By:-Jayani de silva...
LAW MANTRATHINK BEYOND OTHERS (National Monthly Journal, I.S.S.N 2321 6417)
“NATURAL LAW” Introduction “From a purely factual standpoint the history of the natural law idea teaches one thing with the utmost clearness: the natural law is an imperishable possession of the human mind. In no period has it wholly died out”1 – Heinrich A Rommen (1955, 215) The concept ‘what is natural law’ has been revealing around for centuries provoking so many different answers. It has had very different meanings and has sometimes treated entirely different purposes. D’ Entreves states, “many of the ambiguities of the concept of natural law must be ascribed to the ambiguities of the concept of nature that underlies it”.2 Evolution and development of natural law theory may be studied under four categories. They are, the ancient period, medieval period, period of Renaissance and the Modern period. This article will focus on how the “natural law has been the chief albeit not the only way to formulate ideals and aspirations of various peoples and generations with reference to the principal moving forces of the time”3 by referring to the influence of natural law in its historical and contemporary context. Ancient period, the idea of natural law was developed by Greek philosophers around 4th century B.C. The first Greek philosopher who pointed out that destiny, order and reason were the three features of law of nature were stated by Heraclitus.4 His idea was that there is a necessary indeed between things and a definite order and rhythm of events. The next who is 1
Suri Ratnapala, Jurisprudence, Cambridge University Press, 2009, pp 119 M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence, Eighth edition, Sweet and Maxwell, 2008, pp 84 3 Assignment Question 4 530-470 BC 2
identical is Socrates5 who gained an important place among stoic philosophers. As his observation, just like natural physical law, there is natural moral law. “It is because of the ‘human insight’ that a man has the capacity to distinguish between good and bad and he is able to appreciate the moral values”. 6 Next important person in the line of natural law development is Aristotle7, because he was able to interpret in more logical way the concept of natural law. He gave his interpretation to natural law as “reason unaffected by desires”. 8 He suggested that ideals of natural law has derived from the human conscience and not from human mind, he stated because of that natural law is more important than the positive law which is an outcome of the human kind. “Aristotelian teleology teaches that all things have a potential for development specific to their nature, the achievement of which is its particular ‘good’”.9 The important factor is that Aristotle who was the pupil of Plato10 in contrast of him, “taught that human beings have an inherent potential for good, the achievement of which it is the proper function of the state to facilitate”.11 It will also give an important idea about the Greek natural law philosophy by referring to the observations that Roscoe Pound has made.12 The interpretation or the theory given by Stoic had a great impact on the contemporary Roman Legal System.13 Romans did not narrow their observation on natural law theory only to a 5
470-399 BC Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 87 7 384-322 BC 8 Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 87; “it embodies the basic principles of justice and morality which have universal validity independent of time and place. He says that man is a part of nature in two ways, firstly he is a creation of God and secondly, he possesses insight and reason which enable him to articulate his actions. But he did not categorically state that the positive law which is contrary to principles of natural law is invalid. He said, ‘so far its relation with positive law is concerned, natural law is originally different but once the positive law has been laid down, it is not different’. 9 Hilaire McCoubrey; Nigel D. White, Text book on Jurisprudence, Blackstone Press Limited, 1996, pp 67; “Thus the ‘good’ of an acorn, anything which is a hindrance thereto is ‘bad’ for it. The case of humankind is, of course, more complex, primarily by reason of the attribute of rationality which confers powers of choice which may be exercised for good or ill”. 10 C. 427-347 BC 11 Hilaire McCoubrey; Nigel D. White, Text book on Jurisprudence, Blackstone Press Limited, 1996, pp 67 12 Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 88; “(1) it was the result of the views and ideas expressed by thinkers, philosophers and orators and not of jurists or lawyers. (2) It was influenced by politically declared laws and tribal custom which was not differentiated in social order of those times. (3) Enacted laws were in fact the declared customs the validity of which was not affected by their indifference to natural law principles. (4) There was a growing consciousness that law was a product of wisdom and reason which is conferred validity”. 13 Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 88; “According to them, the entire universe is governed by ‘reason’. Man’s reason is a part of the ‘universal reason’. 6
theoretical discussion but “they used it in transforming their narrow and rigid system into a cosmopolitan one”.14 There were some jurists who believed in that Natural Law is superior and higher than positive law and suggested that if there is a conflict of both the positive law may be disregarded. But in general Roman lawyers did not bother with the conflict of ‘natural law’ and ‘positive law’.15 The next period from 12th century to mid 14th century is known as ‘Medieval age’ in the European history.16 In this period people believed that law is the greatest binding force both for those who govern and governed, the thought that institutions of slavery present the evil desires because they are not the creation of law, they believed in two facets. 17 The important personality in this period is Thomas Aquinas18 who had similar views about society as Aristotle. He defined law as “an ordinance of reason for the common good made by him who has the care of the community and promulgated”.19 His idea was that positive law is valid only
Therefore, when he lives according to reason, he lives according to ‘nature’ or lives naturally. It is the moral duty of man to subject himself to the ‘laws of nature’. The laws of nature are universal application and binding on all men.”. 14 Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 88; “Roma law was divided into three distinct divisions, namely, ‘jus civile’, jus gentium’, jus naturale’. The civil law called ‘jus civile’ was applicable only to Roma citizens and the law which governed Roman citizens as well as the foreigners was known as the jus gentium. It consisted of the universal legal principles which conformed to natural law or law of reason. Later both of these were merged to be known as jus naturale as Roman citizenship was extended to everyone except a few categories of persons”. 15 Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 89; “Cicero was a great Roma lawyer. According to his legal philosophy, which is contained in his famous work De Legibus, ‘true law is right reason in agreement with nature; it is of universal application unchanging and everlasting ….and there would not be different laws at Rome and at Athens, but one eternal and unchangeable law which will be valid for all nations at all times”. 16 Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 89; “It was dominated by the ecclesiastical doctrines which the Christian Fathers propagated for establishing the superiority of Church over the state. They used natural law theory for propagating Christianity and for establishing a new legal order and political ideology based on morals and theology. According to Christian Saints, all laws are either human or divine. Divine laws are based on nature while human laws are based on custom”. 17 Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 89; “…worldly and Godly. They are radically different from one another and there arises no question of conflict or clash between them”. 18 Hilaire McCoubrey; Nigel D. White, Text book on Jurisprudence, Blackstone Press Limited, 1996, pp 72; “Although in his great work, the Summa Theologica, St Thomas Aquinas (1225-74) refers to St Augustine with great respect, the analysis of positive law which is adavanced in it difers dramatically from the Augustinian model. The impact on Aquinas of the works of Aristotle which had been rediscovered by the 13th century is obvious. Like Aristotle, and unlike St Augustine, Aquinas considered that positive law plays a proper and ‘natural’ part in the political and social life of human beings, which is not constrained or defined by a sole concern with sin.” 19 Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 90
up to the limit where it is compatible with natural law, thus conforming to eternal law.20 The development in this period has impact in the contemporary world, with the Homosexuality debate. “The centrality of Aquinas natural law theory of morality is that each kind of thing or species has its own characteristic way of life and way of behaving that is part of its inherent nature”.21 Therefore it shows the connection of natural law together with morality even in the modern days how it exists and how the evolution of natural law has helped to think on those matters in deep and not by surface. Another important debate which derived to discuss in the modern world is right to life argument together with abortion. The idea of natural law has been the base level for those discussions, because according to St. Thomas Aquinas in the Summa (Q. 94, 1a2ae), is the first specific precept of natural law is that “the natural law related to the life principle and relates to the tendency of all beings to remain in existence”.22 The period of Renaissance is the time period where the natural law started to develop and therefore which is also named as the modern classical era. Natural law theories which were spelled out by Grotius, Locke and Rousseau revolutionized the already existing concept and
Ibid “He divided law into four categories; (i) law of God (ii) Natural Law, which is revealed through the reason of man (iii) Law of scriptures or Divine Law (iv) Human Laws. - Natural Law is a part of divine law. It is that part reveals itself in natural reason. This part is applied by human beings to govern their affairs and relations. This human law or ‘positive law’ therefore must remain within the limits of that of which it is a part. Positive law is valid only to the extent to which it is compatible with ‘natural law’ and thus, inconformity with ‘eternal law’. According to him, Church is the authoritative interpreter of the law in scriptures. Therefore, it has the authority to give verdict upon the goodness of positive law also”. 21 Lanre-AbassBolatito, ‘The Natural Law Theory of Morality and the Homosexuality Debate in African Culture’, pp 04, http://www.google.lk/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ved=0CC0QFjAA&url=http%3A %2F%2Fwww.ajol.info%2Findex.php%2Fog%2Farticle%2Fdownload%2F84685%2F74673&ei=JykZUcjQOs7N rQenq4GwAw&usg=AFQjCNE_BviWskXCrxd5gCVF0bYvR65E1Q&sig2=tjzBgEkyMYckGrxTBrsteQ , accessed on 10.02.2013 22 Howard Kainz, ‘Natural Law and Abortion’, January 06 th 2010, http://www.crisismagazine.com/2010/naturallaw-and-abortion ; accessed on 11.02.2013; “. As applied to humans, it is the “law of self-preservation” for each individual — the instinctive tendency we all have to nurture our existence and maintain it at all costs, unless some supervening rationale demotes this tendency to secondary importance. The corollary duty for us who observe this law operative in some other individual is to respect that tendency, and do nothing to impede it, as long as that individual does not forfeit his rights in some way (e.g., by unjust, lethal aggression). Aquinas then goes on to enunciate the second specific precept of the natural law, common to humans as well as other animals — namely, to nurture and make provision for their offspring. As applied to humans, who require immensely longer care and education than other animals, the requirements are proportionally more stringent. This law is associated with the instinctive desire of persons to have offspring and their willingness to invest immense energy in children’s upbringing and well-being — even to the point of personal sacrifice, and even to sacrifice of life”.
held that ‘social contract’ was the basis of society. Hugo Grotius23 built his legal concept on ‘social contract’ 24. In his view it is the “duty of sovereign to safeguard the citizens because it was given power only for that purpose”.25 Grotius who mainly concentrated on the political orders stability laid the foundations of international law too. There are many incidents that have derived from international law concepts which have highlighted the importance of torture26, fundamental rights of citizens27 and even applicability of international law when the domestic law is silent28. All those exists today in the modern world is due to the development of international law which arisen from Natural Law is significant and valuable at the same time. The impact to the modern world developments which derived from the concept ‘social contract’ has been immense, because concepts such as separation of power, parliament sovereignty, limited powers and democracy concept’s basis was this social contract theory. Grotius also mentioned few principles which he took away from the ‘social contract’ theory. 29 Hobbes30 too continues from social contract theory. He laid his theory on natural right of self-
1583-1645 M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence, Eighth edition, Sweet and Maxwell, 2008, pp 105; “The social contract is a wholly formal and analytical construct that can be used as a means of presenting conflicting political ideals. In Hobbes it is used in defence of absolutism: in Locke in support of limited constitutionalism. Though explicitly rejected by Hume and Bentham, many liberal theorists continue to emphasis it either in terms of consent theory or, as in Rawls’s theory of justice, as something close to traditional notions of social contract”. 25 Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 91; “The sovereign is bound by natural law. The law of nature is discoverable by man’s reason and this reason is selfsupporting reason of man. When the question arises should the Ruler be disobeyed if he does not act in conformity with the natural law? Grotius answers this question in affirmative and says that howsoever bad the ruler may be, it is the duty of the subject to obey him”. 26 Filartiga v Pena-Irala, 630 F.2d.876 (1980), which the case was regarding a USA court decision, which held that torture, is a crime under the International Law concepts. 27 Oppenheimer v Cattermole (1976) AC 249, held that laws that made by Hitler to take away soldiers citizen rights violates human rights, and therefore there cannot be laws in that form. 24
Sepala Ekanayake v AG, C.A. 132/84. Decided on August 7th, 1986, where justice needs to take place that even though the domestic law is silent on that, connecting it to international law concepts that justice could be rewarded and the accuse can be punished was the importance of this case. 29
Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 91; “ (i) Governments are equal (ii) Governments in their foreign relations are perfectly free (iii) and promises between the Governments are of binding nature because to fulfill a promise is a principle of natural law”. 30 Hilaire McCoubrey; Nigel D. White, Text book on Jurisprudence, Blackstone Press Limited, 1996, pp 77; “Thomas Hobbes (1588-1679) lived during the troubled period in England of the reign of Charles I, the Civil War, the Comwellian Commonwealth and, later Restoration. His principal work, Leviathan, was published in 1651 and, hardly surprisingly, reflected a concern with the maintenance of peaceable order and the avoidance of civil collapse”.
preservation of person and property.31 He is a jurist who supported the absolute authority of the sovereign. It is identical in his opinion which he has stated that “Governments without sword are but words, and of no strength to secure a man at all”. 32 Later as time moved on it made individuals to demand more freedom where new theory of natural law was needed and John Locke33 gave an interpretation. According to him the use of Government and law is to uphold and protect the natural rights. So far the article has discussed on it is evident of the development of natural law and how jurists have intended to give interpretation to this concept in different ways. Rousseau
stated that ‘social contract’ is not a historical as stated by
Hobbes and Locke but it is a hypothetical incident.35 The development of this social contract theory could be related to the contemporary world as below. The basic level of social contract theory is exercised is through elections of some people to for the government.36 Most of the countries a constitution exists and it is to reflect the will of the citizens and then to abide the provisions of that so citizens will live accordingly respecting the procedure and the community. Therefore “The jurisprudence behind social contract theory is to promote peace and harmony and as that it is the bed rock of democratic societies”. Rousseau37 was towards
Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 91; “Hobbes says that prior to the state of nature was ‘solitary, poor, nasty, brutish and short’. For getting selfprotection and avoiding misery and pain, man voluntarily entered into a contract and surrendered their freedom to some mightiest authority that could protect their lives and property”. 32 Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 91 33 Hilaire McCoubrey; Nigel D. White, Text book on Jurisprudence, Blackstone Press Limited, 1996, pp 79; “John Locke (1632-1704) lived a generation on and in circumstances very different from those which had troubled Hobbes. Locke’s writings provided the theoretical accounting for the 1688/89 ‘Glorious Revolution’ in which James II was overthrown and replaced, jointly, by Wiilam III and Mary II, broadly upon terms set by Parliament, or more technically, a body acting as Parliament”. 34 1712-1778 35 Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 92; “Before this contract, man was happy and free and there was equality among them. By this ‘social contract’ men united for the preservation of their rights of freedom and equality, for this they surrendered their rights not to a single individual sovereign but to the ‘general will’ of the community”. 36 Daudi Mwita Nyamaka, ‘Social Contract Theory of John Locke in Contemporary World’, pp 12, http://works.bepress.com/cgi/viewcontent.cgi?article=1009&context=dmnyamaka , accessed on 10.02.2013, “The major problem facing many countries is non adherence by the governments to the social contract principles as propounded by John Locke. The said principles require the government and the people to exist under pactum unionis and pactum subjectionis with due respect and adherence tothe duties and rights arising there from”. 37 M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence, Eighth edition, Sweet and Maxwell, 2008, pp 111; “As Barker has noted: Rousseau is a Januslike figure in the history of natural law. He turns to it and belongs to it; he turns away from it and belongs elsewhere. Rousseau’s concepton of a state of nature is closer to Locke’s than Hobbes’s though without Locke’s emphasis on the sanctity of property”.
people’s sovereignty where as Locke was stressing on the individual.38 In the 18th century the natural law and concept of ‘social contract’ was supported by Kant and Fichte. Immanuel Kant39 recognized natural rights because it was necessary for the freedom of individual than acquired rights.40 His view was that “an action is right only if it co-exists with each and every man’s free will according to the universal law”.41 Along with these in the modern world the argument that capital punishment42 is deterrence to crime is still need to be proven satisfactorily and also in any case the use of human beings as means of social end is a question still need to discuss along with ethics. Especially when some of those executed are innocent people. This debate too has been arguable together with the Natural Law concepts. In the 19th century it was a period where natural law had to suffer. Because jurists such as David Hume rejected the concept of natural law stating that it was “vague, obscure and contrary to empirical approach to law”.43 Auguste Comte stated that natural law is “false, non scientific and based on super natural beliefs”. 44 Apart from these attacks historical researchers started to state that ‘social contract’ was myth. In this stage it became very hard for the natural
Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 92; Rousseau’s “natural theory is confined to the freedom and liberty of the individual. According to him, state, law, sovereignty, general will are interchangeable terms”. 39 1724-1804 40 Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 93; “He propounded his famous theory of Categorical Imperative in his book entitled Critique of Pure Reason”. His theory embodied two principles; “(1) It expects a man to act in such a way that he is guided by dictates of his own conscience. Thus, it is nothing more than a human right of self determination. (2) The second principle expounded by Kant was the doctrine of ‘autonomy of the will’ which means an action emanating from reason and does not mean the freedom to do as one pleases”. 4141 Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 93 42 Kansas University, ‘Issues in Ethics: A Natural Law Approach’, pp 01, http://www.kstate.edu/assessment/resources/ethics/ethdisc.pdf ; accessed on 10.02.2013; “In natural law tradition, to go against the natural law is to act against the universal human good or to diminish authentic human existence. Good is defined as that which contributes to human fulfillment. It is generally accepted that there are four basic goods or needs that are required for our fulfillment as human persons -- life, truth, society, and reproduction. Life is considered the fundamental good because all other goods or human rights depend on its protection. Thus, human life can be ethically taken only when another human life or lives are mortally threatened. The principle of self defense has been expanded to include entire nations within the framework of a just war theory. The issue in the natural law tradition is whether or not those who have committed capital crimes and are now in prison present enough of a threat to the lives of others to permit their execution under an expanded principle of self defense. Revenge is not an acceptable reason, even in just-war theory. Even if it could be successfully argued in natural law tradition that those guilty of capital crimes, by that fact, forfeit their lives (this is doubtful), there is justifiable doubt about the actual guilt of those convicted, evidenced by the rising number of death row inmates who have been proven innocent on review of their convictions”. 43 Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 93 44 Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 93
law theories to survive. But towards the end of the 19th century due to some reasons45 revival of Natural Law theories took place. Dr. Allen has stated that this new natural law theory is “the new natural law is value loaded, value oriented and value conscious and its relativistic and not absolute, changing and varying and not permanent and everlasting character”.46 Rudolf Stammler47 in his opinion law of nature means ‘just law’ which harmonizes the purposes in the society.48 Another professor who has made an immense contribution towards natural law theory is Professor Rawls who talks about two basic principles49 which emphasis to ensure maximum benefit to the community as a whole. Fuller 50 is one of the leading supporters of the modern natural law. In his opinion the concepts such as law and morality are co-related. He denied the separation between “is” and “ought” and said that good order is law which corresponds to justice or morality”. 51 According to Fuller, “law is a purposive system, the purpose being ‘to subject human conduct to the control and guidance of legal rules”. 52 He has also stated 8 requirements53 which he thinks which in indeed to make the law really effective in every legal system. Unlike Fuller’s theory which states about procedural natural law, John
Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 93-94; “(1) A reaction against 19th century legal theories appeared because they had given more importance to ‘positive law’. (2) It was realized that abstract thinking or a priori assumptions were not completely futile. The changed social conditions had their own problems which were not solved by the pure positivist approach”. 46 Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 94 47 1856-1938 48 Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 94; “According to Stammler, ‘all positive law is an attempt at just law’. Justice is a ‘harmony’ of wills or purposes within the framework of the social life. The harmony of wills or purposes varies according to time and place. According to him, the fundamental principles necessary for a just law are two (a) principle of respect, and (b) the principle of community participation”. 49 Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 95; “……first is equality of right to securing generalized wants including basic liberties, opportunities, power and minimum means of substance and social and economic inequalities should be arranged so as to ensure maximum benefit to the community as a whole”. 50 1902-1978 51 Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 95 52 ibid 53 ibid “ (a) There should be definite rules, (b) These rules must be well publicized, © There should be no abuse of retrospective legislation, (d) The rules must be easily understandable (e) The rules must be practicable and not require a person to do something which is beyond his power or capacity (f) The rules must not be contradictory with any other existing rule (g) The rules should not be subjected to frequent change and (h) There must be congruence between the rules promulgated and their actual administration”
Finnis advanced the theory54 of ‘natural rights’ which unequivocally falls into the category of ‘naturalist’. It relates very closely to the analysis of St Thomas Aquinas but on other hand refers to an approach which clearly talks about to the modern period. “This is a highly significant contribution to the modern naturalist revival, not as an abolition or denial of other schools of jurisprudence but rather as a redress of an imbalance which existed in conventional jurisprudence from the middle of the 19th century to the later part of the 201th century”. 55 Finnis sets out to describe Natural Law and Natural Rights what he considers to be the basic: values of human existence and principles of all practical reasoning too.56 Finnis has also referred in his text to certain “exceptionalness or an absolute human claim rights”57 which includes many in detail. With the explanations of Natural Law jurists, it is important to see the idea that positivists had behind Natural Law concepts too. Significantly, regarding H.L.A. Hart and the ‘minimum content theory of natural law’. Hart as a legal positivist “accepts that there is a ‘core of good sense’ within natural law doctrines”.58 Many people believe that difference of him is that he
Hilaire McCoubrey; Nigel D. White, Text book on Jurisprudence, Blackstone Press Limited, 1996, pp 94-95; “Finnis’s core concern with theory of rights sets classical naturalist concern with the moral or ethical and purposive nature of law into a modern discourse of ‘rights’ which is firmly rooted in fundamental preoccupations of the mdern legal and political world. Secondly, Finnis’s theory moves away from the still essentially formal concerns of post positivist analyses, such as that of Fuller, and adds a modern naturalist voice to jurisprudential debate. This serves the interest of a diversification of the range of analyses which may be seen as a prerequisite for the adequate address of the broad issues arising from the operation of law in the modern world”. 55 Hilaire McCoubrey; Nigel D. White, Text book on Jurisprudence, Blackstone Press Limited, 1996, pp 102 56 Peter Halstead, Key Facts – Jurisprudence, British Library, 2010, pp 38; “He does this by considering - How such values and principles enter into any consideration of good reasons for action, and any full description of human conduct and the sense in which such basic values are what he calls self-evident”. 57 L.B. Curzon, Lecture Notes – Jurisprudence, Cavendish Publishing Limited, 1995, pp 52; “They include: the right of an individual not to have his life taken directly ‘as a means to any further end’, the right ‘not to be positively lied to’ in situations in which one expects reasonable factual information, the right not to be condemned on charges which are known to be false, the right not to be deprived of procreative capacities, the right to be considered in any assessment of what is required in the name of ‘the common good’ of society”. 58 Howard Davies, David Holdcroft, Jurisprudence: Text and Commentary, Butterworths, London, 1991, pp 179; “For it is a truth of some importance that for the adequate description not only of the law but of many other social institutions, a place must be reserved, besides definitions and ordinary statements of fact, for a third category of statements: those the truth of which is contingent on human beings and the world they live in retaining the salient characteristics which they have”.
interprets it in a different way; also some believe such as prohibition of murder etc. were commonalties which existed too.59
Few incidents where we see the Natural Law application in the modern world are; firstly that whether it is ethical to authorize a retaliatory strike and as an example whether U.SA. can destroy Iraq. Natural Law analysis has discussed about the inviolable right of individual. But in a conflict situation, natural law makes a distinction between life of an unjust aggressor and an innocent human being. 60 All considerations of modern warfare are understandably quite complex. In this case, the natural law tradition could offer considerations from the just-war theory which include when war is justified and what acts are moral in a just-war situation.61 Secondly, the debate on human rights which often arise in modern days is whether to look how far we can go in depth in human rights. “The right place for human rights is that they must be subordinated to Natural Law. They must be founded not on cheap populism, but on a sound
Andrew, ‘Hart’s Criticism on Natural Law’, http://afterthelaw.blogspot.com/2009/10/harts-criticism-of-naturallaw.html, accessed on 11.02.2013, “The Natural Law theorists understand such similarities as deriving from a “higher law” which is universal, innate, and cognitively accessible to humans. Incorporationists such as Hart, on the other hand, recognize this as a mere coincidence of social values. Whether or not these social values are also referred to as “morals” is not an issue. The reason Hart allows for moral criticisms of the law is because describing a law as “immoral” is equivalent to calling it “a contradiction to the accepted social values of a given society.” He is unconcerned with which term one uses, but his understanding of the limitations of moral concepts in the sense Natural Law Theory uses it requires that the law not be sheltered from all other considerations. This openness to moral criticism also reinforces his separation of “law as it is and law as it ought to be” which he claims Natural Law theorists fuse together. Despite allowing for moral criticism of the law, Hart does not imply that a law that can be morally criticized is not a law at all. Among others, these distinctions lead to my conclusion that Incorporationism’s main critique of Natural Law is that it is simply too insular. It does not account for the variety of moral perceptions in the world and is stubborn to the existence of any law not pertaining to these unidentified moral values. Instead, Natural Law account for its inadequacies by broadening its perception of the law”. 60 Kansas University, ‘Issues in Ethics: A Natural Law Approach’, pp 01, http://www.kstate.edu/assessment/resources/ethics/ethdisc.pdf ; accessed on 10.02.2013; “When innocent life is attacked, the person and/or the community has a right to self defense, e.g.the just-war doctrine. Since innocent life is inviolable, unjust aggressors can be resisted by means that include, as a last resort, lethal measures. However, not just any lethal measures can be accepted especially in conflict between nations with modern weapons of mass destruction”. 61 Kansas University, ‘Issues in Ethics: A Natural Law Approach’ , pp 01, http://www.kstate.edu/assessment/resources/ethics/ethdisc.pdf ; accessed on 10.02.2013; “ 1) Some response is justified to defend against other attacks, 2) no lethal response can be designed out of simple revenge - you kill our innocents, we will kill yours, 3) the response must be judged to be a last resort among other options - limited conventional warfare as opposed to a nuclear response, 4) the goals to be accomplished are sufficiently important to outweigh the harms that can reasonably be foreseen, 5) consideration of the principle of discrimination which forbids the direct killing of the innocent noncombatants e.g., the bombing of civilian population centers, 6) consideration of the principle of proportionality that forbids acts within warfare that would inflict unnecessary or excessive harm on civilians and/or military personnel. Finally, if you decide to bomb the cities of Iraq, what have you become in the process? Have you perhaps become just like the enemy? In other words, does your act of lethal retaliation diminish your own authentic humanity by making you a slayer of the innocent without sufficient reason?”
anthropology, in which man is seen as capable of making reasonable and moral decisions, and which therefore holds him responsible for his actions. They must be based on reality rather than on imagination”.62 Thirdly, the impeachment saga that has taken place in Sri Lanka is also identical. It is shown with this debate on the impeachment to the chief justice, identifying the wide development of Natural Law by, “this notion of natural justice is derived from the Natural Law, meaning that justice is fused with morality and responsibility”. 63 Reflecting the constitution from the perspective of natural justice, “the courts appear to be far better suited to interpret the Constitution than elected representatives because they are organized as the most appropriate institutions to achieve equality, generality, and morality”. 64
After the changes of the development of natural law, at the same time it is important to see the criticism of Natural Law theory too. In my opinion the main critic against the natural law theory is that it complicates the nature of law and morality with science, secondly as an example ‘ought to be’ may not be used to be away to conform needs of the society, thirdly even though legal disputes could be settled by courts – disputes relating to morality and law of nature won’t be able to subject to judicial eye, fourthly rules of morality absorbed in natural law are not amendable but the legal rules need to change with the modern needs of the changing worlds and finally though law and morality seems to conflict with each other to decide if any law is just or unjust it will need to be subject to the principles of morality too. Therefore I have explained in this report the main four periods that Natural Law has been
Jakob Cornides, ‘Universal Values or Particular Agendas – Can We Still Speak Credibly of "Human Rights"?’ , December 2012, pp 21, http://works.bepress.com/cgi/viewcontent.cgi?article=1043&context=jakob_cornides, accessed on 10.02.2013 63 Jude Fernando, ‘Judiciary at war against the Constitution’, January 09th 2013, http://www.colombotelegraph.com/index.php/part-ii-judiciary-at-war-against-the-constitution/ , accessed on 11.02.2013; “This is different from justice’s narrow definition found in literature sympathetic to legal positivism, where it is defined simply in terms of two principles that protects individuals against arbitrary exercise of power by ensuring fair play.: (1) Audi alteram partem: no accused person, or person directly affected by a decision shall be condemned unless given full chance to prepare and submit his or her case and rebuttal to the opposing party’s arguments; (2) Nemo judex in causa sua: no decision is valid if it was influenced by any financial consideration or other interest or bias of the decision maker”. 64 Jude Fernando, ‘Impeachment Misadventure and the Advent of the Spring in Sri Lanka’, January 08th 2013, http://groundviews.org/2013/01/08/impeachment-misadventure-and-the-advent-of-the-spring-in-sri-lanka/ , accessed on 10.02.2013
developed, analyzing the importance of it. Next the report has concentrated to show how these changes have helped to develop the contemporary world incidents together with Natural Law concepts. There by the conclusion that comes to at the end of the analysis is that Natural Law is immensely significant that it has been developing throughout many eras.
By:- Jayani De Silva LL.B. (Hons) (Colombo)