2Introduction Overview of Natural Law Theories Methodology Main Tenets Major Schools and Great ThinkersHistorical Function of Natural Law TheoriesNatural Law Thinking in Ancient ChinaCritics of Natural Law
3Overview of Natural Law Theories Natural law is that "unwritten law" that is more or less the same for everyone everywhere. To be more exact, natural law is the concept of a body of moral principles that is common to all humankind and, as generally posited, is recognizable by human reason alone. Natural law is therefore distinguished from -- and provides a standard for -- positive law, the formal legal enactments of a particular society.
4MethodologyTeleological view of the universe and human society: regarding the world, especially human society, as having an ultimate purpose, some state of perfection towards which society must inexorably advance. Law, as a devise for promoting the desired good, is regarded as being a social necessity.
5Main Tenets Doing Good but avoid evil Justice Rule of Law Natural RightsLaw and Morality closely relatedNatural Law is universal, objective, immutable and eternal.
6Introduction Overview of Natural Law Theories Methodology Main Tenets Major Schools and Great ThinkersHistorical Function of Natural Law TheoriesNatural Law Thinking in Ancient ChinaCritics of Natural Law
7Major Schools and Great Thinkers Ancient Greek Roots: Socrates, Plato , Aristotle, Stoics, CiceroTheological School: St. Augustine, AquinasClassical Natural Law Theory: GrotiusNatural Law Theory after World War II
8Socrates and PlatoSocrates ( BC) and Plato (428 – 348 ) argued that there were principles of morality which it was possible to discover through processes of reasoning and insight. Law based on these principles would thus be the product of correct reasoning.
9Aristotle ( BC)Aristotle recognized nature as the capacity for development inherent in particular things and aimed at a particular end or purpose, both in respect to physical and moral phenomena.He also made a distinction between natural justice and conventional justice. Natural justice is common to all humanity, a kind of ‘state of goodness’. Conventional justice varies from state to state, for particular communities.
10StoicsStoicism provided the most complete classical formulation of natural law. The Stoics argued that the universe is governed by reason, or rational principle; they further argued that all humans have reason within them and can therefore know and obey its law.
11Cicero (106-43BC)Cicero argued that nature provided rules by which humanity ought to live; these rules, which could be discovered through reason, should form the basis of all law. In De Legibus he argued that ‘true law is right reason in agreement with nature, it is of universal application, unchanging and everlasting.’
12Theological SchoolChristian philosophers readily adapted Stoic natural law theory, identifying natural law with the law of God. For Thomas Aquinas, natural law is that part of the eternal law of God ("the reason of divine wisdom") which is knowable by human beings by means of their powers of reason. Human, or positive, law is the application of natural law to particular social circumstances. Like the Stoics, Aquinas believed that a positive law that violates natural law is not true law.
13St. Thomas Aquinas (1224-74) Four Categories: Eternal law- God’s 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 accordance with the time and circumstances in which it is formulated, but its essence is to be just. Thus, lex injusta non est lex (an unjust law is not law).
14Classical Natural LawWith the secularization of society resulting from the Renaissance and Reformation, natural law theory found a new basis in human reason. The 17th-century Dutch jurist Hugo Grotius believed that humans by nature are not only reasonable but social. Thus the rules that are "natural" to them -- those dictated by reason alone -- are those which enable them to live in harmony with one another. From this argument, by the way, Grotius developed the first comprehensive theory of international law.
15Natural RightsNatural law theory eventually gave rise to a concept of "natural rights." John Locke argued that human beings in the state of nature are free and equal, yet insecure in their freedom. When they enter society they surrender only such rights as are necessary for their security and for the common good. . Each individual retains fundamental prerogatives drawn from natural law relating to the integrity of person and property (natural rights).
16Inalienable RightsThis natural rights theory provided a philosophical basis for both the American and French revolutions. Thomas Jefferson used the natural law theory to justify his trinity of "inalienable rights" which were stated in the United States Declaration of Independence.
17Natural Law Theory after WWII Lon Fuller – Inner Morality of law, ProceduralismJohn Finnis – Aquinas, ConceptualismRonald Dworkin: Law as Integrity
18Lon FullerFuller calls his principles 'procedural' rather than substantive. He also calls the morality that's required for law, 'internal morality.' Substantive principles describe what is right and what is wrong. They tell us how to regulate our conduct, i.e., whether polygamy is wrong. Procedural principles give criteria for forming substantive moral principles into law. Fuller's view is that natural justice enters the law at the procedural level. There are certain procedural principles which are necessary for anything to be a law in the first place. These principles make the law procedurally just, even if not substantively just
19John FinnisArguing about what is "law" or "not law" is silly; what matters is what judges (and other officials) may or must take into accountNatural lawyers believe in a mind-independent moral reality that provides objectively valid standards of right conduct
20John FinnisNatural law is a set of principles of practical reasonableness to be utilized in the ordering of human life and human community in the process of creating optimum conditions for humans to attain the objective goods. These conditions constitute the ‘common good’. Finnis lists seven objective goods which he regards as being irreducible basic. These are:
21John 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 one’s friends’ purpose or well being;Practical reasonableness – the use of one’s intelligence to choose actions, lifestyle, character, etc;Religion – the ability to reflect on the origins of the cosmic order and human freedom and reason.
22Ronald DworkinRonald Dworkin made strong criticisms to both Natural Law and Legal Positivism and many people say that Dworkin's theory occupies a middle ground between Natural Law and Legal Positivism as the third theory of law.From rules to principles to moral fiber to Hercules---the idea of integrity
23Ronald DworkinDworkin is most famous for his theory of law as integrity, which is given its fullest statement in his book Law's Empire. Dworkin's theory is interpretive. He argues that law is best understood as an interpretation of the political practices of a society. Thus, in deciding a legal case, judges decide in accord with the interpretation of the society's institutions and legal texts that best fits and justifies the society's history and practices.
24Introduction Overview of Natural Law Theories Methodology Main Tenets Major Schools and Great ThinkersHistorical Function of Natural Law TheoriesNatural Law Thinking in Ancient ChinaCritics of Natural Law
25Historical Function of Natural Law Theories Divinization of LawSecularization of LawDemystification of Law
29Natural Law Thinking in Ancient China Lao ZiConfucius
30Lao Zi – Non-interference Man has been granted a simple nature, and all social activities follow their own natural law. Non-Interference (or less interference, when absolute non-interference is unavoidable), would lead things in their original direction. In this way, society and nature would be in good order, and no conflict would take place. So Laozi said: If I do things by Non-Interference, people will follow me naturally; If I incline to Tranquility, people will be led in the proper direction; If I interfere with nothing, people will become rich; If I have no sensual desire, people will become simple and sincere.
31Confucius"Sir, what need is there of the death penalty in your system of government? If you showed a sincere desire to be good, your people would likewise be good. The virtue of the prince is Like unto wind; that of the people, like unto grass. For it is the nature of grass to bend, when the wind blows upon it."
32Critics of Natural LawFuller has been criticized for overlooking that even laws which adhere to the inner morality, may be unjust.Natural law can’t guide judicial decision in specific cases.It is wrong for natural law theorists to argue that there is a strong connection between law and morality.Morality is subjective and varies with different people and therefore cannot be eternal.