slide natural law

8/10/2019 Slide Natural Law

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Introduction

Overview of Natural Law Theories

Methodology

Main Tenets Major Schools and Great Thinkers

Historical Function of Natural Law Theories

Natural Law Thinking in Ancient China

Critics of Natural Law


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Methodology

Teleological view of the universe andhuman society: regarding the world,

especially human society, as having anultimate purpose, some state of perfectiontowards which society must inexorably

advance. Law, as a devise for promotingthe desired good, is regarded as being asocial necessity.


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Main Tenets

Doing Good but avoid evil

Justice

Rule of Law

Natural Rights

Law and Morality closely related

Natural Law is universal, objective,immutable and eternal.


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Major Schools and Great

ThinkersAncient Greek Roots: Socrates, Plato ,Aristotle, Stoics, Cicero

Theological School: St. Augustine,Aquinas

Classical Natural Law Theory: Grotius

Natural Law Theory after World WarII


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Socrates and Plato

Socrates (470-399 BC) and Plato (428 348 ) argued that there were principles of

morality which it was possible to discoverthrough processes of reasoning andinsight. Law based on these principles

would thus be the product of correctreasoning.


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Aristotle (384-322BC)

Aristotle recognized nature as the capacity fordevelopment inherent in particular things and

aimed at a particular end or purpose, both inrespect to physical and moral phenomena.

He also made a distinction between naturaljustice and conventional justice. Natural justice

is common to all humanity, a kind of state ofgoodness. Conventional justice varies from state

to state, for particular communities.


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Stoics

Stoicism provided the most completeclassical formulation of natural law. The

Stoics argued that the universe isgoverned by reason, or rational principle;they further argued that all humans have

reason within them and can thereforeknow and obey its law.


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Cicero (106-43BC)

Cicero argued that nature provided rulesby which humanity ought to live; these

rules, which could be discovered throughreason, should form the basis of all law. InDe Legibus he argued that true law is

right reason in agreement with nature, itis of universal application, unchanging andeverlasting.


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St. Thomas Aquinas (1224-74)

Four Categories: Eternal law- Gods rational guidance of all creatures.

Divine law that part of law manifested through

revelations in the Christian scriptures. Natural law participation of rational creatures in the

eternal law through the operation of reason.

Human law derived from both divine law and

natural law. This law may be variable in accordancewith the time and circumstances in which it isformulated, but its essence is to be just. Thus, lexinjusta non est lex(an unjust law is not law).


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Classical Natural Law

With the secularization of society resulting fromthe Renaissance and Reformation, natural lawtheory found a new basis in human reason. The

17th-century Dutch jurist Hugo Grotius believedthat humans by nature are not only reasonablebut social. Thus the rules that are "natural" tothem -- those dictated by reason alone -- are

those which enable them to live in harmony withone another. From this argument, by the way,Grotius developed the first comprehensive theoryof international law.


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Natural Rights

Natural law theory eventually gave rise to aconcept of "natural rights." John Locke arguedthat human beings in the state of nature are

free and equal, yet insecure in their freedom.When they enter society they surrender onlysuch rights as are necessary for their securityand for the common good. . Each individual

retains fundamental prerogatives drawn fromnatural law relating to the integrity of personand property (natural rights).


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Inalienable Rights

This natural rights theory provided aphilosophical basis for both the American

and French revolutions. Thomas Jeffersonused the natural law theory to justify histrinity of "inalienable rights" which were

stated in the United States Declaration ofIndependence.


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Natural Law Theory after

WWII Lon Fuller Inner Morality of law,

Proceduralism

John Finnis Aquinas, Conceptualism

Ronald Dworkin: Law as Integrity


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John Finnis

Arguing about what is "law" or "not law" issilly; what matters is what judges (and

other officials) may or must take intoaccount

Natural lawyers believe in a mind-

independent moral reality that providesobjectively valid standards of right conduct


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John Finnis

Natural law is a set of principles ofpractical reasonableness to be utilized in

the ordering of human life and humancommunity in the process of creatingoptimum conditions for humans to attainthe objective goods. These conditions

constitute thecommon good

. Finnis lists

seven objective goods which he regards asbeing irreducible basic. These are:


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John Finnis

Life- the first basic value;

Knowledge- a preference for true over false believe;

Play- performance for the sake of it;

Aesthetic experience the appreciation of beauty; Friendship or sociability acting for the sake of ones

friendspurpose or well being;

Practical reasonableness the use of ones intelligence

to choose actions, lifestyle, character, etc; Religion the ability to reflect on the origins of the

cosmic order and human freedom and reason.


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Ronald Dworkin

Ronald Dworkin made strong criticisms toboth Natural Law and Legal Positivism and

many people say that Dworkin's theoryoccupies a middle ground between NaturalLaw and Legal Positivism as the third

theory of law. From rules to principles to moral fiber to

Hercules---the idea of integrity


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Ronald Dworkin

Dworkin is most famous for his theory of lawas integrity, which is given its fullest statement

in his book Law's Empire. Dworkin's theory isinterpretive. He argues that law is bestunderstood as an interpretation of the politicalpractices of a society. Thus, in deciding a legal

case, judges decide in accord with theinterpretation of the society's institutions andlegal texts that best fits and justifies thesociety's history and practices.


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Historical Function of Natural

Law Theories

Divinization of Law

Secularization of Law

Demystification of Law


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Divinization of Law


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Secularization of Law


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Demystification of Law


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Natural Law Thinking in AncientChina

Lao Zi

Confucius


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Lao Zi Non-interference

Man has been granted a simple nature, and allsocial activities follow their own natural law. Non-Interference (or less interference, when absolutenon-interference is unavoidable), would lead

things in their original direction. In this way,society and nature would be in good order, and noconflict would take place. So Laozi said: If I dothings by Non-Interference, people will follow me

naturally; If I incline to Tranquility, people will beled in the proper direction; If I interfere withnothing, people will become rich; If I have nosensual desire, people will become simple and

sincere.


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Confucius

"Sir, what need is there of the deathpenalty in your system of government? If

you showed a sincere desire to be good,your people would likewise be good. Thevirtue of the prince is Like unto wind; thatof the people, like unto grass. For it is thenature of grass to bend, when the wind

blows upon it."


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Critics of Natural Law

Fuller has been criticized for overlookingthat even laws which adhere to the innermorality, may be unjust.

Natural law cant guide judicial decision inspecific cases.

It is wrong for natural law theorists to arguethat there is a strong connection between

law and morality. Morality is subjective and varies with

different people and therefore cannot be

eternal.


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Fin

Merci

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