Concept of Natural Law in Ancient Greece

Natural law is a philosophical and legal theory that posits the existence of a law whose content is set by nature and that therefore has validity everywhere. It is often contrasted with positive law (law created by humans). Natural law theories have a long history, evolving through different periods and influences.

Natural Law in Ancient Greece:

Ancient Greek philosophy laid some of the earliest foundations for natural law thinking, linking it to concepts of justice, nature, and reason.

Socrates (c. 470-399 BCE) and Plato (c. 428-348 BCE): Theory of Forms

• Socrates: Although he did not write down his philosophy, his ideas, as presented by Plato, emphasized the importance of virtue and moral principles. He linked law to morality and believed in a higher law based on human reason and conscience.

• Plato: In his 'Theory of Forms', Plato posited the existence of ideal, eternal, and perfect Forms (ideas) of things, including justice, beauty, and truth. Human laws, to be just, should ideally reflect these perfect Forms. A just state is one that conforms to these eternal principles, which are discoverable through reason.

Both Socrates and Plato suggested a connection between human law and a higher, more perfect standard discoverable through reason and philosophy, though their focus was more on ethics and the ideal state than a detailed theory of natural law.

Aristotle (384-322 BCE): Classification of Laws (Natural, Universal, Particular)

Aristotle made a more explicit distinction between natural and conventional law. He observed that human laws are often specific to particular communities, but he also recognised a universal sense of justice that exists independently of human enactment.

• Natural Justice/Law (Physei Dikaion): That which has the same force everywhere and does not exist by people's thinking.

• Universal Law: Based on nature.

• Particular Law: Written law of a political community.

Aristotle saw natural law as discoverable through reason and observation of the natural order. He believed that law should promote the flourishing of human beings (eudaimonia) and be guided by justice, which is inherently natural. His emphasis on teleology (purpose or end) in nature influenced later natural law thinkers.

Stoic Philosophers (from 3rd Century BCE onwards): Universal Reason

The Stoic school of philosophy, which originated in Greece and later spread to Rome, had a profound influence on natural law. They believed in a Universal Reason (Logos) that governs the cosmos and human nature.

• Natural law, for the Stoics, was identified with this Universal Reason, which is inherent in all human beings.

• Living according to nature meant living according to reason. Just human laws are those that conform to this universal, rational natural law.

• The Stoics emphasized the idea of a universal community of mankind governed by natural law, transcending local customs and laws.

Stoicism provided a concept of natural law that was rational, universal, and binding on all, influencing Roman jurists and later Christian thinkers.

Natural Law in Roman Law

Roman jurists were influenced by Greek philosophy, particularly Stoicism, and incorporated natural law concepts into their legal thinking and system.

Classification of Roman Law:

Roman jurists distinguished between different types of law:

• Jus Civile: The civil law applicable only to Roman citizens.

• Jus Gentium: The law of nations, applicable to foreigners as well as citizens. This body of law was developed based on principles common to the legal systems of different peoples, and Roman jurists saw it as reflecting natural reason and justice.

• Jus Naturale: Natural law. This was seen as the highest form of law, based on the natural order and applicable to all beings (including animals, according to some jurists like Ulpian) as well as humans.

Jus Gentium was often seen as the practical application of Jus Naturale.

Cicero (106-43 BCE): Jus Naturale

Cicero, a Roman statesman, lawyer, and philosopher, was significantly influenced by Stoicism. He articulated a clear concept of natural law:

• He described natural law as 'right reason in agreement with nature', which is universal, eternal, and immutable.

• It is a law that is inherent in nature and discoverable by reason, binding on all people and all nations.

• A human law that violates natural law is not a true law.

Cicero's eloquent formulation of natural law greatly influenced later European thought, particularly during the Middle Ages and the Enlightenment.

Natural Law in Early Christianity

Early Christian thinkers integrated natural law concepts with theological doctrines, viewing natural law as a reflection of God's will or divine reason.

St. Augustine (354-430 CE): Divine Law

St. Augustine, an influential early Christian theologian and philosopher, identified natural law with the eternal reason of God. He linked human law to divine authority.

• Eternal Law (Lex Aeterna): The divine reason or the will of God, ordering the universe. This is the highest law.

• Natural Law (Lex Naturalis): The reflection of eternal law in human reason and conscience. It is the part of eternal law that is discernible by human reason.

• Human Law (Lex Temporalis): Positive law enacted by human rulers. Augustine believed that human law should conform to eternal and natural law. An unjust law (lex injusta) is not a law at all ('Lex injusta non est lex').

Augustine's work laid the foundation for the integration of Christian theology with natural law, which became a dominant theme in the medieval period.

Thomas Aquinas: Synthesis of Theology and Law

The Medieval period witnessed a synthesis of Christian theology and Aristotelian philosophy, leading to the most systematic and influential exposition of natural law by Thomas Aquinas.

St. Thomas Aquinas (1225-1274): Summa Theologica

Aquinas, a Dominican friar and philosopher, built upon the ideas of Aristotle and Augustine to create a comprehensive philosophical system that integrated faith and reason. His theory of law is presented primarily in his monumental work, 'Summa Theologica'.

Fourfold Classification of Law: Eternal, Natural, Human, Divine

Aquinas classified law into four hierarchical categories:

1. Eternal Law (Lex Aeterna): This is the unalterable reason of God, governing the entire universe. It is known fully only to God.

2. Natural Law (Lex Naturalis): This is the participation of rational creatures in the eternal law. It is that part of God's law that is discernible by human reason. The primary precept of natural law is to do good and avoid evil. From this primary precept, other secondary precepts can be derived by reason (e.g., preserve life, procreate, seek knowledge, live in society).

3. Human Law (Lex Humana): This is positive law, enacted by human authorities. Human law must be derived from natural law. It can be derived in two ways: by conclusion (like logical deductions) or by determination (like filling in the details of a general principle). Human law is necessary because natural law is general and needs to be applied to specific circumstances, and also because human beings need coercion to be virtuous.

4. Divine Law (Lex Divina): This is the law revealed by God through scriptures (like the Bible). It is necessary because human reason is fallible, and it guides human beings towards their supernatural end (salvation). It also provides certainty on matters that natural law might not clearly cover.

For Aquinas, human law is true law only if it conforms to natural law and ultimately to eternal law. An unjust human law (one that violates natural law) is not binding in conscience and is a perversion of law. However, he added that such laws might still have to be obeyed externally to avoid scandal or greater disturbance, unless they directly violate divine law.

Aquinas's synthesis became the dominant natural law theory in the Western tradition and remains influential today, particularly in Catholic philosophy.

Natural Law and the Church

During the Medieval period, the Roman Catholic Church played a central role in society, and natural law theory became closely intertwined with Church doctrine.

Church as Interpreter of Natural Law:

Following thinkers like Augustine and Aquinas, the Church was often seen as the authoritative interpreter of divine law and, consequently, natural law. Ecclesiastical law (canon law) was viewed as derived from or consistent with natural law.

The Church claimed authority over temporal rulers, arguing that the legitimacy of human law derived from its conformity to natural and divine law, as interpreted by the Church.

Natural law provided a philosophical basis for the Church's teachings on morality, justice, and the structure of society. It was used to justify the Church's positions on various social and political issues.

However, the close association of natural law with theology and the authority of the Church also led to criticisms and challenges during the Renaissance and Reformation periods, paving the way for the development of modern natural law theories that sought to ground natural law in human reason independent of divine command.

Hugo Grotius: Father of International Law

The Modern Period of natural law theory saw a shift towards grounding natural law in human reason, often independent of theology. This period is associated with the development of social contract theories and the concept of natural rights.

Hugo Grotius (1583-1645): De Jure Belli ac Pacis (On the Law of War and Peace)

Grotius, a Dutch jurist and theologian, is widely regarded as the father of international law. He applied natural law principles to relations between states, which were increasingly independent of religious authority after the Reformation.

Natural Law independent of God

Grotius famously argued that natural law would have validity "even if there were no God, or if national affairs were of no concern to Him". This statement marked a significant departure from the medieval scholastic tradition that firmly rooted natural law in God's eternal law.

For Grotius, natural law is discoverable by human reason and is based on the rational and social nature of human beings. The most fundamental principle of natural law is the preservation of society and the observance of contracts (pacta sunt servanda - agreements must be kept), which he saw as the basis for peaceful relations between states.

Grotius's emphasis on reason and social nature made natural law applicable to international relations, regardless of the religious beliefs of rulers or states. His work laid the groundwork for modern international law based on principles of natural reason.

Thomas Hobbes: Leviathan

Thomas Hobbes, an English philosopher, developed a social contract theory based on his view of human nature and natural law.

Thomas Hobbes (1588-1679): Leviathan (1651)

Hobbes's philosophy was deeply influenced by the English Civil War. He argued that in the state of nature, life is "solitary, poor, nasty, brutish, and short" (a state of 'war of all against all'). This view of a chaotic state of nature led him to propose a social contract.

Social Contract Theory

According to Hobbes, the first law of nature is to seek peace. From this, the second law of nature is that for the sake of peace, individuals must be willing to give up some of their natural liberty and rights, provided others do the same. They enter into a contract to create a sovereign authority (the 'Leviathan') to enforce peace and security.

Individuals surrender their rights to this sovereign in exchange for protection. The sovereign's power is absolute, and the subjects have no right to resist the sovereign, except perhaps when their very life is threatened.

For Hobbes, positive law enacted by the sovereign is the true law. Natural law consists of rational precepts necessary for self-preservation and social order, which lead to the creation of the sovereign and the obligation to obey positive law. He viewed natural law as a set of dictates of reason rather than divine commands or inherent moral truths in the traditional sense.

Hobbes's theory provided a justification for absolute sovereignty and emphasised the necessity of strong governmental authority to maintain order, contrasting with later natural law thinkers who used social contract to justify limited government and individual rights.

John Locke: Natural Rights

John Locke, another influential English philosopher, also developed a social contract theory, but with a different view of the state of nature and the purpose of government.

John Locke (1632-1704): Two Treatises of Government (1689)

Locke's philosophy had a profound impact on liberal political thought, particularly in Britain and America. He argued that in the state of nature, human beings are free and equal, governed by natural law which dictates that no one ought to harm another in his life, health, liberty, or possessions.

Natural Rights: Life, Liberty, and Property

For Locke, the state of nature is governed by natural law, which bestows upon individuals certain inherent and inalienable natural rights: Life, Liberty, and Property. Individuals enter into a social contract not to escape a brutal state of war (as in Hobbes) but to better protect these natural rights, which are insecure in the state of nature due to the absence of a common authority to interpret and enforce natural law.

Individuals surrender only the right to enforce natural law themselves to the government. The government's primary purpose is to protect the natural rights of its citizens. If the government fails to do so or acts contrary to the purpose for which it was established, the people have the right to resist and overthrow the government.

Locke's emphasis on natural rights and limited government provided a strong foundation for constitutionalism and popular sovereignty, greatly influencing the American and French Revolutions.

Jean-Jacques Rousseau: General Will

Jean-Jacques Rousseau, a Swiss-born French philosopher, presented a different version of the social contract theory, focusing on the concepts of freedom and the general will.

Jean-Jacques Rousseau (1712-1778): The Social Contract (1762)

Rousseau argued that human beings are naturally good but corrupted by society. His famous phrase, "Man is born free, and everywhere he is in chains", expresses his critique of existing social and political order.

According to Rousseau, individuals enter into a social contract by alienating all their rights to the whole community. In doing so, they gain the equivalent rights back from the community. This creates a collective body, the sovereign, which represents the 'general will' of the people.

General Will:

The general will is not simply the sum of individual wills, but the will of the community as a whole, aimed at the common good. For Rousseau, the general will is always right and directed towards the public advantage. Law is the expression of the general will.

Individuals are obligated to obey the general will because, by obeying it, they are obeying themselves (as they are part of the community that constitutes the sovereign). If an individual is forced to obey the general will, they are merely being 'forced to be free', as true freedom lies in obedience to the self-imposed law of the community.

Rousseau's concept of the general will influenced democratic theory and the idea of popular sovereignty, although critics have pointed out its potential for totalitarianism by subordinating individual freedom to the will of the collective.

Immanuel Kant: Categorical Imperative

Immanuel Kant, a German philosopher, is one of the most influential figures in modern Western philosophy. His ethical theory is based on the concept of the categorical imperative.

Immanuel Kant (1724-1804): Groundwork of the Metaphysics of Morals (1785)

Kant's philosophy aimed to establish moral principles based on reason alone, independent of consequences or desires. He distinguished between hypothetical imperatives (commands that depend on a desired outcome, e.g., "If you want X, do Y") and the categorical imperative.

Categorical Imperative:

The categorical imperative is an unconditional moral command that is binding on all rational beings, regardless of their goals or desires. It is based on the idea of duty and universality.

Kant formulated the categorical imperative in several ways, the most famous being: "Act only according to that maxim whereby you can at the same time will that it should become a universal law". This principle suggests that moral actions are those that can be consistently willed to be applied universally to everyone.

For Kant, the moral worth of an action lies in its being done from duty, not from inclination or consequences. Law, in Kant's view, should be based on the principles of the categorical imperative, respecting the autonomy and rationality of individuals. He distinguished between legality (external conformity to law) and morality (acting from duty and inner conviction).

Kant's emphasis on reason, duty, and universality in ethics provided a strong philosophical foundation for moral and legal principles based on human autonomy.

Lon Fuller: The Morality of Law

Lon Fuller was an American legal philosopher who presented a modern natural law theory as a critique of legal positivism, particularly the work of H.L.A. Hart.

Lon Fuller (1902-1978): The Morality of Law (1964)

Fuller argued against the strict separation of law and morality advocated by positivists. He believed that law is not merely a set of commands, but a purposive activity aimed at subjecting human conduct to the governance of rules.

Inner Morality of Law (Procedural Natural Law):

Fuller argued that for a system of rules to be considered 'law', it must satisfy certain internal moral requirements, which he called the 'inner morality of law' or the 'procedural natural law'. He outlined eight principles of legality that a system of rules must strive to achieve to be considered truly 'law':

1. Generality: Rules should be general, applying to classes of people and actions.

2. Promulgation: Rules must be published or made known.

3. Prospectivity: Rules should generally be prospective (apply to future conduct), not retrospective.

4. Clarity: Rules should be understandable.

5. Consistency: Rules should not contradict each other.

6. Possibility of Obedience: Rules should not require the impossible.

7. Stability: Rules should not be changed too frequently.

8. Congruence between Rules and Action: The official action must be consistent with the declared rules.

Fuller argued that a total failure in any of these principles would result in something that is not properly called a legal system. While these principles are procedural, he believed that adherence to them promotes a form of justice and makes it difficult for truly wicked regimes to use law as a tool of oppression. He famously used the example of Nazi law to illustrate how a system failing these internal moral principles ceased to be a true legal system.

Fuller's theory provided a powerful restatement of natural law in procedural terms, arguing that law has inherent moral goals tied to the process of rule-making itself.

John Finnis: Modern Natural Law

John Finnis is a prominent contemporary natural law theorist who presents a sophisticated version of natural law, building on the tradition of Aquinas but adapted for modern philosophy.

John Finnis (1940-present): Natural Law and Natural Rights (1980)

Finnis defends the concept of objective moral principles based on practical reasonableness. He argues that natural law consists of principles of practical reasonableness that guide human choice and action towards basic human goods.

Basic Goods:

Finnis identifies a set of fundamental, irreducible 'basic goods' that are self-evident as being good for human beings and that provide reasons for action. These include:

1. Life: Includes health, vitality, procreation.

2. Knowledge: Especially speculative knowledge, knowledge for its own sake.

3. Play: Engaging in performances for their own sake.

4. Aesthetic Experience: Appreciating beauty.

5. Sociability (Friendship): Acting for the sake of one's friends.

6. Practical Reasonableness: Using one's intelligence to make sound decisions about one's life and actions, and the ordering of human life.

7. Religion: Dealing with questions about the origin of the cosmic order and human freedom and reason (can be understood non-theistically).

These basic goods are considered pre-moral. Morality enters through the 'requirements of practical reasonableness', which are a set of principles for guiding one's choices and actions towards these basic goods and harmonising different goods. For example, requiring coherent life plan, no arbitrary preference among values, impartiality among persons, commitment, efficiency, respect for every basic value in every act, and following one's conscience.

Human law, for Finnis, is derived from natural law (the basic goods and requirements of practical reasonableness). Just laws are those that are consistent with and promote the common good, which is achieved through the pursuit and protection of the basic goods in community. Unjust laws are deficient as laws and may not create a moral obligation to obey, although there may be prudential reasons to obey even an unjust law for the sake of maintaining legal order.

Finnis's work is a significant contribution to modern natural law, offering a rational and non-positivist account of the relationship between law and morality based on inherent human goods.

Critique of Legal Positivism

The atrocities of World War II, particularly the use of law by totalitarian regimes (like Nazi Germany) to commit horrific acts, led to a significant revival of interest in natural law theory after 1945. This revival was partly a response to the perceived failures of legal positivism.

Positivism's Stance:

Legal positivism, which became dominant in the 19th and early 20th centuries (represented by thinkers like Austin and Kelsen), generally holds that the validity of a law depends solely on its source (i.e., whether it was enacted by a competent authority according to the correct procedure) and not on its moral content. According to strict positivism, even morally abhorrent rules, if properly enacted, are valid law. This separation of law and morality was seen by critics as potentially enabling unjust legal systems.

Critique of Legal Positivism:

Post-war natural law theorists argued that positivism failed to provide a basis for criticizing unjust laws. If law and morality are strictly separate, how can one say that a law, however cruel, is not really 'law'? The argument was that there must be some higher moral standard against which positive law can be judged.

The famous statement by German jurist Gustav Radbruch is illustrative: after the war, he abandoned positivism and argued that while the conflict between justice and positive law may be resolved in favour of positive law if it is only unjust in a small degree, when the conflict reaches an intolerable degree, the law as 'false law' must yield to justice.

This critique suggested that a purely source-based test of legal validity is insufficient and that there is an intrinsic connection between law and morality or justice.

Hart's Critique

H.L.A. Hart, a leading figure in 20th-century legal positivism, responded to the post-war natural law critique and the perceived weakness of earlier positivism (like Austin's command theory).

H.L.A. Hart (1907-1992): The Concept of Law (1961)

Hart presented a sophisticated version of positivism. While he maintained the conceptual separation of law and morality, he acknowledged that moral principles might influence the content of law and that legal systems require a minimum moral content to be viable.

Hart's Response:

• Rejection of the 'No True Law' Argument: Hart rejected the traditional natural law claim that 'an unjust law is no law at all'. He argued that a law can be morally unjust but still legally valid. He believed it is clearer and more conducive to moral reflection to say "This is law, but it is too iniquitous to be obeyed" than to say "This is not law".

• The Minimum Content of Natural Law: Hart argued that due to certain basic facts about human nature and the world (e.g., human vulnerability, approximate equality, limited resources, limited altruism), any legal system must contain a minimum set of rules necessary for survival and social order. These rules, such as prohibiting violence and theft, are a 'minimum content of natural law', but their necessity is based on empirical facts about human goals (survival), not inherent moral values in a metaphysical sense.

• Rules of Recognition: Hart's concept of the Rule of Recognition, which identifies the criteria for valid law in a legal system, is a purely source-based test and does not inherently include moral criteria (although a Rule of Recognition could, in principle, incorporate moral standards if a community chose to adopt such a rule).

Hart's work refined positivism and engaged directly with natural law arguments, acknowledging the intersection of law and morality without abandoning the core positivist tenet of their conceptual separation.

Response to Legal and Moral Absolutism

The post-war revival of natural law was not necessarily a return to earlier forms of moral or legal absolutism. It also reflected a more nuanced understanding of the relationship between law, justice, and morality.

Moving Beyond Absolutism:

• Procedural Natural Law (Fuller): Fuller's theory focused on the procedural requirements of legality, arguing that adherence to these promotes a form of inner morality, rather than claiming that specific moral rules are inherent in nature.

• Focus on Human Flourishing (Finnis): Finnis's theory is based on identifying basic human goods that provide reasons for action and principles of practical reasonableness to guide choices, rather than deriving specific legal rules from a divine or purely metaphysical source. His theory is based on rational principles, not absolute commands.

• Human Rights Discourse: The post-war emphasis on universal human rights (e.g., Universal Declaration of Human Rights, European Convention on Human Rights) reflected a form of secular natural law, asserting the existence of inherent rights based on human dignity, independent of state conferral. This is a key aspect of modern natural law thinking.

• Constitutionalism and Basic Structure: In many countries, including India (Basic Structure Doctrine), constitutionalism has incorporated elements that reflect the idea that there are fundamental principles and values (akin to natural law) that limit governmental power, including the power to make or amend laws.

The revival of natural law was not a monolithic movement but encompassed various approaches. It moved away from strict religious or metaphysical justifications towards more secular, rational, and procedural accounts of the connection between law and morality, often driven by the practical need to evaluate and critique positive legal systems based on standards of justice and human rights.