature,” but

he was admired by and influenced the American Founders more for

his related views on republican government and the rule of law.

Aristotle was regularly included by the Founders in their lists

of reliable and authoritative political philosophers. When asked

once what was the philosophy underlying the Declaration of

Independence, Jefferson replied that: “All its authority rests on

the harmonizing sentiments of the day, whether expressed in

conversation, in letters, printed essays, or in the elementary

books of public right, as Aristotle, Cicero, Locke and Sidney.

John Adams similarly wrote that the principles of the American

Revolution “are the principles of Aristotle and Plato, of Livy

and Cicero, and Sidney, Harrington, and Locke; the principles of

nature and eternal reason; the principles on which the whole

government over us now stands.”11

The following are acknowledged doctrines which Aristotle

devised himself:

10 Ibid.

11 Adams, Novanglus, No. 1.

1. government should govern for the good of the people, not

for the good of those in power;

2. there is a natural aristocracy, and skilled statecraft

arranges things so that this element acquires authority,

or, failing that, blends democratic and oligarchic

influences in society to approximate to that outcome;

3. mixed regimes are better than pure regimes, because they

are more stable;

4. the best form of government in nearly all circumstances

involves the balancing of aspects of all three pure regimes

(kingship, aristocracy, and timocracy);

5. A pure democracy can easily turn into a tyranny of the

majority.

For Aristotle there is a very close connection between justice

and law, so much so that he is willing to say that the general

virtue of justice may be alternatively described as

“lawfulness.”12 The opposition commonly drawn between “natural

justice” (and “natural right”) and “natural law” is therefore

unwarranted in the case of Aristotle.13 The reason is not

difficult to see: particular judgments about what is equal or

just immediately imply corresponding generalizations, since there

12 Nicomachean Ethics, V.1

13 Richard Tuck, Natural Rights Theories, Cambridge, CUP 1982.

would be no reason why similar cases should not be decided in the

same way. That this allotment should be 80/20 implies that

similar cases should have similar allotments. Thus, on

Aristotelian terms, a law is “by nature” if the equality which it

aims to ensure is such that it is justified by appeal to

something other than an agreement or decision. Similarly a law

would be “contrary to nature” if it forbade equalities which a

law which was “by nature” would aim to effect, or if it commanded

corresponding inequalities. By a “law of nature,” then,

Aristotle does not mean statutes, or a system of rules,

discernible by intellectual perception; rather, what he means are

recurring equalities or inequalities in the nature of things,

which, he considers, serve to justify general claims involving

the distribution of things and actions. Three important things

should be noted about a “law of nature” in this sense:

First, Aristotle thinks that a “law of nature” may

appropriately be invoked as grounds for disobeying a human law

which contravenes it, since the “law of nature” has the higher

authority. This is clear from his favorable reference to the

Antigone of Sophocles and his willingness to contemplate jury

nullification in the Rhetoric.14 It is unclear from the text on

what grounds Aristotle held that a law of nature has the higher

authority; but we may speculate that his view here is connected

14 http://www.nlnrac.org/classical/aristotle

with his views expressed elsewhere that the ultimate causes of

nature are divine, and that human artifice should assist or

complete nature rather than subvert it.15

Second, it may reasonably be wondered why, if something is a

“law of nature,” it is not recognized and followed universally by

human beings. In fact no prescription seems to be acknowledged by

all cultures and times, not even “Do not murder.” The puzzling

language of the Nicomachean Ethics, which defines nature as

something that has the same “force” or “influence” in all times

and places, suggests how Aristotle would deal with this

problem.16 His view seems to be that nature, for its part,

invariably suggests to us the appropriateness of framing certain

precepts (viz. concerning what is “just by nature”), but we, for

our part, need to have the appropriate sensitivity to this

influence. For example, on this view we frame a precept of the

form, “Do not murder,” and say that this is just by nature, in

view of our being sensitive to the “nearness and dearness” of

each human being to every other.17 This nearness and dearness is

an objective reality about our similarity and potential

reciprocal relationships with members of the same kind; yet we

may fail to be sensitive to this reality. We do not, of course,

15 Ibid. ,

16 Ibid.,

17 Ibid.,

merely intellectually perceive that human beings are near and

dear to one another; rather, we sense or feel these ourselves,

which is to say that we are inclined to regard another’s good as

our own good, and we are prepared to act to protect and promote

it. Yet it can happen, in some cultures or circumstances, that

our sensitivity is suppressed or deformed, and in those unusual

conditions the precept “Do not murder” will either not be

articulated by us or will fail to have force. In such cases it is

not nature that has changed, or the law of nature; nature remains

the same, but we have failed to respond adequately to it, through

a failure of sensitivity.

Third, it seems to be Aristotle’s view that a “law of nature”

or what is “just by nature” never has an effect on our actions

without some admixture of the conventional and the arbitrary. No

precept is purely natural; all precepts are framed with a view to

an application to particular circumstances, and for this

something arbitrary will be required. Aristotle’s helpful example

is of the difference between wholesale and retail measures: in

all times and places, people use larger measures in wholesale

markets than in retail; they do this in view of the nature of the

case—the wholesale market involves a higher-level distribution of

goods for sale, and therefore it calls for larger measures—and in

this sense “by nature wholesale measures are larger than retail;”

nonetheless, which measures to use at each level is purely a

matter of convention like kilograms rather than pounds, and grams

rather than ounces.

The Law of Nature is so unalterable, that God himself cannot

change it. For the Power of God be infinite, yet we may say, that

there are some Things to which this infinite Power does not

extend, because they cannot be expressed by Propositions that

contain any Sense, but manifestly imply a Contradiction. For

Instance then, as God himself cannot effect, that twice two

should not be four; so neither can he, that what is intrinsically

Evil should not be Evil. And this what Aristotle meant. Some

Things are no sooner mentioned than we discover Depravity in

them. For as the Being and Essence of Things after they exist,

depend not upon any other, so neither do the Properties which

necessarily follow that being and Essence. Now such is the Evil

of some Actions, compared with a Nature guided by right Reason.

Therefore God suffers himself to be judged of according to this

Rule.18

Stoic Natural law

The Stoics claim the order of the universe is fundamentally

rational. Human rationality, therefore, is a person’s innate

moral compass. To reason and act rationally is to be in harmony

18 Hugo Grotius, The Rights of War and Peace, Vol. 1, Chapter I: “What War is, and what Right is.

with the universe. Violence and vice are consequences of

irrationality and not being in harmony with universal laws.19

They viewed Natural law, as a ruling principle based on

universal reason. They believed that this inherent rationality in

the universe was created by God, whose law applied universally

and equally.20 According to Marcus Aurelius, emperor of Rome and

one of the greatest of the later Roman stoics, “the rational

animal is consequently also a political and social animal” Human

beings, therefore, can acquire virtue only as citizens of the

state and members of society, not in withdrawal from their public

duties and obligations to their fellow citizens. These

obligations, the stoics argued, are known by all human beings on

the basis of reason alone. They are therefore, what the stoics

called natural laws, that is, ethical obligations we to one

another that exist by nature, not by convention, and are

therefore universally valid. They are known and apply in all

societies the world over.21

Cicero

Cicero (106-43 BCE) is an influential Roman jurist who was

heavily influenced by the Stoics in his understanding of natural

19 http://sevenpillarsinstitute.org/morality-101/agency-theory/natural-law

20 http://orias.berkeley.edu/summer2004/summer2004antnatlaw.htm

21 Brian R. Nelson: Western Political Thought: From Socrates to the Age of Ideology, 2nd Edition (New Jersey: Prentice Hall), pp. 74-75

law, which he described by writing that "True law is right reason

in agreement with nature." It is universal ("There will not be

different laws at Rome and at Athens or different laws now and in

the future, but one eternal and unchangeable law will be valid

for all nations and all times"), divinely-inspired, and divinely-

enforced. Law is not necessarily just, but justice is inherent in

nature.22

Hobbes

Thomas Hobbes had a different notion as regards natural law.

Since he is considered as the first great modern theorist, his

viewpoint differs from the classics. Hobbes was born during war

so his understanding of natural law is of negative approach. He

rejects the teleological view of human nature as a false and

dangerous illusion. Instead, he sees human nature as the restless

striving for power after power that has no end and therefore no

happiness or perfection. The rejection of end-directed motion

underlies Hobbes’s revolution in thinking from classical natural

law, and its perfectionist principle of virtue, to modern natural

rights, and its minimalist principle of self-preservation.23

St. Thomas Aquinas

Aquinas bases his doctrine on the natural law, as one would

expect, on his understanding of God and His relation to His

22 http://orias.berkeley.edu/summer2004/summer2004antnatlaw.htm23 http://www.nlnrac.org/earlymodern/hobbes

creation. He grounds his theory of natural law in the notion of

an eternal law in God. In asking whether there is an eternal law,

he begins by stating a general definition of all law. Law is a

dictate of reason from the ruler for the community he rules. This

dictate of reason is first and foremost within the reason or

intellect of the ruler. It is the idea of what should be done to

insure the well-ordered functioning of whatever community the

ruler has care for. It is a fundamental tenet of Aquinas

political theory that rulers rule for the sake of the governed,

like for the good and well-being of those subject to the ruler.

Aquinas concludes that God has in His intellect an idea by which

He governs the world. This Idea, in God, for the governance of

things is the eternal law.24

Natural law: Criticism

Attack

Defense

Philosopher’s quotation

Conclusion

24 http://www.aquinasonline.com/Topics/natlaw.html