Legal philosophy has many characteristics, but three of them are the most common:

Natural law is a school of legal philosophy which considers that there are invariable laws of nature which govern us, which are general to all human societies, and that our institutions should try to equal this natural law.

Analytic jurisprudence is indicate to be an objective study of law in impartial conditions, distinguishing it from natural law, which evaluates legal systems and laws throughout the structure of natural law theory, asks questions like, "What is law?" "What are the criteria for legal validity?" or "What is the relationship between law and morality?" and other such questions that legal philosophers may compromise.

Normative jurisprudence looks at the intention of legal systems, and which sorts of laws are adequate, asks what law ought to be. It overlaps with moral and political philosophy, and contains questions of whether one ought to follow the law, on what grounds law-breakers might correctly be punished, the correct uses and limits of regulation, how judges ought to decide cases.

http://www.aboutlawschools.org/theory/jurisprudence/

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 [1823]). 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 [2003]), 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 [1986] [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 [1875]).

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 [1988]). 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 [1876] [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 [1961]). 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 [1965]) 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 [1973]).

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 [1994]).

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 [1983]). 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 [1970]). 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 [1952]). 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, [1995]).

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 ofO. 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.

Further readings

Berman, Harold J. 1983. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge: Harvard Univ. Press.

George, Robert P., ed. 2003 Natural Law. Burlington, Vt.: Ashgate/Dartmouth.

Harris, Philip Anthony. 2002. The Distinction Between Law and Ethics in Natural Law Theory. Lewiston, N.Y.: Edwin Mellen Press.

Horwitz, Morton J. 1992. The Transformation of American Law, 1780–1860. New York: Oxford Univ. Press.

Levy, Leonard W. 1963. Jefferson and Civil Liberties: The Darker Side. Chicago: Elephant Paperback.

Locke, John. 1980. (First printed in 1690.) Second Treatise on Government. Indianapolis: Hacket

Publishing.

Norberto, Bobbio. 1993. Thomas Hobbes and the Natural Law Tradition. Chicago: Univ. of Chicago Press.

Pierce, Christine. 2001. Immovable Laws, Irresistible Rights: Natural Law, Moral Rights, and Feminist Ethics. Lawrence: Univ. Press of Kansas.

Pojman, Louis P. 1995. Ethics: Discovering Right and Wrong. Belmont, Calif.: Wadsworth.

Weinreb, Lloyd. 1987. Natural Law and Justice. Cambridge, Mass.: Harvard Univ. Press.

Wood, Gordon S. 1972. The Creation of the American Republic: 1776–1787. New York: Norton.

Zuckert, Michael P. 1994. Natural Rights and the New Republicanism. Princeton, N.J.: Princeton Univ. Press.

Cross-references

Abortion; Constitution of the United States; Death and Dying; Hobbes, Thomas; Jurisprudence; Libel and Slander; " Second Treatise on Government"(Appendix, Primary Document).

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

natural law n. 1) standards of conduct derived from traditional moral principles (first mentioned by Roman jurists in the first century A.D.) and/or God's law and will. The Biblical ten commandments, such as "thou shall not kill," are often included in those principles. Natural law assumes that all people believe in the same Judeo-Christian God, and thus share an understanding of natural law premises. 2) laws derived from nature and reason, embodied in the Declaration of Independence assertion that "all men are created equal, that they are endowed by their creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of happiness. 3) The opposite of "positive law," which is created by mankind through the state.

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

http://legal-dictionary.thefreedictionary.com/Natural+Law

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.

CROSS-REFERENCES

Abortion; Constitution of the United States; Death and

Dying; Hobbes, Thomas; Jurisprudence; Libel and Slander; "

Second Treatise on Government"(Appendix, Primary Document).

Additional TopicsNatural Law - 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…

Natural Law - 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 Enlightenm…

Natural Law - Historical Natural Law

The Zenger acquittal spawned two ideas that have become entrenched in U.S. jurisprudence. …

Natural Law - Further Readings

Berman, Harold J. 1983. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge: Harvard Univ. Press. George, Robert P., ed. 2003 Natural Law. Burlington, Vt.: Ashgate/Dartmouth. Harris, Philip Anthony. 2002. The Distinction Between Law and Ethics in Natural Law Theory. Lewiston, N.Y.: Edwin Mellen Press. Horwitz, Morton J. 1992. The Transformation of American Law, 1780–…

http://law.jrank.org/pages/8762/Natural-Law.html

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Natural lawFrom Wikipedia, the free encyclopedia

For other uses, see Natural law (disambiguation).

Natural law, or the law of nature (Latin: lex naturale), is any system of law which is purportedly determined

by nature, and thus universal.[1] Classically, natural law refers to the use of reason to analyze human

nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law (meaning

"man-made law", not "good law"; cf. posit) of a given political community, society, or nation-state, and thus

serves as a standard by which to critique said positive law.[2] According to natural law theory, the content of

positive law cannot be known without some reference to natural law (or something like it). Used in this way,

natural law can be invoked to criticize decisions about the statutes, but less so to criticize the law itself. Some

use natural law synonymously with natural justice or natural right (Latin ius naturale)[citation needed]

Although natural law is often conflated with common law, the two are distinct in that natural law is a view that

certain rights or values are inherent in or universally cognizable by virtue of human reason or human nature,

while common law is the legal tradition whereby certain rights or values are legally cognizable by virtue of

judicial recognition or articulation.[3] Natural law theories have, however, exercised a profound influence on the

development of English common law,[4] and have featured greatly in the philosophies of Thomas

Aquinas, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, John

Locke, Francis Hutcheson, Jean Jacques Burlamaqui, and Emmerich de Vattel . Because of the intersection

between natural law and natural rights, it has been cited as a component in United States Declaration of

Independence and the Constitution of the United States, as well as in the Declaration of the Rights of Man and

of the Citizen.[citation needed] Declarationism is that the founding of the United States is based on Natural law.

Contents

  [hide] 

1 History

o 1.1 Plato

o 1.2 Aristotle

o 1.3 Stoic natural law

o 1.4 Cicero

o 1.5 Christian natural law

o 1.6 English jurisprudence

o 1.7 American jurisprudence

o 1.8 Islamic natural law

o 1.9 Hobbes

o 1.10 Cumberland's rebuttal of Hobbes

o 1.11 Liberal natural law

2 Contemporary Catholic understanding

3 In contemporary jurisprudence

4 See also

5 Notes

6 References

7 External links

[edit]History

The use of natural law, in its various incarnations, has varied widely through its history. There are a number of

different theories of natural law, differing from each other with respect to the role that morality plays in

determining the authority of legal norms. This article will deal with its usages separately rather than attempt to

unify them into a single theory.

[edit]Plato

Although Plato does not have an explicit theory of natural law (he almost never uses the phrase natural law

except in Gorgias 484 and Timaeus 83e), his concept of nature, according to John Wild, it contains some of the

elements found in many natural law theories.[5] According to Plato we live in an orderly universe.[6] At the basis

of this orderly universe or nature are the forms, most fundamentally the Form of the Good, which Plato

describes as "the brightest region of Being".[7] The Form of the Good is the cause of all things and when it is

seen it leads a person to act wisely.[8] In the Symposium, the Good is closely identified with the Beautiful.[9] Also

in the Symposium, Plato describes how the experience of the Beautiful by Socrates enables him to resist the

temptations of wealth and sex.[10] In the Republic, the ideal community is “a city which would be established in

accordance with nature.”[11]

[edit]Aristotle

Greek philosophy emphasized the distinction between "nature" (physis, φúσις) on the one hand and "law",

"custom", or "convention" (nomos, νóμος) on the other. What the law commanded varied from place to place,

but what was "by nature" should be the same everywhere. A "law of nature" would therefore have had the

flavor more of a paradox than something which obviously existed.[1] Against the conventionalism that the

distinction between nature and custom could engender, Socrates and his philosophic heirs, Plato and Aristotle,

posited the existence of natural justice or natural right (dikaion physikon, δικαιον φυσικον, Latin ius naturale).

Of these, Aristotle is often said to be the father of natural law.[12]

Aristotle's association with natural law is due largely to the interpretation given to his works by Thomas

Aquinas.[13] This was based on Aquinas's conflation of natural law and natural right, the latter of which Aristotle

posits in Book V of the Nicomachean Ethics  (Book IV of the Eudemian Ethics ). Aquinas's influence was such

as to affect a number of early translations of these passages,[14] though more recent translations render them

more literally.[15] Aristotle notes that natural justice is a species of political justice, viz. the scheme

of distributive andcorrective justice that would be established under the best political community; were this to

take the form of law, this could be called a natural law, though Aristotle does not discuss this and suggests in

the Politics that the best regime may not rule by law at all.[16]

The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric, where

Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common"

law that is according to nature. The context of this remark, however, suggests only that Aristotle advised that it

could be rhetorically advantageous to appeal to such a law, especially when the "particular" law of one's own

city was averse to the case being made, not that there actually was such a law;[17] Aristotle, moreover,

considered two of the three candidates for a universally valid, natural law provided in this passage to be wrong.

[1] Aristotle's theoretical paternity of the natural law tradition is consequently disputed.

[edit]Stoic natural law

The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics. The

rise of natural law as a universal system coincided with the rise of large empires and kingdoms in the Greek

world.[18] Whereas the "higher" law to which Aristotle suggested one could appeal was emphatically natural, in

contradistinction to being the result ofdivine positive legislation, the Stoic natural law was indifferent to the

divine or natural source of the law: the Stoics asserted the existence of a rational and purposeful order to the

universe (a divine or eternal law), and the means by which a rational being lived in accordance with this order

was the natural law, which spelled out action that accorded with virtue.[1]

As the historian A.J. Carlyle notes: "There is no change in political theory so startling in its completeness as the

change from the theory of Aristotle to the later philosophical view represented by Cicero and Seneca.... We

think that this cannot be better exemplified than with regard to the theory of the equality of human

nature." [19] Charles H. McIlwain likewise observes that "the idea of the equality of men is the profoundest

contribution of the Stoics to political thought" and that "its greatest influence is in the changed conception of law

that in part resulted from it." [20]

[edit]Cicero

Cicero wrote in his De Legibus that both justice and law derive their origin from God.[21] For Cicero, natural law

obliges us to contribute to the general good of the larger society.[22] The purpose of positive laws is to provide

for "the safety of citizens, the preservation of states, and the tranquility and happiness of human life." In this

view, "wicked and unjust statutes" are "anything but 'laws,'" because "in the very definition of the term 'law'

there inheres the idea and principle of choosing what is just and true."[23] Law, for Cicero, "ought to be a

reformer of vice and an incentive to virtue."[24] Cicero expressed the view that "the virtues which we ought to

cultivate, always tend to our own happiness, and that the best means of promoting them consists in living with

men in that perfect union and charity which are cemented by mutual benefits."[22]

Cicero influenced the discussion of natural law for many centuries to come, up through the era of the American

Revolution. The jurisprudence of the Roman Empire was rooted in Cicero, who held "an extraordinary grip . . .

upon the imagination of posterity" as "the medium for the propagation of those ideas which informed the law

and institutions of the empire."[25]Cicero's conception of natural law "found its way to later centuries notably

through the writings of Saint Isidore of Seville and the Decretum of Gratian ."[26] Thomas Aquinas, in his

summary of medieval natural law, quoted Cicero's statement that "nature" and "custom" were the sources of a

society's laws.[27]

The Renaissance Florentine chancellor Leonardo Bruni praised Cicero as the man "who carried philosophy

from Greece to Italy, and nourished it with the golden river of his eloquence."[28] The legal culture of Elizabethan

England, exemplified by Sir Edward Coke, was "steeped in Ciceronian rhetoric."[29] The Scottish moral

philosopher Francis Hutcheson, as a student at Glasgow, "was attracted most by Cicero, for whom he always

professed the greatest admiration."[30] More generally in eighteenth-century Great Britain, Cicero's name was a

household word among educated people.[31] Likewise, "in the admiration of early Americans Cicero took pride of

place as orator, political theorist, stylist, and moralist."[32]

The British polemicist Thomas Gordon "incorporated Cicero into the radical ideological tradition that travelled

from the mother country to the colonies in the course of the eighteenth century and decisively shaped early

American political culture."[33] Cicero's description of the immutable, eternal, and universal natural law was

quoted by Burlamaqui [34]  and later by the American revolutionary legal scholar James Wilson.[35] Cicero

became John Adams's "foremost model of public service, republican virtue, and forensic eloquence."[36] Adams

wrote of Cicero that "as all the ages of the world have not produced a greater statesman and philosopher

united in the same character, his authority should have great weight."[37] Thomas Jefferson "first encountered

Cicero as a schoolboy learning Latin, and continued to read his letters and discourses as long as he lived. He

admired him as a patriot, valued his opinions as a moral philosopher, and there is little doubt that he looked

upon Cicero's life, with his love of study and aristocratic country life, as a model for his own."[38] Jefferson

described Cicero as "the father of eloquence and philosophy."[39]

[edit]Christian natural law

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See also: Biblical law in Christianity

Paul of Tarsus wrote in his Epistle to the Romans: "For when Gentiles, who do not have the law, by nature do

the things contained in the law, these, although not having the law, are a law unto themselves, their conscience

also bearing witness."[40] The intellectual historian A.J. Carlyle has commented on this passage as follows:

There can be little doubt that St Paul's words imply some conception analogous to the 'natural law' in Cicero, a

law written in men's hearts, recognized by man's reason, a law distinct from the positive law of any State, or

from what St Paul recognized as the revealed law of God. It is in this sense that St Paul's words are taken by

the Fathers of the fourth and fifth centuries like St Hilary of Poitiers, St Ambrose, and St Augustine, and there

seems no reason to doubt the correctness of their interpretation.[41]

Some early Church Fathers, especially those in the West, sought to incorporate natural law into Christianity.

The most notable among these was Augustine of Hippo, who equated natural law with

man's prelapsarian state; as such, a life according to nature was no longer possible and men needed instead to

seek salvation through the divine law and grace of Jesus Christ.

In the Twelfth Century, Gratian equated the natural law with divine law. A century later, St. Thomas Aquinas in

his Summa Theologiae I-II qq. 90-106, restored Natural Law to its independent state, asserting natural law as

the rational creature's participation in the eternal law. Yet, since human reason could not fully comprehend

the Eternal law, it needed to be supplemented by revealed Divine law. (See also Biblical law in Christianity.)

Meanwhile, Aquinas taught that all human or positive laws were to be judged by their conformity to the natural

law. An unjust law is not a law, in the full sense of the word. It retains merely the 'appearance' of law insofar as

it is duly constituted and enforced in the same way a just law is, but is itself a 'perversion of law.'[42] At this point,

the natural law was not only used to pass judgment on the moral worth of various laws, but also to determine

what the law said in the first place. This principle laid the seed for possible societal tension with reference to

tyrants.[43]

The natural law was inherently teleological and deontological in that although it is aimed at goodness, it is

entirely focused on the ethicalness of actions, rather than the consequence. The specific content of the natural

law was therefore determined by a conception of what things constituted happiness, be they temporal

satisfaction or salvation. The state, in being bound by the natural law, was conceived as an institution directed

at bringing its subjects to true happiness.

In the 16th century, the School of Salamanca (Francisco Suárez, Francisco de Vitoria, etc.) further developed a

philosophy of natural law. After the Church of England broke from Rome, the English theologian Richard

Hooker adapted Thomistic notions of natural law to Anglicanism. There are five important principles: to live, to

learn, to reproduce, to worship God, and to live in an ordered society.[citation needed]

[edit]English jurisprudence

Heinrich A. Rommen has observed "the tenacity with which the spirit of the English common law retained the

conceptions of natural law and equity which it had assimilated during the Catholic Middle Ages, thanks

especially to the influence of Henry de Bracton (d. 1268) and Sir John Fortescue (d. cir. 1476).[44] Bracton's

translator notes that Bracton "was a trained jurist with the principles and distinctions of Roman jurisprudence

firmly in mind"; but Bracton adapted such principles to English purposes rather than copying slavishly.[45] In

particular, Bracton turned the imperial Roman maxim that "the will of the prince is law" on its head, insisting that

the king is under the law.[46] The legal historian Charles F. Mullett has noted Bracton's "ethical definition of law,

his recognition of justice, and finally his devotion to natural rights."[47] Bracton considered justice to be the

"fountain-head" from which "all rights arise."[48] For his definition of justice, Bracton quoted the twelfth-century

Italian jurist Azo: "'Justice is the constant and unfailing will to give to each his right.'"[49] Bracton's work was the

second legal treatise studied by the young apprentice lawyer Thomas Jefferson.[50]

Sir John Fortescue stressed "the supreme importance of the law of God and of nature" in works that

"profoundly influenced the course of legal development in the following centuries."[51]The legal scholar Ellis

Sandoz has noted that "the historically ancient and the ontologically higher law--eternal, divine, natural--are

woven together to compose a single harmonious texture in Fortescue's account of English law."[52] As the legal

historian Norman Doe explains: "Fortescue follows the general pattern set by Aquinas. The objective of every

legislator is to dispose people to virtue. It is by means of law that this is accomplished. Fortescue's definition of

law (also found in Accursius and Bracton), after all, was 'a sacred sanction commanding what is virtuous

[honesta] and forbidding the contrary.'"[53] Fortescue cited Leonardo Bruni for his statement that "virtue alone

produces happiness."[54]

Christopher St. Germain's Doctor and Student was a classic of English jurisprudence,[55] and it was thoroughly

annotated by Thomas Jefferson.[56] St. Germain informs his readers that English lawyers generally don't use the

phrase "law of nature," but rather use "reason" as the preferred synonym.[57][58] Norman Doe notes that St.

Germain's view "is essentially Thomist," quoting Thomas Aquinas's definition of law as "an ordinance of reason

made for the common good by him who has charge of the community, and promulgated."[59]

Sir Edward Coke was the preeminent jurist of his time.[60] Coke's preeminence extended across the ocean: "For

the American revolutionary leaders, 'law' meant Sir Edward Coke's custom and right reason."[61] [62] Coke

defined law as "perfect reason, which commands those things that are proper and necessary and which

prohibits contrary things."[63] For Coke, human nature determined the purpose of law; and law was superior to

any one man's reason or will.[64] Coke's discussion of natural law appears in his report of Calvin's Case (1608):

"The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his

preservation and direction." In this case the judges found that "the ligeance or faith of the subject is due unto

the King by the law of nature: secondly, that the law of nature is part of the law of England: thirdly, that the law

of nature was before any judicial or municipal law: fourthly, that the law of nature is immutable." To support

these findings, the assembled judges (as reported by Coke, who was one of them) cited as

authorities Aristotle,Cicero, and the Apostle Paul; as well as Bracton, Fortescue, and St. Germain.[65]

[edit]American jurisprudence

The U.S. Declaration of Independence states that it has become necessary for the United States to assume

"the separate and equal station to which the Laws of Nature and of Nature's God entitle them". Some early

American lawyers and judges perceived natural law as too tenuous, amorphous and evanescent a legal basis

for grounding concrete rights andgovernmental limitations.[3] Natural law did, however, serve as authority for

legal claims and rights in some judicial decisions, legislative acts, and legal pronouncements.[66] Robert Lowry

Clinton argues that the U.S. Constitution rests on a common law foundation and the common law, in turn, rests

on a classical natural law foundation.[67]

[edit]Islamic natural law

Abū Rayhān al-Bīrūnī, an Islamic scholar and polymath scientist, understood natural law as the law of the

jungle. He argued that the antagonism between human beings can only be overcome through a divine law,

which he believed to have been sent through prophets. This is also the position of the Ashari school, the

largest school of Sunni theology.[68] Averroes (Ibn Rushd), in his treatise on Justice and Jihad and his

commentary on Plato's Republic, writes that the human mind can know of the unlawfulness of killing and

stealing and thus of the fivemaqasid or higher intents of the Islamic sharia or to protect religion, life, property,

offspring, and reason. The concept of natural law entered the mainstream of Western culture through his

Aristotelian commentaries, influencing the subsequent Averroist movement and the writings of Thomas

Aquinas.[69]

The Maturidi school, the second largest school of Sunni theology, posits the existence of a form of natural

law. Abu Mansur al-Maturidi stated that the human mind could know of the existence of God and the major

forms of 'good' and 'evil' without the help of revelation. Al-Maturidi gives the example of stealing which is known

to be evil by reason alone due to man's working hard for his property. Killing, fornication, and drinking alcohol

were all 'evils' which the human mind could know of according to al-Maturidi. The concept of Istislah in Islamic

lawbears some similarities to the natural law tradition in the West, as exemplified by Thomas Aquinas.

However, whereas natural law deems good that which is known self-evidently to be good, according as it tends

towards the fulfilment of the person, istislah calls good whatever is connected to one of five "basic goods". Al-

Ghazali abstracted these "basic goods" from the legal precepts in the Qur'an and Sunnah: they are religion,

life, reason, lineage and property. Some add also "honour". Ibn Qayyim Al-Jawziyya  also posited that human

reason could discern between 'great sins' and good deeds.[citation needed]

[edit]Hobbes

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By the 17th Century, the Medieval teleological view came under intense criticism from some quarters. Thomas

Hobbes instead founded a contractualist theory  of legal positivism on what all men could agree upon: what they

sought (happiness) was subject to contention, but a broad consensus could form around what they feared

(violent death at the hands of another). The natural law was how a rational human being, seeking to survive

and prosper, would act. It was discovered by considering humankind's natural rights, whereas previously it

could be said that natural rights were discovered by considering the natural law. In Hobbes' opinion, the only

way natural law could prevail was for men to submit to the commands of the sovereign. Because the ultimate

source of law now comes from the sovereign, and the sovereign's decisions need not be grounded in morality,

legal positivism is born. Jeremy Bentham's modifications on legal positivism further developed the theory.

As used by Thomas Hobbes in his treatises Leviathan and De Cive, natural law is "a precept, or general rule,

found out by reason, by which a man is forbidden to do that which is destructive of his life, or takes away the

means of preserving the same; and to omit that by which he thinks it may best be preserved."[70]

According to Hobbes, there are nineteen Laws. The first two are expounded in chapter XIV of Leviathan ("of

the first and second natural laws; and of contracts"); the others in chapter XV ("of other laws of nature").

The first Law of nature is that every man ought to endeavour peace, as far as

he has hope of obtaining it; and when he cannot obtain it, that he may seek

and use all helps and advantages of war.

The second Law of nature is that a man be willing, when others are so too, as

far forth, as for peace, and defence of himself he shall think it necessary, to

lay down this right to all things; and be contented with so much liberty against

other men, as he would allow other men against himself.

The third Law is that men perform their covenants made. In this law of nature

consisteth the fountain and original of justice... when a covenant is made, then

to break it is unjust and the definition of injustice is no other than the not

performance of covenant. And whatsoever is not unjust is just.

The fourth Law is that a man which receiveth benefit from another of mere

grace, endeavour that he which giveth it, have no reasonable cause to repent

him of his good will. Breach of this law is called ingratitude.

The fifth Law is complaisance: that every man strive to accommodate himself

to the rest. The observers of this law may be called sociable; the contrary,

stubborn, insociable, froward, intractable.

The sixth Law is that upon caution of the future time, a man ought to pardon

the offences past of them that repenting, desire it.

The seventh Law is that in revenges, men look not at the greatness of the evil

past, but the greatness of the good to follow.

The eighth Law is that no man by deed, word, countenance, or gesture,

declare hatred or contempt of another. The breach of which law is commonly

called contumely.

The ninth Law is that every man acknowledge another for his equal by

nature. The breach of this precept is pride.

The tenth law is that at the entrance into the conditions of peace, no man

require to reserve to himself any right, which he is not content should be

reserved to every one of the rest.The breach of this precept is arrogance, and

observers of the precept are called modest.

The eleventh law is that if a man be trusted to judge between man and man,

that he deal equally between them.

The twelfth law is that such things as cannot be divided, be enjoyed in

common, if it can be; and if the quantity of the thing permit, without stint;

otherwise proportionably to the number of them that have right.

The thirteenth law is the entire right, or else...the first possession (in the case

of alternating use), of a thing that can neither be divided nor enjoyed in

common should be determined by lottery.

The fourteenth law is that those things which cannot be enjoyed in common,

nor divided, ought to be adjudged to the first possessor; and in some cases to

the first born, as acquired by lot.

The fifteenth law is that all men that mediate peace be allowed safe conduct.

The sixteenth law is that they that are at controversie, submit their Right to the

judgement of an Arbitrator.

The seventeenth law is that no man is a fit Arbitrator in his own cause.

The eighteenth law is that no man should serve as a judge in a case if greater

profit, or honour, or pleasure apparently ariseth [for him] out of the victory of

one party, than of the other.

The nineteenth law is that in a disagreement of fact, the judge should not give

more weight to the testimony of one party than another, and absent other

evidence, should give credit to the testimony of other witnesses.

Hobbes's philosophy includes a frontal assault on the founding principles of the earlier natural legal tradition,

[71] disregarding the traditional association of virtue with happiness,[72] and likewise re-defining "law" to remove

any notion of the promotion of the common good.[73] Hobbes has no use for Aristotle's association of nature with

human perfection, inverting Aristotle's use of the word "nature." Hobbes posits a primitive, unconnected state of

nature in which men, having a "natural proclivity...to hurt each other" also have "a Right to every thing, even to

one anothers body";[74] and "nothing can be Unjust" in this "warre of every man against every man" in which

human life is "solitary, poore, nasty, brutish, and short."[75] RejectingCicero's view that men join in society

primarily through "a certain social spirit which nature has implanted in man,"[76] Hobbes declares that men join

in society simply for the purpose of "getting themselves out from that miserable condition of Warre, which is

necessarily consequent...to the naturall Passions of men, when there is no visible Power to keep them in

awe."[77] As part of his campaign against the classical idea of natural human sociability, Hobbes inverts that

fundamental natural legal maxim, the Golden Rule. Hobbes's version is "Do not that to another, which thou

wouldst not have done to thy selfe."[78]

[edit]Cumberland's rebuttal of Hobbes

The English cleric Richard Cumberland wrote a lengthy and influential attack on Hobbes's depiction of

individual self-interest as the essential feature of human motivation. Historian Knud Haakonssen has noted that

in the eighteenth century, Cumberland was commonly placed alongside Hugo Grotius and Samuel

Pufendorf "in the triumvirate of seventeenth-century founders of the 'modern' school of natural law."[79] The

eighteenth-century philosophers Shaftesbury and Hutcheson "were obviously inspired in part by

Cumberland."[80] Historian Jon Parkin likewise describes Cumberland's work as "one of the most important

works of ethical and political theory of the seventeenth century."[81] Parkin observes that much of Cumberland's

material "is derived from Roman Stoicism, particularly from the work of Cicero, as "Cumberland deliberately

cast his engagement with Hobbes in the mould of Cicero's debate between the Stoics, who believed that nature

could provide an objective morality, and Epicureans, who argued that morality was human, conventional and

self-interested." [82] In doing so, Cumberland de-emphasized the overlay of Christian dogma (in particular, the

doctrine of "original sin" and the corresponding presumption that humans are incapable of "perfecting"

themselves without divine intervention) that had accreted to natural law in the Middle Ages.

By way of contrast to Hobbes's multiplicity of laws, Cumberland states in the very first sentence of his Treatise

of the Laws of Nature that "all the Laws of Nature are reduc'd to that one, of Benevolence toward all

Rationals." [83] He later clarifies: "By the name Rationals I beg leave to understand, as well God as Man; and I

do it upon the Authority of Cicero." Cumberland argues that the mature development ("perfection") of human

nature involves the individual human willing and acting for the common good.[84] For Cumberland, human

interdependence precludes Hobbes's natural right of each individual to wage war against all the rest for

personal survival. However, Haakonssen warns against reading Cumberland as a proponent of "enlightened

self-interest." Rather, the "proper moral love of humanity" is "a disinterested love of God through love of

humanity in ourselves as well as others."[85] Cumberland concludes that actions "principally conducive to our

Happiness" are those which promote "the Honour and Glory of God" and also "Charity and Justice towards

men."[86] Cumberland emphasizes that desiring the well-being of our fellow humans is essential to the "pursuit

of our own Happiness."[87] He cites "reason" as the authority for his conclusion that happiness consists in "the

most extensive Benevolence," but he also mentions as "Essential Ingredients of Happiness" the "Benevolent

Affections," meaning "Love and Benevolence towards others," as well as "that Joy, which arises from their

Happiness."[88]

[edit]Liberal natural law

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Liberal natural law grew out of the medieval Christian natural law theories and out of Hobbes' revision of

natural law, sometimes in an uneasy balance of the two.

Hugo Grotius based his philosophy of international law on natural law. In particular, his writings on freedom of

the seas and just war theory directly appealed to natural law. About natural law itself, he wrote that "even the

will of an omnipotent being cannot change or abrogate" natural law, which "would maintain its objective validity

even if we should assume the impossible, that there is no God or that he does not care for human affairs." (De

iure belli ac pacis, Prolegomeni XI). This is the famous argument etiamsi daremus (non esse Deum), that made

natural law no longer dependent on theology.

John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of

Government. There is considerable debate about whether his conception of natural law was more akin to that

of Aquinas (filtered through Richard Hooker) or Hobbes' radical reinterpretation, though the effect of Locke's

understanding is usually phrased in terms of a revision of Hobbes upon Hobbesean contractualist grounds.

Locke turned Hobbes' prescription around, saying that if the ruler went against natural law and failed to protect

"life, liberty, and property," people could justifiably overthrow the existing state and create a new one.[89]

While Locke spoke in the language of natural law, the content of this law was by and large protective of natural

rights, and it was this language that later liberal thinkers preferred. Thomas Jefferson, arguably echoing Locke,

appealed to unalienable rights in the Declaration of Independence, "We hold these truths to be self-evident,

that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that

among these are Life, Liberty and the pursuit of Happiness."[90]

The Belgian philosopher of law Frank van Dun is one among those who are elaborating a secular

conception [2] of natural law in the liberal tradition. Libertarian theorist Murray Rothbardargues that "the very

existence of a natural law discoverable by reason is a potentially powerful threat to the status quo and a

standing reproach to the reign of blindly traditional custom or the arbitrary will of the State apparatus."[91] Ludwig

von Mises states that he relaid the general sociological and economic foundations of the liberal doctrine upon

utilitarianism, rather than natural law, but R.A. Gonce argues that "the reality of the argument constituting his

system overwhelms his denial."[92] David Gordon notes, "When most people speak of natural law, what they

have in mind is the contention that morality can be derived from human nature. If human beings are rational

animals of such-and-such a sort, then the moral virtues are...(filling in the blanks is the difficult part)."[93]

However, a secular critique of the natural law doctrine was stated by Pierre Charron in his De la

sagesse (1601): "The sign of a natural law must be the universal respect in which it is held, for if there was

anything that nature had truly commanded us to do, we would undoubtedly obey it universally: not only would

every nation respect it, but every individual. Instead there is nothing in the world that is not subject to

contradiction and dispute, nothing that is not rejected, not just by one nation, but by many; equally, there is

nothing that is strange and (in the opinion of many) unnatural that is not approved in many countries, and

authorized by their customs."

[edit]Contemporary Catholic understanding

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The Roman Catholic Church holds the view of natural law set forth by Thomas Aquinas,[94] particularly in

his Summa Theologica, and often as filtered through the School of Salamanca. This view is also shared by

some Protestant churches.[95]

The Catholic Church understands human beings to consist of body and mind, the physical and the non-physical

(or soul perhaps), and that the two are inextricably linked.[96] Humans are capable of discerning the difference

between good and evil because they have a conscience.[97] There are many manifestations of the good that we

can pursue. Some, like procreation, are common to other animals, while others, like the pursuit of truth, are

inclinations peculiar to the capacities of human beings.[98] Some contemporary Catholic theologians, such

asJohn Wijngaards, dispute the Magisterium's interpretation of Natural Law as applied to specific points of

sexual ethics, such as in the areas of contraceptives and homosexual unions.[99]

To know what is right, one must use one's reason and apply it to Aquinas' precepts. This reason is believed to

be embodied, in its most abstract form, in the concept of a primary precept: "Good is to be sought, evil

avoided."[100] St. Thomas explains that:

there belongs to the natural law, first, certain most general precepts, that are known to all; and secondly,

certain secondary and more detailed precepts, which are, as it were, conclusions following closely from first

principles. As to those general principles, the natural law, in the abstract, can nowise be blotted out from men's

hearts. But it is blotted out in the case of a particular action, insofar as reason is hindered from applying the

general principle to a particular point of practice, on account of concupiscence or some other passion, as stated

above (77, 2). But as to the other, i.e., the secondary precepts, the natural law can be blotted out from the

human heart, either by evil persuasions, just as in speculative matters errors occur in respect of necessary

conclusions; or by vicious customs and corrupt habits, as among some men, theft, and even unnatural vices,

as the Apostle states (Rm. i), were not esteemed sinful.[101]

However, while the primary and immediate precepts cannot be "blotted out", the secondary precepts can be.

Therefore, for a deontological ethical theory they are open to a surprisingly large amount of interpretation and

flexibility. Any rule that helps man to live up to the primary or subsidiary precepts can be a secondary precept,

for example:

Drunkenness is wrong because it injures one's health, and worse, destroys

one's ability to reason, which is fundamental to man as a rational animal (i.e.

does not support self preservation).

Theft is wrong because it destroys social relations, and man is by nature a

social animal (i.e. does not support the subsidiary precept of living in society).

Natural moral law is concerned with both exterior and interior acts, also known as action and motive. Simply

doing the right thing is not enough; to be truly moral one's motive must be right as well. For example, helping

an old lady across the road (good exterior act) to impress someone (bad interior act) is wrong. However, good

intentions don't always lead to good actions. The motive must coincide with the cardinal or theological

virtues. Cardinal virtues are acquired through reason applied to nature; they are:

1. Prudence

2. Justice

3. Temperance

4. Fortitude

The theological virtues are:

1. Faith

2. Hope

3. Charity

According to Aquinas, to lack any of these virtues is to lack the ability to make a moral choice. For example,

consider a man who possesses the virtues of justice, prudence, and fortitude, yet lacks temperance. Due to his

lack of self control and desire for pleasure, despite his good intentions, he will find himself swaying from the

moral path.

[edit]In contemporary jurisprudence

This law-related article does not cite its references or sources. You can help Wikipedia by including appropriate citations, which can be found through legal research. (April 2009)

In jurisprudence, natural law can refer to the several doctrines:

That just laws are immanent in nature; that is, they can be "discovered" or

"found" but not "created" by such things as a bill of rights;

That they can emerge by the natural process of resolving conflicts, as

embodied by the evolutionary process of the common law; or

That the meaning of law is such that its content cannot be determined except

by reference to moral principles. These meanings can either oppose or

complement each other, although they share the common trait that they rely

on inherence as opposed to design in finding just laws.

Whereas legal positivism would say that a law can be unjust without it being any less a law, a natural law

jurisprudence would say that there is something legally deficient about an unjust law. Legal interpretivism,

famously defended in the English speaking world by Ronald Dworkin, claims to have a position different from

both natural law and positivism.

Besides utilitarianism and Kantianism, natural law jurisprudence has in common with virtue ethics that it is a

live option for a first principles ethics theory in analytic philosophy.

The concept of natural law was very important in the development of the English common law. In the struggles

between Parliament and the monarch, Parliament often made reference to the Fundamental Laws of

England which were at times said to embody natural law principles since time immemorial and set limits on the

power of the monarchy. According to William Blackstone, however, natural law might be useful in determining

the content of the common law and in deciding cases of equity, but was not itself identical with the laws of

England. Nonetheless, the implication of natural law in the common law tradition has meant that the great

opponents of natural law and advocates of legal positivism, like Jeremy Bentham, have also been staunch

critics of the common law.

Natural law jurisprudence is currently undergoing a period of reformulation (as is legal positivism). The most

prominent contemporary natural law jurist, Australian John Finnis, is based in Oxford, but there are also

Americans Germain Grisez , Robert P. George, and Canadian Joseph Boyle. All have tried to construct a new

version of natural law. The 19th-century anarchistand legal theorist, Lysander Spooner, was also a figure in the

expression of modern natural law.

"New Natural Law" as it is sometimes called, originated with Grisez. It focuses on "basic human goods," such

as human life, knowledge, and aesthetic experience, which are self-evidently and intrinsically worthwhile, and

states that these goods reveal themselves as being incommensurable with one another.

The tensions between natural law and positive law have played, and continue to play a key role in the

development of international law.[102]

[edit]See also

Aristotle

Antigone

Thomas Aquinas

Jean Barbeyrac

Richard Cumberland

Declarationism

John Finnis

Hugo Grotius

Thomas Hobbes

International legal theory

John Locke

Legal positivism

Lysander Spooner

Moral realism

Natural justice

Natural order

Natural rights

Naturalistic fallacy

Non-aggression principle

Objectivism (philosophy)

Orders of creation

Samuel von Pufendorf

Purposive theory

Rule of law

Rule according to higher law

School of Salamanca

Spontaneous order

Stoicism

Substantive due process

Unenumerated rights

Xeer

White Rose Society

[edit]Notes

1. ^ a b c d "Natural Law," International Encyclopedia of the Social Sciences.

2. ̂  Natural Law

3. ^ a b Douglas E. Edlin (Jul., 2006), "Judicial Review without a Constitution", Polity (Palgrave

Macmillan Journals) 38 (3): 345–368, doi:10.1057/palgrave.polity.2300065,JSTOR 3877071.

4. ̂  Blackstone, Commentaries on the Laws of England

5. ̂  Wild, J. (1953) Plato’s Modern Enemies and the Theory of Natural Law. Chicago:

University of Chicago Press, p. 136.

6. ̂  Plato, Gorgias 508a.

7. ̂  Plato, The Republic, 518b–d. Quoted in Shear, J. (1990) The Inner Dimension. New York:

Peter Lang, p. 17.

8. ̂  Plato, The Republic, 540a, 517b–d.

9. ̂  Plato, Symposium, 205e–6a.

10. ̂  Plato, Symposium, 211d–e.

11. ̂  Plato, The Republic, 428e9.

12. ̂  Shellens, "Aristotle on Natural Law."

13. ̂  Jaffa, Thomism and Aristotelianism.

14. ̂  H. Rackham, trans., Nicomachean Ethics, Loeb Classical Library; J. A. K. Thomson, trans.

(revised by Hugh Tedennick), Nicomachean Ethics, Penguin Classics.

15. ̂  Joe Sachs, trans., Nicomachean Ethics, Focus Publishing

16. ̂  R. Corbett, "The Question of Natural Law in Aristotle," History of Political Thought 30, no. 2

(Summer 2009): 229–50; cf. Aristotle, Nicomachean Ethics, Bk. V, ch. 6–7; Politics, Bk. III,

ch. 16.

17. ̂  Shellens, "Aristotle on Natural Law," 75–81; cf. Rhetoric 1373b2–8.

18. ̂  Lloyd's Introduction to Jurisprudence Seventh Edition.

19. ̂  A.J. Carlyle, A History of Medieval Political Theory in the West, vol. 1 (Edinburgh, 1903).

pp. 8,9.

20. ̂  Charles H. McIlwain, The Growth of Political Thought in the West: From the Greeks to the

End of the Middle Ages (New York, 1932), pp. 114-15.

21. ̂  Francis Barham, Introduction to The Political Works of Marcus Tullius

Cicero,http://oll.libertyfund.org/index.php?

option=com_content&task=view&id=747&Itemid=284

22. ^ a b Barham

23. ̂  Cicero, De Legibus (Keyes translation), bk. 2, sec. 11.

24. ̂  Cicero, De Legibus (Keyes translation), bk. 1, sec. 58.

25. ̂  Charles Norris Cochrane, Christianity and Classical Culture: A Study of Thought and Action

from Augustus to Augustine (New York: Oxford University Press, 1957), p. 39.

26. ̂  Edward S. Corwin, The "Higher Law" Background of American Constitutional Law (Ithaca,

N.Y.: Cornell University Press, 1955), pp. 17-18.

27. ̂  Thomas Aquinas, Treatise on Law (Summa Theologica, Questions 90-97), ed. Stanley

Parry (Chicago: Henry Regnery Company, 1969), p. 18

28. ̂  Quoted in Quentin Skinner, The Foundations of Modern Political Thought(Cambridge,

1978), vol. 1, p.89.

29. ̂  Allen D. Boyer, "Sir Edward Coke, Ciceronianus: Classical Rhetoric and the Common Law

Tradition," in Law, Liberty, and Parliament: Selected Essays on the Writings of Sir Edward

Coke, ed. Allen D. Boyer (Indianapolis: Liberty Fund, 2004), pp. 224-25.

30. ̂  William Robert Scott, Francis Hutcheson: His Life, Teaching, and Position in the History of

Philosophy (Cambridge, 1900; repr. New York: Augustus M. Kelley, 1966), p. 15

31. ̂  W.R. Scott, p. 165

32. ̂  Meyer Reinhold, Classica Americana: The Greek and Roman Heritage in the United States

(Detroit, Mich: Wayne State University Press, 1984), p. 150.

33. ̂  Stephen Botein, "Cicero as Role Model for Early American Lawyers: A Case Study in

Classical 'Influence'", The Classical Journal, 73, no. 4 (Apr.-May 1978), p. 315.

34. ̂  Jean Jacques Burlamaqui, The Principles of Natural and Politic Law, trans. Thomas

Nugent (Indianapolis: The Liberty Fund, 2006; orig. 1763), bk. 1, pt. 2, ch. 5, sec. 11 (p. 172).

35. ̂  James Wilson, "Of the Law of Nature," in The Works of James Wilson, ed. Robert Green

McCloskey (Cambridge, Mass.: Harvard University Press, 1967), vol. 1, pp. 145-46

36. ̂  James M. Farrell, "John Adams's Autobiography: The Ciceronian Paradigm and the Quest

for Fame," The New England Quarterly, 62, no. 4 (Dec. 1989), 506.

37. ̂  John Adams, A Defence of the Constitutions of Government of the United States of

America, 3rd edition (Philadelphia, 1797; repr. Darmstadt, Germany: Scientia Verlag Aalen,

1979), 1: xvii-xviii

38. ̂  Jefferson's Literary Commonplace Book, trans. and ed. Douglas L. Wilson (Princeton, N.J.:

Princeton University Press, 1989), p. 159.

39. ̂  Jefferson to Amos J. Cook, 21 Jan. 1816; quoted in Jefferson's Literary Commonplace

Book, p. 161.

40. ̂  http://bible.cc/romans/2-14.htm

41. ̂  A.J. Carlyle, A History of Medieval Political Theory in the West, vol. 1, p. 83.

42. ̂  Summa Theologicae, Q. 95, A. 2.

43. ̂  Burns, "Aquinas's Two Doctrines of Natural Law."

44. ̂  "Heinrich A. Rommen, The Natural Law: A Study in Legal and Social History and

Philosophy, trans. and rev. Thomas R. Hanley (n.p.:B. Herder Book Co., 1947, Indianapolis:

Liberty Fund, 1998), pp. 100-101.

45. ̂  Samuel E. Thorne, "Translator's Introduction," in Henry de Bracton, Of the Laws and

Customs of England, trans. Samuel E. Thorne (Cambridge, Mass: Harvard University Press,

Belknap Press and The Selden Society, 1968), vol. 1, p. xxxiii.

46. ̂  Charles Howard McIlwain, Constitutionalism: Ancient and Modern, rev. ed. (Ithaca, N.Y.:

Great Seal Books, Cornell University Press, 1958; orig. 1947), pp. 71-89.

47. ̂  Charles F. Mullett, Fundamental Law and the American Revolution 1760-1776 (New York:

Octagon Books, 1966, orig. 1933), p. 33.

48. ̂  Bracton, Of the Laws and Customs of England, vol. 2, p. 22.

49. ̂  Bracton, Of the Laws and Customs of England, vol. 2, p.23

50. ̂  Imogene E. Brown, American Aristides: A Biography of George Wythe (East Brunswick,

N.J.: Associated University Presses, 1981), p. 77.

51. ̂  Harold Dexter Hazeltine, "General Preface: The Age of Littleton and Fortescue," in Sir John

Fortescue, De Laudibus Legum Anglie, ed. and trans. S. B. Chrimes (Cambridge: Cambridge

University Press, 1949), pp. l, xxviii.

52. ̂  Ellis Sandoz, "Editor's Introduction," in The Roots of Liberty: Magna Carta, Ancient

Constitution, and the Anglo-American Tradition of Rule of Law, ed. Ellis Sandoz (Columbia,

Mo.: University of Missouri Press, 1993), 7.

53. ̂  Norman Doe, Fundamental Authority in Late Medieval English Law (Cambridge:

Cambridge University Press, 1990), p. 49.

54. ̂  Sir John Fortescue, De Laudibus Legum Anglie, ed. and trans. S. B. Chrimes (Cambridge:

Cambridge University Press, 1949), p. l1.

55. ̂  Paul Vinogradoff, "Reason and Conscience in Sixteenth-Century Jurisprudence," The Law

Quarterly Review, 96 (Oct. 1908), 373-74.

56. ̂  Charles F. Mullett, Fundamental Law and the American Revolution 1760-1776 (New York:

Octagon Books, 1966, orig. 1933), 39.

57. ̂  Doctor and Student, bk. 1, ch. 5.

58. ̂  Norman Doe, Fundamental Authority in Late Medieval English Law (Cambridge:

Cambridge University Press, 1990), 112-13.

59. ̂  Norman Doe, Fundamental Authority in Late Medieval English Law(Cambridge: Cambridge

University Press, 1990), p. 113, note 23, citing Thomas Aquinas, Summa Theologica, 1a,

2ae, 90, 4.

60. ̂  Sir Edward Coke, The Selected Writings and Speeches of Sir Edward Coke, ed. Steve

Sheppard (Indianapolis: Liberty Fund, 2003), vol. 1, p. xxvii.

61. ̂  John Phillip Reid, In a Defiant Stance: The Conditions of Law in Massachusetts Bay, The

Irish Comparison, and the Coming of the American Revolution (University Park, Penn.: The

Pennsylvania State University Press, 1977), 71.

62. ̂  Thomas Jefferson wrote to James Madison in 1826 that before the Revolution, the first

volume of Coke's Institutes of the Laws of England "was the universal elementary book of

law students, and a sounder Whig never wrote, nor of profounder learning in the orthodox

doctrines of the British constitution, or in what were called English liberties." See The

Writings of Thomas Jefferson, vol. 16, p. 155.

63. ̂  John Underwood Lewis, "Sir Edward Coke (1552-1634): His Theory of 'Artificial Reason' as

a Context for Modern Basic Legal Theory," in Law, Liberty, and Parliament: Selected Essays

on the Writings of Sir Edward Coke, ed. Allen D. Boyer (Indianapolis: Liberty Fund, 2004),

pp. 108-109; citing Edward Coke, First Part of the Institutes, 319b.

64. ̂  Lewis, "Sir Edward Coke (1552-1634): His Theory of 'Artificial Reason' as a Context for

Modern Basic Legal Theory,", p. 120.

65. ̂  Sir Edward Coke, The Selected Writings and Speeches of Sir Edward Coke, ed. Steve

Sheppard (Indianapolis: Liberty Fund, 2003), vol. 1, pp. 195-97.

66. ̂  Reid, John Phillip (1986), Constitutional History of the American Revolution: The Authority

of Rights, University of Wisconsin Press, pp. 90–91

67. ̂  Clinton, Robert Lowry (1997), God and Man in the Law: The Foundations of Anglo-

American Constitutionalism, University Press of Kansas

68. ̂  Corbin, Henry, History of Islamic Philosophy, Translated by Liadain Sherrard, Philip

Sherrard, London; Kegan Paul International in association with Islamic Publications for The

Institute of Ismaili Studies, pp. 39, ISBN 0710304161

69. ̂  Roeber, A. G. (October 2001), "What the Law Requires Is Written on Their Hearts: Noachic

and Natural Law among German-Speakers in Early Modern North America", The William and

Mary Quarterly, Third Series 58 (4): 883–912 [887]

70. ̂  Hobbes, Leviathan, pt. 1, ch. 14 (p. 64)

71. ̂  Paul A. Rahe, Republics Ancient and Modern: Classical Republicanism and the American

Revolution (Chapel Hill, 1992), pp. 372-73

72. ̂  A Hobbes Dictionary: http://www.blackwellreference.com/public/tocnode?

id=g9780631192626_chunk_g978063119262612_ss1-2

73. ̂  James R. Stoner, Jr., Common Law and Liberal Theory: Coke, Hobbes, and the Origins of

American Constitutionalism (Lawrence, Kansas, 1992), 71; see also John Phillip Reid, "In the

Taught Tradition: The Meaning of Law in Massachusetts-Bay Two-Hundred Years

Ago," Suffolk University Law Review 14 (1980), 938-40.

74. ̂  Thomas Hobbes, De Cive (The Citizen), ed. Sterling P. Lamprecht (New York, 1949; orig.

1642), ch. 2, sec. 2 (p. 29).

75. ̂  Thomas Hobbes, Leviathan, or the Matter, Forme, & Power of a Common-Wealth

Ecclesiasticall and Civill (Mineola, N.Y., 2006; orig. 1651), pt. 1, ch. 14 (p. 72); p. 1, ch. 13

(pp. 21, 70).

76. ̂  Cicero, De re publica (Keyes translation), bk. 1, ch. 25, sec. 39

77. ̂  Hobbes, Leviathan, pt. 2, ch. 17 (p. 93)

78. ̂  Hobbes, Leviathan, pt. 1, ch. 15 (p. 79)(emphasis in original). See also Rahe, Republics

Ancient and Modern, p. 387.

79. ̂  Knud Haakonssen, "The Character and Obligation of Natural Law according to Richard

Cumberland," in English Philosophy in the Age of Locke, ed. M.A. Stewart (Oxford, 2000),

29.

80. ̂  Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish

Enlightenment (Cambridge, 1996), 51.

81. ̂  Jon Parkin, Science, Religion and Politics in Restoration England: Richard

Cumberland's De Legibus Naturae (Bury St. Edmunds, United Kingdom, 1999), 8.

82. ̂  Parkin, 8.

83. ̂  Richard Cumberland, A Treatise of the Laws of Nature, trans. John Maxwell (Indianapolis,

2005; orig. 1727), "Contents" (p. 237). Cumberland's treatise was originally published in Latin

in 1672. A Latin edition was published in Germany in 1684.

84. ̂  Cumberland, ch. 1, sec. 33 (p. 356)

85. ̂  Haakonssen, "The Character and Obligation of Natural Law according to Richard

Cumberland," pp. 34, 35.

86. ̂  Cumberland, ch. 5, sec. 13 (pp. 523-24).

87. ̂  Cumberland, ch. 5, sec. 12 (p. 525)

88. ̂  Cumberland, ch. 5, sec. 15 (pp. 527-28).

89. ̂  John Locke, Two Treatises of Government, Second Treatise, Chapter 13, §149

90. ̂  Pangle, The Spirit of Modern Republicanism (Chicago: University of Chicago Press, 1988),

209.

91. ̂  Rothbard, Murray, "Natural Law Versus Positive Law", The Ethics of Liberty, pp. 17

92. ̂  R. A. Gonce (Apr., 1973), "Natural Law and Ludwig von Mises' Praxeology and Economic

Science", Southern Economic Journal (Southern Economic Journal) 39 (4): 490–

507,doi:10.2307/1056701, JSTOR 1056701.

93. ̂  Gordon, David, Review of In Defense of Natural Law by Robert George, Ludwig von Mises

Institute

94. ̂  Pope John Paul II, Veritatis Splendor , n. 44; International Theological Commission,The

Search for Universal Ethics: A New Look at the Natural Law, n. 37.

95. ̂  A Biblical Case for Natural Law, by David VanDrunen. Studies in Christian Social Ethics

and Economics, no. 1. Grand Rapids: Acton Institute, 2006.

96. ̂  Pope John Paul II, Veritatis Splendor , n. 48.

97. ̂  Pope John Paul II, Veritatis Splendor , n. 54 ff.

98. ̂  International Theological Commission, The Search for Universal Ethics: A New Look at the

Natural Law, n. 46.

99. ̂  AMRUTHA. What the Pope's man found out about the Law of Nature by John Wijngaards,

Author House 2011, [1].

100. ̂  Summa Theologica I-II, Q. 94, A. 2.

101. ̂  Summa Theologica I-II, Q. 94, A. 6.

102. ̂  Prabhakar Singh, From "narcissistic" positive international law to "universal" natural

international law: the dialectics of "absentee colonialism", African Journal of International and

Comparative Law, 2008, 16(1), 56-82

[edit]References

Adams, John . 1797. A Defence of the Constitutions of Government of the

United States of America. 3rd edition. Philadelphia;

repr. Darmstadt, Germany: Scientia Verlag Aalen, 1979.

Aristotle . Nicomachean Ethics .

———.Aristotle. Rhetoric.

———. Politics.

Aquinas . Summa Theologica.

Barham, Francis. Introduction to The Political Works of Marcus Tullius Cicero.

Blackstone, William . 1765–9. Commentaries on the Laws of England.

Botein, Stephen. 1978. "Cicero as Role Model for Early American Lawyers: A

Case Study in Classical 'Influence'". The Classical Journal 73, no. 4 (Apr.-

May).

Boyer, Allen D. 2004. "Sir Edward Coke, Ciceronianus: Classical Rhetoric and

the Common Law Tradition." in Law, Liberty, and Parliament: Selected Essays

on the Writings of Sir Edward Coke, ed. Allen D. Boyer. Indianapolis: Liberty

Fund.

Burlamaqui, Jean Jacques. 1763. The Principles of Natural and Politic Law.

Trans. Thomas Nugent. Repr., Indianapolis: The Liberty Fund, 2006.

Burns, Tony. 2000. "Aquinas's Two Doctrines of Natural Law." Political

Studies 48. Pp. 929–946.

Carlyle, A.J. 1903. A History of Medieval Political Theory in the West. vol.

1. Edinburgh.

Cicero . De Legibus.

Cochrane, Charles Norris . 1957. Christianity and Classical Culture: A Study of

Thought and Action from Augustus to Augustine. Oxford: Oxford University

Press.

Corbett, R. J. 2009. "The Question of Natural Law in Aristotle." History of

Political Thought 30, no. 2 (Summer): 229–50

Corwin, Edward S. 1955. The "Higher Law" Background of American

Constitutional Law. Ithaca, N.Y.: Cornell University Press.

Edlin, Douglas E. 2006. "Judicial Review Without a Constitition." Polity 38, no.

3 (July): 345–368.

Farrell, James M. 1989. "John Adams's Autobiography: The Ciceronian

Paradigm and the Quest for Fame." The New England Quarterly 62, no. 4

(Dec. ).

Haakonssen, Knud. 1996. Natural Law and Moral Philosophy: From Grotius to

the Scottish Enlightenment. Cambridge, UK: Cambridge University Press.

———. 2000. "The Character and Obligation of Natural Law according

to Richard Cumberland." In English Philosophy in the Age of Locke, ed. M.A.

Stewart. Oxford.

Jaffa, Harry V . 1952. Thomism and Aristotelianism. Chicago: University of

Chicago Press.

Jefferson's  Literary Commonplace Book. Trans. and ed. Douglas L.

Wilson. Princeton, N.J.: Princeton University Press, 1989.

McIlwain, Charles Howard. 1932. The Growth of Political Thought in the West:

From the Greeks to the End of the Middle Ages. New York: The Macmillan

Company.

"Natural Law." International Encyclopedia of the Social Sciences. New York,

1968.

Reinhold, Meyer. 1984. Classica Americana: The Greek and Roman Heritage

in the United States. Detroit: Wayne State University Press.

Rommen, Heinrich A. 1947. The Natural Law: A Study in Legal and Social

History and Philosophy. Trans. and rev. Thomas R. Hanley. B. Herder Book

Co.; repr. Indianapolis: Liberty Fund, 1998.

Scott, William Robert. 1900. Francis Hutcheson: His Life, Teaching, and

Position in the History of Philosophy Cambridge; repr. New York: Augustus M.

Kelley, 1966.

Shellens, Max Salomon. 1959. "Aristotle on Natural Law." Natural Law

Forum 4, no. 1. Pp. 72–100.

Skinner, Quentin . 1978. The Foundations of Modern Political Thought.

Cambridge.

Wijngaards, John, AMRUTHA. What the Pope's man found out about the Law

of Nature, Author House 2011.

Wilson,James. 1967. The Works of James Wilson. Ed. Robert Green

McCloskey. Cambridge, Mass.: Harvard University Press.

[edit]External links

Lex Naturalis, Ius Naturalis: Law as Positive Reasoning and Natural

Rationality by Eric Engle, (Elias Clarke, 2010).

Stanford Encyclopedia of Philosophy :

The Natural Law Tradition in Ethics , by Mark Murphy, 2002.

Aquinas' Moral, Political, and Legal Philosophy , by John Finnis, 2005.

Natural Law Theories , by John Finnis, 2007.

Aquinas on natural law

Natural Law explained, evaluated and applied  A clear introduction to Natural

Law

Catholic Encyclopedia  "Natural Law"

Internet Encyclopedia of Philosophy Entry 'Natural Law' by Kenneth Einar

Himma

Daniel Z. Epstein  "Law's 'I'" 2007.

McElroy, Wendy  The Non-Absurdity of Natural Law, The Freeman, February

1998, Vol. 48, No. 2, pp. 108–111

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http://en.wikipedia.org/wiki/Natural_law

St. Thomas Aquinas on the Natural Law.

Aquinas bases his doctine on the natural law, as one would expect, on his understanding of God and His relation to His 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, i.e. for the good and well-being of those subject to the ruler.) Since he has elsewhere shown that God rules the world with his reason (since he is the cause of its being (cf. ST Ia 22, 1-2), 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. ( Summa Theologiae I-IIae, 91, 1)

Next, Aquinas asks whether there is in us a natural law. First, he makes a distinction: A law is not only in the reason of a ruler, but may also be in the thing that is ruled. In the case of the Eternal Law, the things of creation that are ruled by that Law have it imprinted on the them through their nature or essence. Since things act according to their nature, they derive their proper acts and ends (final cause) according to the law that is written into their nature. Everything in nature, insofar as they reflects the order

by which God directs them through their nature for their own benefit, reflects the Eternal Law in their own natures.( S.T.   I-IIae, 91, 2)

The Natural Law, as applied to the case of human beings, requires greater precision because of the fact that we have reason and free will. It is the our nature humans to act freely (i.e. to be provident for ourselves and others) by being inclined toward our proper acts and end. That is, we human beings must exercise our natural reason to discover what is best for us in order to acheive the end to which their nature inclines. Furhtermore, we must exercise our freedom, by choosing what reason determines to naturally suited to us, i.e. what is best for our nature. The natural inclination of humans to acheive their proper end through reason and free will is the natural law. Formally defined, the Natural Law is humans' participation in the Eternal Law, through reason and will. Humans actively participate in the eternal law of God (the governance of the world) by using reason in conformity with the Natural Law to discern what is good and evil.

In applying this universal notion of Natural Law to the human person, one first must decide what it is that God has ordained human nature to be inclined toward. Since each thing has a nature given it by God, and each thing has a natural end, so there is a fulfillment to human activity of living. When a person discovers by reason what the purpose of living is, he or she discover his or her natural end is. Accepting the medieval dictum "happiness is what all desire" a person is happy when he or she achieves this natural end.

Aquinas distinguishes different levels of precepts or commands that the Natural Law entails. The most universal is the command "Good is to be done and pursued and evil avoided." This applies to everything and everyone, so much so that some consider it to be more of a description or definition of what we mean by "good." For these philosophers, a thing is "good" just in case it is pursued or done by someone. Aquinas would agree with this to a certain extent; but he would say that that is a definition of an apparent good. Thus, this position of Aquinas has a certain phenomenological appeal: a person does anything and everything he or she does only because that thing at least "appears" to be good. Even when I choose something that I know is bad for myself, I nevertheless chooses it under some aspect of good, i.e. as some kind of good. I know the cake is fattening, for example, and I don't choose to eat it as fattening. I do, however, choose to eat it as tasty (which is an apparent, though not a true, good).

On the level that we share with all substances, the Natural Law commands that we preserve ourselves in being. Therefore, one of the most basic precepts of the Natural Law is to not commit suicide. (Nevertheless, suicide can, sadly, be chosen as an apparent good, e.g. as the sessation of pain.) On the level we share with all living

things, the Natural Law commands that we take care of our life, and transmit that life to the next generation. Thus, almost as basic as the preservation of our lives, the Natural Law commands us to rear and care for offspring. On the level that is most specific to humans, the fulfillment of the Natural Law consists in the exercize those activities that are unique of humans, i.e. knowledge and love, and in a state that is also natural to human persons, i.e. society. The Natural Law, thus, commands us to develop our rational and moral capacities by growing in the virtues of intellect (prudence, art, and science) and will (justice, courage, temperance). Natural law also commands those things that make for the harmonious functioning of society ("Thou shalt not kill," "Thou shalt not steal.") Human nature also shows that each of us have a destiny beyond this world, too. Man's infinite capacity to know and love shows that he is destined to know and love an infinite being, God.

All of these levels of precepts so far outlined are only the most basic. "The good is to be done and pursued and evil is to be avoided" is not very helpful for making actual choices. Therefore, Aquinas believes that one needs one's reason to be perfected by the virtues, especially prudence, in order to discover precepts of the Natural Law that are more proximate to the choices that one has to make on a day to day basis.

The Thomistic notion of Natural Law has its roots, then, in a quite basic understanding of the universe as caused and cared for by God, and the basic notion of what a law is. It is a fairly sophisticated notion by which to ground the legitimacy of human law in something more universal than the mere agreement and decree of legislators. Yet, it allows that what the Natural Law commands or allows is not perfectly obvious when one gets to the proximate level of commanding or forbidding specific acts. It grounds the notion that there are some things that are wrong, always and everywhere, i.e. "crimes against humanity," while avoiding the obvious dificulties of claiming that this is determined by any sort of human concensus. Nevertheless, it still sees the interplay of people in social and rational discourse as necessary to determine what in particular the Natural Law requires.

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