Dr. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY FACULTY OF LAW
Research Project on THEORY OF NATURAL LAW
SUBMITTED TO SHAIL SHAKYA ASSISTANT PROFFESOR FACULTY OF LAW D.S.M.N.R.U.
SUBMITTED BY SHUBHAM PAL B.CO.LL.B.(HONS.) III SEMESTER
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TABLE OF CONTENTS 1. Introduction theory of Natural Law
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2. Ethics of Natural Law
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3. Natural rights v. Human rights
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4. Conclusion
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5. Bibliography
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THEORY OF NATURAL LAW Introduction The term "natural law" is ambiguous. It refers to a type of moral theory, as well as to a type of legal theory, but the core claims of the two kinds of theory are logically independent. It does not refer to the laws of nature, the laws that science aims to describe. According to natural law moral theory, the moral standards that govern human behavior are, in some sense, objectively derived from the nature of human beings and the nature of the world. While being logically independent of natural law legal theory, the two theories intersect. However, the majority of the article will focus on natural law legal theory.
According to natural law legal theory, the authority of legal standards necessarily derives, at least in part, from 3|Page
considerations having to do with the moral merit of those standards. There are a number of different kinds of natural law legal theories, differing from each other with respect to the role that morality plays in determining the authority of legal norms.
The conceptual jurisprudence of John Austin provides a set of necessary and sufficient conditions for the existence of law that distinguishes law from non-law in every possible world. Classical natural law theory such as the theory of Thomas Aquinas focuses on the overlap between natural law moral and legal theories. Similarly, the neo-naturalism of John Finnis is a development of classical natural law theory. In contrast, the procedural naturalism of Lon L. Fuller is a rejection of the conceptual naturalist idea that there are necessary substantive moral constraints on the content of law. Lastly, Ronald Dworkin’s theory is a response and critique of legal positivism. All of these theories subscribe to one or more basic tenets of natural law legal theory and are important 4|Page
to its development and influence.
In other words Natural law is the philosophy that certain rights, moral values, and responsibilities are inherent in human nature, and that those rights can be understood through simple reasoning. In other words, they just make sense when you consider the nature of humanity. Throughout history, the phrase “natural law” has had to do with determining how humans should behave morally. The law of nature is universal, meaning that it applies to everyone in the same way. To explore this concept, consider the following natural law definition.
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Ethics of natural law The natural law approach to solving ethical dilemmas begins with the basic belief that everyone has the right to live their life. From there, natural law theorists draw a line between an innocent life and the life of an 'unjust aggressor.' The natural law theory recognizes the legal and moral concept of self-defense, which is often used to justify acts of war.
Natural law theory is not always a simple school of thought. It should come as no surprise that the ethics associated with natural law are equally complicated. The idea that the definition of what is 'right' and what is 'wrong' is the same for 'every person' is sometimes difficult to apply to complex ethical dilemmas. ‘Natural law theory’ is a label that has been applied to theories of ethics, theories of politics, theories of civil law, and 6|Page
theories of religious morality. We will be concerned only with natural law theories of ethics: while such views arguably have some interesting implications for law, politics, and religious morality, these implications will not be our focus here.
An early attempt at answering the "Why be Moral?" challenge to Divine Command Ethics, is the Natural Law theory of ethics described by Thomas Aquinas. He theorized that the world is governed by natural laws (divinely given, of course). And that Man can discover these natural laws, and govern his life according to them. Aquinas argued that when we focus on man's role as recipient of the natural law, the natural law constitutes the principles of practical rationality. It is against the dictates of the natural law that human action is to be judged as reasonable or unreasonable. Natural law is the preeminent part of the theory of practical rationality. Thomas Hobbes can also be classified as a natural law theorist. Like Aquinas, Hobbes held that the laws of nature are 7|Page
divine law, that all humans are bound by them, and that it is easy to know at least the basics of the natural law. Of course, if one maintains the premise that these Natural Laws have God as the law giver, then there is little difference between Natural Law Ethics and Divine Command Ethics. All of the flaws infecting Divine Command Ethics will also infect Divine Natural Law Ethics.
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NATURAL RIGHTS vs. HUMAN RIGHTS First of all, natural inalienable rights do not come from government. Governments only secure these rights—that is, they create the political conditions that allow one to exercise them. Human rights, on the other hand, are bestowed by the state and have become a catch-all term for anything we desire and deem important. As a result, whereas natural rights (such as life, liberty, and property) are rights that government protects from infringement by others, human rights (such as “housing” and “leisure”) are often things that government is obligated to provide.
Secondly, natural rights, being natural, do not change over time. All men, at all times, have the same right to life, liberty, 9|Page
and the pursuit of happiness. Human rights, on the other hand, constantly change. A whole cottage industry has sprung up to advance an array of new “economic and social rights” conceived of, defined by, and promoted by government and international bureaucrats.
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CONCLUSION In the end, where does law come from? The Theory of Natural Law maintains that certain moral laws transcend time, culture, and government. There are universal standards that apply to all mankind throughout all time. These universal moral standards are inherent in and discoverable by all of us, and form the basis of a just society.
The fundamental principle of natural law ethics is that good should be done and evil avoided. This general principle may be specified into moral axioms like: “Do not kill!” “Be faithful!” “Preserve your life!” “Care for you children!” “Do not lie or steal!” “Life is a universal human good!” All of these axioms are
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both natural and good. We further specify these axioms by rational analysis and by reliance on Church, scripture, or revelation. As Aristotle pointed out, natural inclinations and tendencies are good, and we fulfill them by acquiring the elements which constitute human happiness such as: life, procreation, friendship, and knowledge. Nevertheless, within the boundaries set by human nature, the specific way one satisfies natural inclinations may differ. So a range of activities might satisfy, for instance, our aesthetic or intellectual needs. However, we all need the universal human goods. Thus, morality demands that we follow the laws of our nature which are the same for all on the basis of our shared humanity.
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BIBLIOGRAPHY Primary Sources 1. Jurisprudence and legal theory-- V.D.MAHAJAN’s 2. Jurisprudence and legal theory – N.V.PARANJAPE
Secondary sources 1. Natural law theory, available at https://www.allaboutphilosophy.org/naturallaw.htm , last seen on 22/10/2017. 2. http://study.com/academy/lesson/natural-law-theory-definition-ethics-examples.html , Last seen on 23/10/2017.
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