Natural Law Theory Approach

Natural Law Theory Approach

A Written Report

College of Law University of Eastern Philippines University Town, Northern Samar

In Partial Fulfillment Of the Requirement for the Course Human Rights Law

June 2014

ABSTRACT In the context of our predecessors on ancient philosophy, natural law is a universal rule based on reason alone. That is higher than human positive law. Under natural law theory, reason establishes a universal precept that identifies good or bad even if there no same principles established in civil law. The term is defined as a philosophical system of legal and moral

principles

purportedly

deriving

from

a

universalized

conception of human nature or divine justice rather than from legislative or judicial action. (Black’s Law Dictionary 9th ed.)

Introduction "Natural law, as it is revived today, seeks to organize the ideal element in law, to furnish a critique of old received ideals and give a basis for formulating new ones, and to yield a reasoned

canon

of

values

and

a

technique

of

applying

it.

I

should prefer to call it philosophical jurisprudence. But one can well sympathize with those who would salvage the good will of the old name as an asset of the science of law." (Roscoe Pound, The Formative Era of American Law (1938). To

begin

with,

the

cradle

of

natural

law

speaks

of

the

divine order of the progenitor. It is anchored on the instinct of man and his profound virtue which is pity. Man is naturally reasonable and his inclination to do well is the core of natural law.

Importance of natural law The

crucial

part

of

natural

law

is

natural

inclination,

rational inclination to obey the divine. Without natural law, faith cannot be cultivated into a general mandate of conscience. Definition Natural law is a system of law that is determined by nature, and

so

is

universal.

(Strauss

Leo,

1968

“Natural

Law”

International Encyclopedia of Social Sciences, Macmillan). The classic definition of the term is that natural law refers to the use of reason to analyze human nature both social and personal and deduce binding rules of moral behavior from it. (Natural Law,

Columbia

Electronic

Encyclopedia,

6th

ed.

Columbia

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

theory,

interpretation

natural of

law

positive

is

law.

considered To

understand

as

basis

the

of

concept,

philosophers had theorized many definitions and explanations of natural law. First one to attempt is Plato. According to him, we live

in

a

natural

universe.

He

believed

that

there

is

even

higher truth than justice that only a very few will come to know.

This

higher

truth

Plato

calls

the

Good,

which

is

the

cosmic principle of order that unites both physical and ethical principles in a grand synthesis. It is that which gives the

whole universe and everything in it, a meaning and purpose.1 However, to explain the Good is near to quite impossible because it cannot be grasped simply in logical terms. For Plato, knowing the Good is to have a supernatural insight into the rational structure

of

the

whole

universe.

There

is

an

element

of

mysticism in his theory, but this in no way contradicts his emphasis upon rational knowledge. The dialectical acquisition of knowledge is the necessary condition of grasping the Good.2 History The sophists The stoics Greek philosophy Contemporary times Natural law and natural rights What follow natural law are natural rights. Natural law may be defined as the divine inspiration in man of the sense of justice, fairness, and righteousness, not by divine revelation or

formal

promulgation,

but

by

internal

dictates

of

reason

alone.3 The binding force of natural law grasp all men at all times,

in

every

individual,

there

is

always

a

fundamental

1

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

3

Ibid, p. 35.

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

understanding of right and wrong, based on the basic standard of the criterion that is good and evil. In other words, there is an innate nature in every man known in his heart and conscience by the

dictates

of

his

moral

nature

and

is

not

a

product

of

theorizing which is the good or evil. Thus, we know that killing for the sake of killing is bad or evil because it is contrary to what we believe is just, fair or righteous. When we speak of this inward instinct of justice, fairness, and righteousness in man as divinely inspired by the dictates of his higher nature, we are talking about natural law or the law of nature.4 As compared to divine law, there is difference. Divine law is the law of religious faith made known to man by means of direct revelation. On the other hand, natural law is impressed in man as the core of his higher self at the very moment of being or even before that.5 Natural rights are those rights possessed by every citizen without being granted by the State for they are given to man by God as a human being created to His image so that he may live a happy life.6 The examples of this are the right to life, liberty, and property. According to Justice William Douglas (U.S. Supreme Court) explains natural rights in these words: “Man gets his 4

Ibid., p. 3

5

Ibid.

6

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

rights from the creator. They come to him because of the divine spark in every human being.” Thus deep within his conscience, man discovers a law he has not laid upon himself but inscribed by

God

and

which

he

must

obey.

Even

natural

law,

however,

imposes limitations against the misuse or abuses in the exercise of

ones

right.

Every

right

involves

a

corresponding

responsibility to others and to society.7 Natural law and human rights Natural law and human rights are closely connected to each other as interdependent forces. A question is asked commonly, what are human rights? Human rights are commonly understood as being those rights which are inherent to human being. The concept of human rights acknowledges that every single human being is entitled to enjoy his or her human rights without distinction as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Human rights are legally guaranteed by human rights law, protecting individuals and

groups

against

actions

which

interfere

with

fundamental

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

international

law,

bodies

of

principles

and

other

sources of law. Human rights law places an obligation on States 7

8

Ibid. p. 117

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

to act in a particular way and prohibits States from engaging in specified activities. However, the law does not establish human rights. Human rights are inherent entitlements which come to every person as a consequence of being human. Treaties and other sources of law generally serve to protect formally the rights of individuals and groups against actions or abandonment of actions by Governments which interfere with the enjoyment of their human rights.9 The following are some of the most important characteristics of human rights: 1. human rights are founded on respect for the dignity and worth of each person; 2. human rights are universal, meaning that they are applied equally and without discrimination to all people; 3. human rights are inalienable, in that no one can have his or

her

human

situations

–

rights for

taken

example,

away the

other

right

than

to

in

liberty

specific can

be

restricted if a person is found guilty of a crime by a court of law; 4. Human

rights

are

indivisible,

interrelated

and

interdependent, for the reason that it is insufficient to respect some human rights and not others. In practice, the violation of one right will often affect the respect of 9

Ibid. p. 3

several other rights. All human rights should therefore be seen

as

having

equal

importance

and

of

being

equally

essential to respect for the dignity and worth of every person.10

Aristotle’s Theory of Natural Law Aristotle did affirm the existence of a “law of nature,” but he was admired by and influenced the American Founders more for his related views on republican government and the rule of law. Aristotle was regularly included by the Founders in their lists of reliable and authoritative political philosophers. When asked once

what

was

the

philosophy

underlying

the

Declaration

of

Independence, Jefferson replied that: “All its authority rests on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke and Sidney. John Adams similarly wrote that the principles of the American Revolution “are the principles of Aristotle and Plato, of Livy and Cicero, and Sidney, Harrington, and Locke; the principles of nature and eternal reason; the principles on which the whole government over us now stands.”11

10

Ibid.

11

Adams, Novanglus, No. 1.

The

following

are

acknowledged

doctrines

which

Aristotle

devised himself: 1. government should govern for the good of the people, not for the good of those in power; 2. there

is

a

natural

aristocracy,

and

skilled

statecraft

arranges things so that this element acquires authority, or,

failing

that,

blends

democratic

and

oligarchic

influences in society to approximate to that outcome; 3. mixed regimes are better than pure regimes, because they are more stable; 4. the best form of government in nearly all circumstances involves the balancing of aspects of all three pure regimes (kingship, aristocracy, and timocracy); 5. A pure democracy can easily turn into a tyranny of the majority.

For

Aristotle

there

is

a

very

close

connection

between

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

virtue

of

justice

may

be

alternatively

described

as

“lawfulness.”12 The opposition commonly drawn between “natural justice” (and “natural right”) and “natural law” is therefore unwarranted

in

the

case

of

Aristotle.13

The

reason

12

Nicomachean Ethics, V.1

13

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

is

not

difficult to see: particular judgments about what is equal or just

immediately

imply

corresponding

generalizations,

since

there would be no reason why similar cases should not be decided in the same way. That this allotment should be 80/20 implies that

similar

cases

should

have

similar

allotments.

Thus,

on

Aristotelian terms, a law is “by nature” if the equality which it aims to ensure is such that it is justified by appeal to something other than an agreement or decision. Similarly a law would be “contrary to nature” if it forbade equalities which a law

which

was

“by

nature”

would

aim

commanded corresponding inequalities.

to

effect,

or

if

it

By a “law of nature,”

then, Aristotle does not mean statutes, or a system of rules, discernible by intellectual perception; rather, what he means are

recurring

equalities

or

inequalities

in

the

nature

of

things, which, he considers, serve to justify general claims involving

the

distribution

of

things

and

actions.

Three

important things should be noted about a “law of nature” in this sense: First,

Aristotle

thinks

that

a

“law

of

nature”

may

appropriately be invoked as grounds for disobeying a human law which contravenes it, since the “law of nature” has the higher authority. This is clear from his favorable reference to the Antigone of Sophocles and his willingness to contemplate jury

nullification in the Rhetoric.14 It is unclear from the text on what grounds Aristotle held that a law of nature has the higher authority; but we may speculate that his view here is connected with his views expressed elsewhere that the ultimate causes of nature are divine, and that human artifice should assist or complete nature rather than subvert it.15 Second, it may reasonably be wondered why, if something is a “law of nature,” it is not recognized and followed universally by

human

beings.

acknowledged

by

In

all

fact

no

cultures

prescription

and

times,

not

seems

to

even

“Do

be not

murder.” The puzzling language of the Nicomachean Ethics, which defines

nature

“influence”

in

as

something

all

times

that

and

has

places,

the

same

suggests

“force”

how

or

Aristotle

would deal with this problem.16 His view seems to be that nature, for its part, invariably suggests to us the appropriateness of framing

certain

precepts

(viz.

concerning

what

is

“just

by

nature”), but we, for our part, need to have the appropriate sensitivity to this influence. For example, on this view we frame a precept of the form, “Do not murder,” and say that this is

14 15

16

just

by

nature,

in

view

of

http://www.nlnrac.org/classical/aristotle Ibid. , Ibid.,

our

being

sensitive

to

the

“nearness and dearness” of each human being to every other.17 This nearness and dearness is an objective reality about our similarity and potential reciprocal relationships with members of the same kind; yet we may fail to be sensitive to this reality. We do not, of course, merely intellectually perceive that human beings are near and dear to one another; rather, we sense or feel these ourselves, which is to say that we are inclined to regard another’s good as our own good, and we are prepared to act to protect and promote it. Yet it can happen, in some

cultures

suppressed

or

or

circumstances,

deformed,

and

in

that

those

our

sensitivity

is

conditions

the

unusual

precept “Do not murder” will either not be articulated by us or will fail to have force. In such cases it is not nature that has changed, or the law of nature; nature remains the same, but we have failed to respond adequately to it, through a failure of sensitivity. Third, it seems to be Aristotle’s view that a “law of nature” or what is “just by nature” never has an effect on our actions without some admixture of the conventional and the arbitrary. No precept is purely natural; all precepts are framed with a view to

an

application

something example 17

Ibid.,

is

to

arbitrary of

the

particular will

be

difference

circumstances,

required. between

and

for

Aristotle’s wholesale

and

this

helpful retail

measures: in all times and places, people use larger measures in wholesale markets than in retail; they do this in view of the nature of the case—the wholesale market involves a higher-level distribution

of

goods

for

sale,

and

therefore

it

calls

for

larger measures—and in this sense “by nature wholesale measures are larger than retail;” nonetheless, which measures to use at each

level

is

purely

a

matter

of

convention

like

kilograms

rather than pounds, and grams rather than ounces. The Law of Nature is so unalterable, that God himself cannot change it. For the Power of God be infinite, yet we may say, that there are some Things to which this infinite Power does not extend, because they cannot be expressed by Propositions that contain any Sense, but manifestly imply a Contradiction. For Instance then, as God himself cannot effect, that twice two should

not

be

four;

so

neither

can

he,

that

what

is

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

Some Things are no sooner mentioned than we discover

Depravity in them. For as the Being and Essence of Things after they

exist,

depend

not

upon

any

other,

so

neither

do

the

Properties which necessarily follow that being and Essence. Now such is the Evil of some Actions, compared with a Nature guided

by right Reason. Therefore God suffers himself to be judged of according to this Rule.18 Stoic Natural law The Stoics claim the order of the universe is fundamentally rational.

Human

rationality,

therefore,

is

a

person’s

innate

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

the

universe.

Violence

and

vice

are

consequences

of

irrationality and not being in harmony with universal laws.19 They

viewed

Natural

law,

as

a

ruling

principle

based

on

universal reason. They believed that this inherent rationality in

the

universe

was

created

by

God,

whose

law

applied

universally and equally.20 According to Marcus Aurelius, emperor of Rome and one of the greatest of the later Roman stoics, “the rational animal”

animal Human

is

consequently

beings,

also

therefore,

can

a

political

acquire

and

virtue

social only

as

citizens of the state and members of society, not in withdrawal from

their

public

duties

and

obligations

to

their

fellow

citizens. These obligations, the stoics argued, are known by all human beings on the basis of reason alone. They are therefore, what

the

obligations

stoics we

to

called one

natural

another

that

laws, exist

that by

is,

nature,

18

ethical not

by

Hugo Grotius, The Rights of War and Peace, Vol. 1, Chapter I: “What War is, and what Right is. 19 http://sevenpillarsinstitute.org/morality-101/agency-theory/natural-law 20

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

convention, and are therefore universally valid. They are known and apply in all societies the world over.21 Cicero Cicero (106-43 BCE) is an influential Roman jurist who was heavily influenced by the Stoics in his understanding of natural law,

which

he

described

by

writing

that

"True

law

is

right

reason in agreement with nature." It is universal ("There will not be different laws at Rome and at Athens or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times"), divinely-inspired, and divinely-enforced. Law is not necessarily just, but justice is inherent in nature.22 Hobbes Thomas Hobbes had a different notion as regards natural law. Since he is considered as the first great modern theorist, his viewpoint differs from the classics. Hobbes was born during war so his understanding of natural law is of negative approach. He rejects the teleological view of human nature as a false and dangerous

illusion.

Instead,

he

sees

human

nature

as

the

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

no

happiness

or

perfection.

The

rejection

of

end-

directed motion underlies Hobbes’s revolution in thinking from 21

Brian R. Nelson: Western Political Thought: From Socrates to the Age of Ideology, 2nd Edition (New Jersey: Prentice Hall), pp. 74-75 22

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

classical

natural

law,

and

its

perfectionist

principle

of

virtue, to modern natural rights, and its minimalist principle of self-preservation.23 St. Thomas Aquinas Aquinas bases his doctrine on the natural law, as one would expect, on his understanding of God and His relation to His creation. He grounds his theory of natural law in the notion of an eternal law in God. In asking whether there is an eternal law, he begins by stating a general definition of all law. Law is a dictate of reason from the ruler for the community he rules. This dictate of reason is first and foremost within the reason or intellect of the ruler. It is the idea of what should be

done

to

insure

the

well-ordered

functioning

of

whatever

community the ruler has care for. It is a fundamental tenet of Aquinas political theory that rulers rule for the sake of the governed, like for the good and well-being of those subject to the ruler. Aquinas concludes that God has in His intellect an idea by which He governs the world. This Idea, in God, for the governance of things is the eternal law.24

23

http://www.nlnrac.org/earlymodern/hobbes

24

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

Natural law: Criticism Attack Defense Philosopher’s quotation Conclusion