JURISPRUDENCE

Chapter Four
[Natural Law]
 Concept and Nature of Natural Law
• The concept of Natural Law is based a conviction that there
are principles of law stronger than any statute, which can
be attained merely by light of reason from the nature
• It is called Natural Law because its principles can be
achieved by reason to deduce from nature certain rules
which provide an altogether prescription for human
behavior, whereby the nature is conceived as the supreme
legislator.
• It concerns with the search for absolute justice and values
which are agreeable to nature and state of man, without
which peace and happiness of society can never be
preserved.
• Classical Natural Law had also been associated
with the dictates of God. Blackstone’s
Commentaries on the Laws of England (1765)
observes;
– ‘Natural Law being coeval with mankind and
dictated by God himself, is of course, superior in
obligation to any other. It is binding all over the
globe in all countries and at all times. No human
laws are of any validity if contrary to this’
• According to Dias, the term of Natural Law has
been used to connote the following;
– As ideas to which legal development and
administration must conform
– A basic moral quality in law which prevents a total
separation of the ‘is’ from the ‘ought’
– The method of discovering the perfect law
– The content of perfect law deducible by reason
– The conditions sine qua non for the existence of
law
 Essential Principles of NL
• There exist ‘absolute values’ which can be deduced by
reason from the observation and comprehension of nature.
• That the validity of man-made law should be tested by
reference to those identified ‘absolute values’. In this sense
the Natural Law stands as a higher law which invalidates
any inconsistent positive law
• That the “absolute values” are universal and eternal. That
which is in accordance with nature is ‘good’ and that which
is against nature is ‘evil’
• There exists in nature an order which is rational that can be
known by man. So, that norms of human conduct which are
agreeable to nature may be considered as ‘law of nature’
 Essential…
• Nature, if understood correctly, will provide
criteria for universal, eternal and
comprehensible values from which value-
statements may be derived.
• That laws lacking moral validity is ‘wrong’ and
‘unjust’
• Good is what in accordance with nature and
evil is what contrary to nature
 Development of Natural Law
• The Greek Periods
– The Sophists
• They differentiate between ‘nature’ and ‘law’
• Nature is primary, basic and permanent, whereas law is
secondary, not original and permanent.
• They put forth a relativist philosophy, that human ideas are
relative and there is no such thing as absolute standards.
• They regarded law as purely utilitarian and the result of the
suitability of the conditions. The law is promulgated because
of the self interest of the law maker and obeyed for the self
interest of the governed.
 Development…
– Socrates (470-399 B.C)
• Man possesses insight which reveals to him the
goodness and badness of things and makes him
know the absolute and eternal law, i.e., the
natural law
• He put forth the absolute philosophy that
principle of morality should not change
• Regarded law as closely related to justice and
morality
 Development…
– Aristotle
• Law of nature is the universal law which has the same force
everywhere discoverable by the application of reason
• Positive law ought to try to incorporate the rules of natural law
• The positive law should be obeyed even if contrary to natural law
• He differentiates between Natural justice and legal justice
• Natural justice is universal and not changeable. Ex. I must return
that which has been lent to me.
• Legal justice also known as positive or conventional justice, which
is binding because it is in the form of decree/command issued by
the political authority. It is changeable according to circumstances.
For example, the statute of limitation.
 Development…
• The Stoics
– Hold that the entire world is governed by a ‘rational mind’ or ‘reason’
which draws distinction between right and wrong
– Thus, the law is the result of one`s concept of right and rectitude in
light of reason
– Their maxim ‘live according to nature’ which is governed by one`
reason.
– They contemplate NL as the law of reason. As long as a man lives
according to his reason, he is said to be in conformity with NL.
– Stoics period represents the Golden Age whereby people lived in an
age of absolute NL, where there was no family, slavery, ownership of
property or government, which was later demolished by greed and
selfishness.
– Hold the view that positive law must conform to the natural law
 Development…
• The Roman Period
– Cicero (106-43 B.C) representing the Roman period put forth the idea
of ‘true and primal law’ which was in conformity with ‘right reason
from the High God’
– he views NL as right reason in agreement with the nature, he says;
• True law is right reason in agreement with the nature. It is of
universal application, unchanging and eternal; it summons to duty
by its commands and deters from wrong by its prohibitions…it is a
sin to alter this law. Nor it is allowable to attempt to repeal any
part of it, and to annul it wholly is impossible.
– He stresses the following features of NL
• Immutability and universality
• Stands as a ‘higher’ law
• Ascertainable with the help of reason
– Law which is contrary with reason is invalid
 Development…
• Christian Jurists
– Augustine, he considers ‘law of nature’ as the perfect law
and a man lived in ‘golden age’ when he lived in a state of
innocence and justice governed by rules of reason.
– After the fall of man, the law of nature could no longer be
realized. It was replaced by human law and institutions of
property and government
– Even though human law is not perfect and does not
necessarily make men good, the law should be defended
and upheld so as to maintain peace among mankind.
– The human laws were to be ignored if they came into
conflict with the natural law. If they were unjust, they
could not be the law.
 Development…
– Gratian published a collection of texts known as
Decretum Gratianum, where he noted that the
law of nature was to be considered as the law of
God
– Hence NL was immutable and prevailed over man-
made law
– Man-made law, secular or ecclesiastical, which
was contrary to NL would be totally rejected
 Development…
• Medieval Period
– The observation of Thomas Aquinas represents the
dominant understanding of NL during this period
– He asserts that the rule and measure of human acts is the
reason through which some God`s purposes may be
discerned.
– He considered God`s law as ‘the reason of his wisdom’ and
human laws and institutions are best-founded when built
upon reason. [he seems to associate human reason with
the reason of God`s wisdom]
– Accordingly, he defines Human law as an ordinance of
reason for the common good made by him who has the
care of the community, and promulgated.
 Development…
– Aquinas divided law into four types, which are unified
and interrelated
• Lex Aeterna (the eternal law/divine reason)- known only to
God, by which all things are ruled. It is considered as the
God`s plan for the universe or His rational guidance of
created things. All unreasoning creatures must obey it, but
man who is endowed with free will can afford to disobey.
• Lex Naturalis (the Natural Law)- it is the law resulting from
man`s engagement in eternal law and can be discovered by
reason. As man possesses God`s given reason he may share
in Divine reason and derive from it a natural inclination to
such actions and ends that are fitting. It is immutable
 Development…
• The general precepts of NL consequential of a man`s
exercise of reason are
– The basic principle is to do good and avoid evil
– In every man, there is an aptitude to be good in accordance
with the nature
– On account of his reason, a man has a natural aptitude of
learning the truth about God and to live in society
• Lex Divina (Devine law)-the God`s law for mankind as
revealed in the scriptures to provides rules as to how a
man`s life should be conducted. It is to overcome the
limitations of the law known through human reason,
and provide a guide for man`s reason. It is not identical
with natural law, but it is not contrary to it.
 Development…
• Lex Humana (Human Law)-it is human made-law, supported
by reason. It must conform to natural law, and is enacted for
common good. It is a necessity because NL cannot find
solutions to day-to-day problems. It is also to compel
persons to act reasonably, mainly because people are self-
centered.
– Lex Humana is either just or unjust
• It is just when it has the power of binding in conscience
• It is unjust in two ways
– When it is contrary to human good. Example, when the law
imposes unequal burden on the people
– When it is opposed to divine good. Example, laws of tyrants
inducing to idolatory
 Development…
– Unjust law does not bind in conscience, except
perhaps to avoid scandal or disturbance or to
avoid further harm to the peoples` rights.
• The Renaissance Period (14th to the 17th
century)
– Signified the period of transition where the people
no longer showed allegiance to the church or
emperor-where the power of national sovereign
had increased
 Development…
– During this period, people were critical of the
state of affairs and conscious of their power
– The effects of the above, were
• The protestants denied the authority wielded
by the church
• Natural law adopted an aspect which was more
secular
• The authority of divine law was superseded by
the intellectual authority of reason.
 Development…
• The Decline of the Natural Law (19th to 20th
centuries)
– The contributing Factors
• Scientific theories had stolen a march over the
unproved hypotheses upon which the theory of NL was
based.
• Law became secularized-people lost faith in religion
and reason which were the basis of natural law
• There was a belief that improvements in law could be
brought empirically without appealing to ‘pure reason’
which formed the basis natural law theory
 Development…
• Psychological and anthropological research stressed
that law and justice were determined by adaptation to
the environment and other variables. This casted doubt
over the immutable status of the natural law.
• Some of the postulates of natural law had been
challenged by the positivist`s jurists. For example,
Jeremy Bentham described NL as ‘a mere work of the
fancy’
 Development…
• Revival of the Natural law (20th century)
– The factors are
• The Analytical and historical schools were seen as not
providing adequate solutions to problems relating to
indispensable values, such as justice and fairness which have
been the main concern of the Natural law.
• The aftermath of the 1st World War which categorically
destroyed the economic, social and political stability has
caused the people to return to the standards propagated by
the NL which were based on the higher and universal values.
Further, it was also considered necessary to have certain
norms to evaluate man-made rules of law
 Development…
• During the 2nd World War there was brutality and
anarchy in many countries, causing people to question
relativism in politic and law. For instance, Radbruch, a
Germany political philosopher, rejected relativism and
called for minimum absolute postulates for a just law.
• The overall bad effects of the two World Wars had led
to insecurity and uncertainty in life. This caused the
people to search for a new moral order.
• With the growth of militant ideologies, such Fascism
and Marxism, the people felt the need for the
development of ideologies to run counter the militant
ideologies.
 Criticism of NL
• Hume holds that knowledge of matters of facts
can be derived solely from the data of
experience-so called ‘transcendental knowledge’
which is not based upon experience has no value.
The metaphysical basis of NL invalidates its
methodology and conclusions. NL is ‘real’ only in
the sense that some individuals entertain a
feeling that it exists. Its truth cannot be asserted
meaningfully. The metaphysical basis of NL was
also attacked by Bentham and that the spread of
the doctrine of NL would undermine the fabric of
sovereignty within a community.
• The arbitrariness or inconsistency of the moral-
legal ideas that evolved on the basis of
fundamental postulates concerning the nature of
existence and men. {there is no unanimous
standard}
– Ross argued that doctrines of the NL have been ever
changing. Slavery was once supported and
condemned, equality and inequality of men have been
both advocated.
– Hobbes used NL for absolute power, Rousseau used
NL for absolute democracy, Aristotle used NL to
support the existing order.
 Criticism of NL…
• Ross argued that NL duplicated the positive legal
system because it was regarded as a set of
Natural rights above the positive rights.
• A positive right is backed coercion of the state whereas a
natural right is backed by the force emanates from the
hidden spiritual powers, an invisible dominion or sovereignty
beyond empirical reality.
• Abelson observed that NL lawyers attempted to
impose moral law rather than to merely protect
society from wrongful or undesirable actions. He
argued that this attempt has failed because men
cannot be made morally good by coercion.
 Criticism of NL…
• The NL theory has a built-in bias towards anarchy, calling for
the sovereignty of individual conscience and reason whereby
men a creature endowed with the capacity of reasoning can
decide or choose his alternative course of action based on
good moral judgment.
• Neilson questioned the title of law given to NL since NL is no
part of the positive law. He suggested that NL should be called
as certain fundamental moral rules or principles.
• Further, if NL is grounded in certain values, the name of the
values should have been pleaded instead of using the term of
NL which is abstract in meaning.
 NL Modern Theories
• Lon Luvois Fuller (June 15, 1902 – April 8, 1978)
• He was a noted legal philosopher, who criticized legal
positivism and defended a secular and procedural form of
natural law theory. Fuller was professor of Law at Harvard
University for many years, and is noted in American law for
his contributions to both jurisprudence and the law of
contracts. His debate in 1958 with the prominent British
legal philosopher H. L. A. Hart in the Harvard Law Review
(Vol. 71) was important in framing the modern conflict
between legal positivism and natural law theory. In his
widely discussed 1964 book, The Morality of Law, Fuller
argues that all systems of law contain an "internal
morality" that imposes on individuals a presumptive
obligation of obedience.
 NL Modern Theories…
• In his 1958 debate with Hart and more fully in The
Morality of Law (1964), Fuller sought to steer a middle
course between traditional natural law theory and legal
positivism.
• Like most legal academics of his day, Fuller rejected
traditional religious forms of natural law theory, which
view human law as rooted in a rationally knowable and
universally binding "higher law" that derives from God.
• He rejected the idea, that an unjust law is not a law. On
the other hand, Fuller also denied the core claim of
legal positivism that there is no necessary connection
between law and morality.
 NL Modern Theories…
• According to Fuller the purpose of law is to subject ‘human conduct to the
governance of rules’.
• Instead of postulating a substantive natural law approach which proclaims
a higher law than that enacted by the state, he adopts a procedural
natural law approach.
• He maintains that certain Moral standards, which he calls “Principles of
legality," are built into the very concept of law, so that nothing counts as
genuine/good law that fails to meet these standards.
• He argued that the law should have two aspects of morality; External and
Internal Morality
• External morality refers to the morality of aspiration or ideas to achieve a
meaningful co-existence in society. It is the concern of the substantive law.
• Internal morality which concerns with or stipulates the procedural
version is regraded as the precondition of a good law.
 NL Modern Theories…
• As far as Internal morality is concerned, he argues that
all legal rules must meet eight minimal conditions in
order to count as genuine laws. The rules must be (1)
sufficiently general, (2) publicly promulgated, (3)
prospective (i.e., applicable only to future behavior, not
past), (4) at least minimally clear and intelligible, (5)
free of contradictions, (6) relatively constant, so that
they don't continuously change from day to day, (7)
possible to obey, and (8) administered in a way that
does not wildly diverge from their obvious or apparent
meaning [that there must be a congruence between
the declared rules and the official actions].
 NL Modern Theories…
• If any of the eight principles is flagrantly
lacking in a system of governance, the system
will not be a legal one.
• The more closely a system is able to adhere to
them, the nearer it will be to the rule-of-law
ideal, though in reality all systems must make
compromises and will fall short of perfect
ideals of clarity, consistency, stability, and so
forth.
 NL Modern Theories…
• Hart criticizes that the eight desiderata are
‘unfortunately compatible with very great
inequity, and that ‘the compliance with the
eight desiderata is no guarantee of a just
order, for example Nazi Law of 1934 and the
apartheid South Africa legal system fulfill all
the eight desiderata, yet they were unjust
‘laws’.
 NL Modern Theories…
• H. L. A. Hart,(18 July 1907 – 19 December
1992)
– He is a positivist jurist
– However, he conceded that there is a ‘core of
indisputable truth in the doctrines of the NL’
– He opined that law is a social phenomenon, it
cannot be understood without considering the
social practices of a given community.
 NL Modern Theories…
– He propagated for the minimum content of the
NL, which he meant that there are certain rules
which are essential, if the individuals are to
survive and live together in a society. He
considered survival as the basic desire or
minimum goal for human law.
– He formulated the need for minimum content of
NL based on the his observation of ‘human
conditions’ which are called ‘simple truism’
exhibiting the following characteristics;
 NL Modern Theories…
• Human vulnerability to physical attacks
• Approximate equality of human in mental and
physical ability
• Limited altruism-human are neither angels nor
devils
• Limited resources of human requirements of
food, clothes, shelters etc.
• Limited understanding and strength of will in
the sense that there is no guarantee that
human shall cooperate with each others
 NL Modern Theories…
– The minimum content of law which considered by
Hart as ‘natural necessity’ are as follow;
• Laws must have restrictions on the free exercise of violence
• Laws must be based on mutual forbearance
• Laws must regulate the use of property
• Laws must provide for the creation of obligation
• Laws must provide for sanctions if they are not obeyed
– Hart says that a law contrary to any of the five
requirements is void.
– He argues that without such minimum content, laws
could not serve the minimum purpose of survival
which men need in associating with each other
• Dias criticizes that the requirements put by
Hart are too vague. For example, does
vulnerability require that law should be used
to discontinue hazardous activities, or only to
provide suitable compensation when injuries
are sustained?
• Similarly, the approximate equality is vague.
What is the criterion of equality and who
applies it?
 NL Modern Theories…
• John Mitchell Finnis (born 28 July
1940)
• Finnis is a legal philosopher and
author of Natural Law and Natural
Rights (1980, 2011), a seminal
contribution to the philosophy of law
and a restatement of natural law
doctrine.
 NL Modern Theories…
• NL before Finnis was based on moral values that
are objective and universal discernable by reason
from the study of the nature of the universe and
man.
• The law that lacking moral principles is not law,
Nazi law which was full of injustice was not law
from the NL`s perspective.
• According to Finnis, unjust laws are not denied
the title of ‘law’ but should be dismissed as
‘corruption of law’ or ‘law to a lesser degree’.
 NL Modern Theories…
• To him, unjust laws enjoy fringe meanings and
do not bind conscience.
• However, on the issue whether unjust laws
deserve obedience, he believes that
disobedience of such laws may erode the legal
system, if the laws are disobeyed by one
citizen, others may follow suit and
consequently, the law and authority may be
discredited.
 NL Modern Theories…
• In his effort to restate the concept of NL, he
observes that NL consists of two sets of
principles; the basic goods and requirements of
practical reasonableness
• Basic Goods
– By the term he means that there are certain basic
values that human beings want to have in their lives;
– There are; life, knowledge, play, aesthetic experience,
sociability of friendship, practical reasonableness and
religion.
 NL Modern Theories…
– Life-a basic value which corresponds to the human being`s drive
for self-preservation, all human societies concern for the value
of life, none allows killing without a fairly definite justification.
Life includes health, freedom form pain and the institution of
marriage, the procreation of children, etc.
– Knowledge is described as the pure desire to know, simply out
of curiosity, as well as a concerning interest and desire for truth.
– Play, a large and irreducible element in human culture, involving
‘engaging in performances which has no point beyond the
performance itself, enjoyed for its own sake’.
– Aesthetic experience is considered similarly to play however; it
does not essentially need an action to occur, may be found in
the appreciation of beauty in art or nature.
 NL Modern Theories…
– Sociability where it is realized through the creation of
friendships, to be in relationship of friendship is regarded as a
fundamental form of good.
– Practical reasonableness connoting the employment of one`s
intelligence to solve problems of deciding what to do, how to
live and shaping one`s character. It involves that one seeks to
bring an intelligent and reasonable order into one`s one actions
and habits and practical attitudes.
– Religion; Finnis gives this term a wide meaning- recognition of,
and concern about, an order of things ‘beyond each and every
man’. thus, it involves the concern about an order of things that
transcends our individual interests. Also concerns with "all those
beliefs that can be called matters of ultimate concern; questions
about the point of human existence".
 NL Modern Theories…
• The Attributes of the Basic Good
– Objective
– Basic: the other values are considered subordinate
– Fundamental: there is no hierarchal order within
the framework of the basic good. They are
common good for all human beings
– Pre-moral: because they furnish the ‘evaluative
substratum of all moral judgments.
– Self-evident: the basic good are self-evident to
anyone of the age of reason.
 NL Modern Theories…
• Practical Reasonableness
-by this term, he means that there are some
requirements of practical reasonableness that would
help structure the pursuit of goods; they are
 A coherent plan of life-One should have a harmonious set
of purposes as effective commitments
 No arbitrary preference among values. One ought not to
omit or unreasonably exclude or exaggerate any of the
basic human goods.
 No arbitrary preference among persons. One should
maintain impartiality in regard to others and their interests.
 NL Modern Theories…
Detachment and commitment. One should be both
open-minded and committed to one`s project.
The relevance of consequences. One should not
squander opportunities through inefficiency. Actions
should be reasonably efficient.
 Respect for every basic value in every act. One should
avoid acts that achieve nothing but damage or impede
one or more of the basic forms of human good.
The requirement of the common good. One should act
to advance the interest of one`s community.
Following one`s conscience. One should not do what
one feels should not be done.
 NL Modern Theories…
• The basic goods and the methodological
requirements have been observed as to
present guidelines for one`s course of action.
And that the requirements tell human being
how to act in striving for the basic human
goods.
 NL Modern Theories…
• Attack
– That he has failed to ascertain any absolute value
objectively but has subjectively selected his own
values. For instance, he has not mentioned ‘pleasure’
or ‘money’ or ‘shelter’ or ‘food’ or ‘liberty’ in the list
of basic goods.
– That his theory might be significant to the legislators
and the public, but it has limited relevance to the
judges who have to follow the rules even if they do
not agree with the rules and find them as violating
basic principles of natural justice.
 Natural Law and Social Contract
• SC is not an agreement in a strict legal sense
• It implies an idea that individuals have
consented, either explicitly or tacitly, to
surrender some of their natural rights
(freedom)and submit to the authority of the
ruler or to the decision of a majority, in
exchange for protection of their remaining
rights.
 Natural Law and Social Contract..
• The essence of the SC is as follows
– In primeval times, individuals were born into a
state of nature which was generally anarchic.
– Man`s natural reason and his innate need to live
within society led him to create a society by
contracting with others.
– The essence of the SC is to surrender of some
natural rights and powers to a Sovereign in the
expectation that he would safeguard individuals
and protect them against oppression.
 Natural Law and Social Contract..
• Thomas Hobbes believes that in a state of
nature, a man’s life is full of fear and
selfishness. He describes human`s life as
‘solitary, poor, nasty , brutish and short’.
• To escape that bad condition (anarchy), man
chose to enter into SC, to surrender natural
freedom in order to create an orderly society.
 Natural Law and Social Contract…
• To effect SC, man entered into 2 types of Contract
which are irrevocable (one of Hobbes`s principles
of NL is that men must fulfill their promises)
– Pactum Unionis; man entered into a pact to respect
each other`s life and property. The main idea is to live
in peace (preservation and enjoyment of life)
– Pactum Subjectionis- it is a pact to obey the
government chosen by the people themselves. They
give up their rights and liberty to the social authority.
• John Locke (1632-1704) believes (in contrast to
Hobbes) that man`s state of nature is a state of
peace, goodwill, mutual assistance, and
preservation. However, this golden age had one
major problem, that is the property being
unsecured.
• Thus, people entered into SC to protect their
natural rights to life, liberty, property and
enjoyment of private rights in a civil society for
common good.
• Jean-Jacques Rousseau (1712-1778) argues that
although man is born free, “everywhere he is in
chain’.
• He maintains that even man naturally (in golden
age) lived in freedom, equality, and happiness,
but with the advance of civilization, these virtues
disappeared. Thus, in search of peace and
happiness in life, man entered into the SC, and
surrendered his natural rights to the authorities.