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INTRODUCTION
The concept of natural law has taken several forms. The idea began wit h the ancient Greek
conception of a universe governed in every particular by an eternal, immutable law and in t distinction between what is just by nature and just by convention. Stoicism Stoicism provided the m complete classical formulation of natural law. The Stoics argued t hat the universe is govern by reason, or rational principle; they further argued that all humans have reason within t and can therefore know and obey its law. Because human beings have the faculty of choice free will), they will not necessarily obey the law; if they act in accordance wit h reason, how they will be "following nature."
Christian philosophers readily adapted Stoic natural law t heory, identifying natural law wit law of God. For Thomas Aquinas, natural law is t hat part of the eternal law of God ("the rea 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. the Stoics, Aquinas believed that a positive law that violates natural law is not true law.
With the secularization of society resulting from t he Renaissance and Reformation, natural 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 i harmony with one another. From this argument, by t he way, Grotius developed the first comprehensive theory of international law.
Natural law theory eventually gave rise to a concept of "natural rights." John Locke argued human beings in the state of nature are free and equal, yet insecure in t heir freedom. W they enter society t hey surrender only such rights as are necessary for their security and fo common good. Each individual retains fundamental prerogatives drawn from natural law hts). Thvote heory relating to the integrity of person and property (natural rig isFor natural rights t Read Free 30this Days Sign up to on title h revolutions. Thomas Jeffe provided a philosophical basis for both the American and Useful Not useful Frenc Cancel anytime. the natural law t heory to justify his trinity of "inalienable rights" which were stated in Special offer forused students: Only $4.99/month. United States Declaration of Independence. Independence.
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reason alone. Natural law is t herefore distinguished from -- and provides a standard for -positive law, the formal legal enactments of a particular society.
Since law must always be some dictate of reason, natural law also will be some dictate of reason. In fact, it is t he law discovered by human reason. Our normal and natural grasp of natural law is affected by reason, that is, by the thinking mind, and in this service reason is sometimes called "conscience." We, in all our human acts, inevitably see t hem in their relat to the natural law, and we mentally pronounce upon their agreement or disagreement wit natural law. Such a pronouncement may be called a "judgment of conscience." conscience." The "norm" morality is the natural law as applied by conscience. Lastly, we can say t hat the natural law the disposition of things as known by our human reason and to which we must conform ourselves if we are to realize our proper end or "good" as human beings. To
sum it up, then, we can say that the natural law: y y y y y
is not made by human beings; is based on t he structure of reality itself; is the same for all human beings and at all times; is an unchanging rule or pattern which is there for human beings to discover; is a means by which human beings can rationally guide themselves to their good.
It is interesting to note that virtually everyone seems to have some knowledge of natural la even before such knowledge is codified and formalized. Even young children make an appe "fair play," demand that things be "fair and square," and older children and adults often ap the "golden rule." When doing so, they are spontaneously invoking the natural law. This is w many proponents proponents of the natural law theory say it is the law which is "written upon the hear men."
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Special offer forThe students: firstOnly is a$4.99/month. theory of morality. First, moral propositions have what is sometimes c
objective standing in the sense that such propositions are the bearers of objective tr
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reason, which is the first principle of human acts. On this common view, since human b are by nature rational beings, it is morally appropriate that they should behave in a way conforms to their rational nature. Thus, Aquinas derives the moral law from the natu human beings (thus, natural law).
But there is another kind of natural law theory having to do with the relationship of moral law. According to natural law theory of law, there is no clean division between the notion o and the notion of morality. Though there are different versions of natural law theor subscribe to the thesis that t here are at least some laws t hat depend for t heir authority on some pre-existing human convention, but on the logical relationship in which they sta moral standards. Otherwise put, some norms are authoritative in virtue of their moral con even when there is no convention that makes moral merit a criterion of legal validity. Th that the concepts of law and morality intersect in some way is called the Overlap Thesis.
As an empirical matter, many natural law moral theorists are also natural law legal th but the two theories, strictly speaking, are logically independent. One can deny natura theory of law but hold a natural law theory of morality. John Austin, the most influential o early legal positivists, for example, denied the Overlap Thesis but held something resembles a natural law ethical theory.
Indeed, Austin explicitly endorsed t he view that it is not necessarily true that the legal va of a norm depends on whether its content conforms to morality. But while Austin thus de the Overlap Thesis, he accepted an objectivist moral t heory; indeed, Austin inherite utilitarianism almost wholesale from J.S. Mill and Jeremy Bentham. Here it is worth noting utilitarians sometimes seem to suggest that they derive their utilitarianism from certain about human nature; as Bent ham once wrote, nature has placed mankind under governance of two sovereign masters, pain and pleasure. It is for t hem alone to point out we ought to do, as well as to determine what we shall do. On the one hand the standa right and wrong, on the other the chain of causes and effects, are fastened to t heir t Read Free Foron 30this Days Sign up to vote title wit (Bentham 1948, 1). Thus, a commitment to natural law theory of morality is consistent Useful Not useful Cancel anytime. denial of natural law theory of law.
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Conversely, one could, th
h
his
would be unusual, accept a natural law t heory o
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Conceptual Naturalism
a. The Project of Conceptual Jurisprudence The
principal objective of conceptual (or analytic) jurisprudence has traditionally bee provide an account of what distinguishes law as a system of norms from ot her system norms, such as ethical norms. As John Austin describes, conceptual jurisprudence seeks essence or nature which is common to all laws that are properly so called. Accordingly task of conceptual jurisprudence is to provide a set of necessary and sufficient condition the existence of law that distinguishes law from non-law in every possible world.
While this task is usually interpreted as an attempt to analyze t he concepts of law and system, there is some confusion as to bot h the value and character of conceptual analy philosophy of law. As Brian Leiter points out, philosophy of law is one of t he few philosop disciplines that take conceptual analysis as its principal concern; most other areas in philos have taken a naturalistic turn, incorporating t he tools and methods of the sciences. To c the role of conceptual analysis in law, Brian Bix distinguishes a number of different purp that can be served by concep conceptual tual claims: (1) to track linguistic usage; (2) to stipulate mean (3) to explain what is important or essential about a class of objects; and (4) to establis evaluative test for the concept-word. Bix takes conceptual analysis in law to be prim concerned with (3) and (4).
In any event, conceptual analysis of law remains an important, if controversial, proje contemporary legal theory. Conceptual theories of law have traditionally been characteriz terms of their posture towards the Overlap Thesis. Thus, conceptual theories of law traditionally been divided into two main categories: those like natural law legal theory affirm there is a conceptual relation between law and morality and t hose like legal posit that deny such a relation. Read Free Foron 30this Days Sign up to vote title
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b. Classical Natural Law Theory
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etc.) Laws by which the universe is ordered. Divine law is concerned with those stand that must be satisfied by a human being to ac hieve eternal salvation. One cannot disc divine law by natural reason alone; the precepts of divine law are disclosed only through revelation. The
natural law is comprised of t hose precepts of the eternal law that govern the beh beings possessing reason and free will. The first precept of t he natural law, accordin Aquinas, is the somewhat vacuous imperative to do well and avoid evil. Here it is wort h that Aquinas holds a natural law theory of morality: what is good and evil, according to Aqu is derived from the rational nature of human beings. Good and evil are t hus both objective universal.
But Aquinas is also a natural law legal theorist. On his view, a human law (that is, that w promulgated by human beings) is valid only insofar as its content conforms to the conte the natural law; as Aquinas puts t he point: every human law has just so much of the natu law as is derived from the law of nature. But if in any point it deflects from t he law of natu is no longer a law but a perversion of law. To paraphrase Augustines famous remark , an u law is really no law at all. The
idea that a norm that does not conform to the natural law cannot be legally valid i defining thesis of conceptual naturalism. Blackstone articulates t he two claims that const the theoretical core of conceptual naturalism: 1) t here can be no legally valid standards conflict with the natural law; and 2) all valid laws derive what force and authority they from the natural law.
It should be noted that classical naturalism is consistent with allowing a substantial ro human beings in the manufacture of law. While the classical naturalist seems committed t claim that the law necessarily incorporates all moral principles, this claim does not imply the law is exhausted by the set of moral principles. There will still be coordination prob Read Free Foron 30this Days Sign up to vote title (e.g., which side of the road to drive on) t hat can be resolved in any number of waysconsi Not useful Useful Cancel anytime. with the set of moral principles. Thus, the classical naturalist does not deny t hat human b Special offer for students: Only $4.99/month. have considerable discretion in creating natural law. Rather she claims only that such discr is necessarily limited by moral norms: legal norms that are promulgated by human being
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to the sentence, t hat it is contrary to the law of God, who has commanded that lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of t of which I have impugned the validity (Austin 1995, 158).
Of course, as Brian Bix points out, the argument does little work for Austin because it is al possible for a court to enforce a law against a person t hat does not satisfy Austins own t of legal validity.
Another frequently expressed worry is t hat conceptual naturalism undermines the possibil moral criticism of the law; inasmuch as conformity with natural law is a necessary conditio legal validity, all valid law is, by definition, morally just. Thus, on this line of reasoning, t validity of a norm necessarily entails its moral justice. As Jules Coleman and Jeffrey Mu (1990, 18) put the point: The
important things [conceptual naturalism] supposedly allows us to do (e.g., morally eva the law and determine our moral obligations with respect to t he law) are actually rend more difficult by its collapse of the distinction between morality and law. If we really wa think about the law from the moral point of view, it may obscure the task if we see law morality as essentially linked in some way. Moral criticism and reform of law may be aide an initial moral skepticism about the law. There
are a couple of problems with this line of objection. First, conceptual naturalism doe foreclose criticism of those norms that are being enforced by a society as law. Insofar as i plausibly be claimed that the content of a norm being enforced by society as law does conform to the natural law, this is a legitimate ground of moral criticism: given that th being enforced by law is unjust, it follows, according to conceptual naturalism, t hat it i legally valid. Thus, the state commits wrong by enforcing t hat norm against private citizens
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Special offer formistake. students: Only $4.99/month. Conceptual jurisprudence assumes the existence of a core of social prac
(constituting law) that requires a conceptual explanation.
The
project motivating conce
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the necessary degrees and credentials, but seemed nonet heless to lack the necessary abil judgment: shes no lawyer or hes no doctor. This only indicates that we do not th the title in this case carries with it all the implications it usually does. Similarly, to say t unjust law is not really law may only be to point out that it does not carry t he same m force or offer the same reasons for action as laws consistent with higher law (Bix 1996, 22 Thus,
Bix construes Aquinas and Blackstone as having views more similar to the neo- natur of John Finnis discussed below in Section III. Nevertheless, while a plausible case can be m in favor of Bixs view, the long history of construing Aquinas and Blackstone as conce naturalists, along with its pedagogical value in developing other theories of law, ensures this practice is likely, for better or worse, to continue indefinitely.
Critical Appraisal of Natural Law Theory The
concept of natural law has been used to support different ideologies from time to tim has been used not only to support absolutism, individualism but also to overt hrow governm The natural law philosophy has contributed a lot in the development of law and legal sys The natural law principles of justice, morality and conscience have been embodied in va legal systems. Man-made positive laws are arbitrary ant contingent w hereas natural b regulated by laws of nature is inevitable and obligatory. Natural law emanating from reasoning which is known for its uniformity and general acceptance acceptance is not variable. Natura helped in denouncing the divine authority of the Church. It helped in generating a favo climate for reformation, renaissance and provided a sound foundation for fundamental rights.
Natural law also played an important part in t he development of modern law. Legal testifies that it was natural law which directly or indirectly provided a model for the first made law. Appreciating the contribution of natural law Roscoe Pound said, The uncertain the higher law is preferable to the arbitrariness and insolence of naked force. Read Free Foron 30this Days Sign up to vote title
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The
concept of morality is a varying content changing from place to place; h would be futile to think over the universal applicability of law. It depends on the so One society may adhere to monogamy while the other one may permit plurali marriages.
4. Disputes relating to laws of nature and morality cannot be subjected to judicial scr as t he verdict may always be questioned since it is based on subjective discretion o judge.
Despite the above shortcomings, it cannot be denied that natural law has play crucial role in shaping the law. Its significance lies in t he fact that an unjust law ma last long and it is bound to lose public support in the absence of obedience by people.
Natural Law Ideas in English Law
In some braches of modern English law, principles of natural justice are openly inv to test the validity of legal acts but that does not apply to test t he validity of any A parliament as Parliament is supreme in England. A custom is not permitted by court is not reasonable. By means of an order of pro hibition or certiorari, the high cou England can control administrative acts and quasi-judicial decisions of administr bodies which are contrary to t he rules of natural justice.
Natural law ideas have exercised the most profound and enduring influence English law as guiding principles in law making. The attempt of Lord Mansfie introduce the doctrine of unjust enrichment in English law was an applications o principles of natural justice.
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referred to the doctrine which we share with a wider community even t hat o
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justice. These rules can operate only in areas not covered by any law validly made. do not supplant the law of the land but supplement it. The
concept of natural justice has undergone a great deal of c hange in recent yea the past it was t hought that it included just two rules, namely: 1. No one shall be a judge in his own cause(nemo debet esse judex propria causa). 2. No decision shall be given against a party without affording hearing(audi alteram partem).
him
a reason
Very soon thereafter, a third rule was added which provides that quasi-judicial enqu must be held in good faith, without bias and not arbitrarily or unreasonably.
In Maneka Gandhi v. Union of India, the Supreme Court observed t hat na justice is a great humanising principle intended to invest law with fairness and to secure j Over the years, it has grown into a widely pervasive rule affecting large areas of administr action. The soul of natural justice is fairplay in action and it has received widest recogn throughout the democratic world. The Supreme Court held that even the procedure laid d by law must be right, just and fair. It is liable to be set aside on t he ground that it i reasonable.
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BIBLIOGRAPHY Books: 1. Jurisprudence and Legal Theory by V.D.Ma hajan. 2.
The Province of o f Jurisprudence Determined.
3. Jurisprudence:
The
Philosophy & Method of the Law by Edgar Borden heimer
Websites: 1. www.legalserviceindia.com 2. www.radicalacademy.com
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