Lex Naturalis, Ius Naturalis: Law as Positive Reasoning & Natural Rationality

Natural Law: Dead or Alive?
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Scholars of jurisprudence, or legal philosophers, hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions. As jurisprudence has developed, there are three main aspects with which scholarly writing engages:. Modern jurisprudence and philosophy of law is dominated today primarily by Western academics. The ideas of the Western legal tradition have become so pervasive throughout the world that it is tempting to see them as universal. Historically, however, many philosophers from other traditions have discussed the same questions, from Islamic scholars to the ancient Greeks.

KidzSearch Safe Wikipedia for Kids. Indeed, in the initial citation from the Compendium of the Social Doctrine of the Church, the relation of the Ten Commandments--which are revelation--to the natural law--which is reason--is that the former reinforces and confirms what is already in some real sense known in the latter. As such, we do not need the Ten Commandments to know what theft, murder, or adultery is. But the Commandments both reinforce our knowledge and strengthen our wills to act according to our reason.

Ethical "knowledge" is always related to doing. Aquinas says that the natural law is the eternal law looked at from the point of view of the creature-subject. Or better, the creature's very being, his "natural law," is a reflection of the eternal law that makes him to be this rather than that. He is what he is because of how the eternal law conceived him. Even though Hugo Grotius, in a famous and oft-cited remark, said the "natural law would be the natural law, even if God did not exist," this is not the Thomist view. The natural law does not create itself to be what it is. The eternal law is the understanding in the mind of God of all those things in their diversity that are outside of God.

As such, God did not need to create anything outside of Himself. God could have conceived something but decided never to create it. On the other hand, nothing exists but what is first conceived or anticipated in eternal law. Otherwise something would come from nothing. The divine law, likewise, need not have been. When Aquinas talks of the divine law, he asks a very specific question: is it "reasonable," that is, does it makes sense, for God, with some to us intelligible reason, to have given mankind--in addition to eternal, natural, and human law--a divine law?

Here a philosopher, considering the situation, really wants to know the relation of reason and revelation. Are they compatible? The natural law does not exactly "reflect" the divine law. Rather, it explains why natural law, in addition to itself and positive or human law, might "need," or why it might be advisable to have, further explanations. These explanations were designed to help complete man's actual purpose in this world.

They were designed ultimately to achieve man's particular destiny, the transcendent inner life of the Trinity offered to him as a gift.. Thus, Aquinas listed the four famous areas in which natural law might conceivably be open to further elucidations. These elaborations would at least make plausible why revelation might in fact have happened.

That is, why is it not irrational to accept revelation on these points? What Aquinas was really driving at was thus whether it was "reasonable," or whether it made sense, that God, without contradicting Himself or without being accused of initial negligence, might take the trouble to teach us more than what we could know by our own limited rational powers? But what was actually revealed in the Old and New Testaments was not "contradictory" to reason actively thinking on itself along its already established lines.

Aquinas thought several arguments could at least suggest to us that God might further instruct us in a way that, when spelled out, would make sense to us. Four reasons were given to consider: 1 that we need a more clear understanding of God than the vague, but valid, notion found in the philosophers by their methods; 2 that the positive law could only deal with external actions whereas the divine law commanded that we also have our inner souls in order since this is where all disorders originated ; 3 that we needed a more careful description of what we ought to do in every day life, hence the commandments; and, finally 4 that we needed to know about heaven and hell, that ultimately unrepentant crimes would be punished and unacknowledged good works would be rewarded.

Otherwise, the universe would seem to be poorly made. The term "divine law" in Aquinas is thus a specialized term. In a sense we could say, more properly, that the natural law, under conditions of time and finiteness, did not reflect adequately the eternal law. Thus, we needed a divine law addressed to our understanding about why we have so much difficulty in observing the natural law of our being. But if it is "natural," why would we need more guidance?

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Two reasons are given. One has to do with the very nature of a finite being who has intelligence, and the other with the Fall, which involved us in an original disorder of soul that we repeat when we choose ourselves over what is right. Be that as it may, the Pope began his lecture by noting man's increasing capacity "to decipher the rules and structures of matter and in the consequent domination of man over nature. He sees its Platonic origins. What is at stake is that when scientists undertake to examine nature, there is something there to find--something that is outside the scientists' own minds.

This is why they can, in fact, check or verify to others their own work to see whether it is true or not. The Holy Father also concludes that this scientific knowledge gives man "domination over nature," words that recall the passage in Genesis in which man is given "dominion" over all things. Benedict, likewise, sees a darker side of this "dominion," as it recalls the project of Bacon that man can seemingly "improve" his estate apart from nature. The Pope next shifts attention from nature itself to the modern "methods" of analyzing it.

Here, though he acknowledges the advantages, he is concerned with "method. Evidently nothing is wrong with knowing more about nature or its "rational structures. It obscures the question of the origin of nature itself. The method limits itself--a scientific "self-limitation"--to only the nature of mathematical objects, which as such prescind from motion.

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It does not see all that is there to see. Spiritual and free choices are not "material. They do not appear under the method's scope or field. Thus, for many people today, the world is "incomprehensible. Thus the dualism of Aristotle had taken definite form. There was an immutable law which was of divine origin or the product of right reason, but whatever its source it was common to all men and universal.

And there were positive enactments which were made by man to meet the contingencies of the moment. The two systems were in constant conflict — one a perfect and rational order and the other an imperative and positive one. Natural law, emanating from the divine will or from divine reason, consisted only of certain basic principles. Positive law elaborated this natural law and through practical reason adapted it to the ordinary activities of life. Differing from the idealistic interpretations of the concept in Greece and in Rome natural laws were conceived as norms and positive laws that were not in accord with the natural law were unjust and therefore had no validity, though the means to prevent their enforcement were not always at hand.

Thus a criterion was available to measure, in a theoretical way at least, the validity of civil enactments. It is difficult to classify the various types of natural law theories which prevailed in ancient and mediaeval times, but it seems essential to undertake a tentative classification. With the early Greeks natural law was law in accordance with nature in the physical sense, similar to the laws of the natural sciences in modern terminology. Such a meaning of the laws of nature has been seldom referred to since the time of the Greeks, though it has had counterparts in Ulpian's laws common to all animals, in the eternal laws of Aquinas from a quite different setting, and in a curious medley of ideas in the nineteenth century, when natural law comprised a resume of ideas relating to the physical universe, of moral and ethical concepts, and of legal doctrines and principles.

Natural law was also considered as divine in origin and either comprised rules given to man by the Deity or his representatives or consisted of divine law from which principles of right and justice might be deduced by man's reason. This source of natural law only incidentally mentioned by the Greeks became to the theologians of the Middle Ages its main origin and sanction. Following the authoritative presentation of this view by Thomas Aquinas and other mediaeval theologians it has continued as the accepted view of Catholic jurists and of others who have chosen to emphasize the religious factors in the processes of lawmaking.

Believers in this type of natural law may be found in all countries wherein the philosophy and traditions of the Middle Ages are fostered by religious and ethical agencies. The Greeks also set a standard for a natural law of an idealist type — comprised of universal and immutable principles apprehended chiefly by philosophers and jurists.

It was a law which reasonable creatures were everywhere bound to obey. Positive laws to have validity emanated from the ideal natural laws. This type of natural law was closely related to the current ideas of religion and morality and became prominent in Stoic political thought. During the Middle Ages it was conceived as an absolute law of reason which on account of its rational basis binds all reasonable beings. Differing in certain respects from the immutable natural law of the Stoics, a type of natural law was formulated by ancient and mediaeval thinkers which was comprised of rules or principles of law and justice, divorced partially, at least, from divine origins.

These were sometimes referred to as the unwritten laws ingrained in the hearts of men. Such principles were used by the praetors and jurists in rendering decisions which were just and equitable, and in adapting the rigid formulas of the jus civile to form the jus gentium. It was this kind of natural law — principles of common law recurring among different nations — on which international law and certain parts of developing public law were based in the sixteenth century.

It is a type which is always present in the practical applications of the law where it is molded to accord with advancing notions of morality in human conduct.

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Stripped of some of its immutable characteristics, its modern use may be found in the principles of reasonable conduct applied in English law and in the authority accorded the judges in certain European countries to fall back on principles of reason and justice to fill gaps in the law. Continental jurists also make frequent use of the rationalist form of natural law to measure the efficacy of existing positive enactments.

It thus becomes the prototype for a "natural law with a variable content. There was also a natural law arising from an original and primitive state of nature from which men derived natural rights — such as rights of equality and freedom.

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To the mediaevalists this state of nature corresponded to the condition of men before the origin of sin. Sometimes these rights were regarded as an inheritance of the individual from his birth and of such significance that it was the prime duty of the state to protect them. The Reformation encouraged the tendency to consider such rights as natural and as belonging to the individual as such. It remained for the English, French, and American philosophers to make them the foundation of civil government.

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Natural law was also conceived as a theoretic foundation for axiomatic truths from which a system of positive law could be deduced. From this viewpoint the lex naturalis existed prior to the formation of the state and from it directly or indirectly came all legal rules. It would be a mistake to think that the different types of natural law were either clearly defined by ancient and mediaeval writers or were formulated in such a way as to be readily differentiated. Most of the ideas relating to natural law, then as since, were vague and theories often involved a confusion of ideas which make it almost impossible to attempt any classification of views.

Certain trends are evident, however, which may be indicated. And, above all, it is apparent that, owing to the continual efforts to contrast the natural and the conventional, the ancient and mediaeval periods furnished rich soil for the germination of natural law concepts.

natural law

This view is also shared by some Protestants , [] and was delineated by Anglican writer C. Tauchnitz, , repr. Instead, they both prefer to follow a more Kantian line of justification. This mimicry of God 's own life is impossible to accomplish except by means of the power of grace. Thomas R. Because of the intersection between natural law and natural rights, natural law has been claimed or attributed as a key component in the Declaration of Independence of the United States , the Declaration of the Rights of Man and of the Citizen of France , the Universal Declaration of Human Rights of the United Nations , as well as the European Convention on Human Rights of the Council of Europe.

Natural law theories had passed through a cycle from the ideal and philosophical form of the Greeks and Romans to a standard, presumedly derived from divine sources, which the mediaeval canonists used as a criterion to measure the validity of the acts of civil and secular rulers, and thence to a series of rationalist concepts forming a basis for international law and for other branches of civil law.

The cycle was barely completed when a new turn in legal and political speculation changed the course of natural law thinking and gave a marked impetus to the emphasis upon certain higher law concepts. As the new meaning accorded to these concepts resulted from the social and political developments in England, in America, and in France, it is necessary to trace briefly the course of the development of natural law doctrines in these countries. For sketches of the origin of the higher law ideas in relation to "the law of nature," see John W.

Reprinted in Columbia Law Review , 1 January, , See also Guilio de Montemayor, Storia del diritto naturale Naples, Among the most common ideas involved in the word "natural," when used in such phrases as "natural justice," "natural right," and "natural law" are: rational; reasonable; in accordance with nature; in agreement with ancient customs; just; equitable; divine, or in accord with the will of God; ideal, as differentiated from the actual; appropriate; and, necessary.

For a summary of the various ideas involved in the term "natural" in this connection, see B F. Wright, Jr.

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For an account of the evolution of Greek ideas relating to natural law, consult E. See Burle, op. The Pythagoreans taught that "law ought to be in conformity with nature and it will be if it is made in the image of natural law which attributes to each according to his merit" ibid. For the views of the Sophists see ibid. Greek philosophers, it is observed, constantly referred to an eternal law, the reason of a supreme being, and absolute and immutable law, which it was the duty of the public authorities to recognize and enforce in defining the relations and duties of human beings.

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In the Socratic philosophy an act which resulted in injustice had only the appearance of a law ibid. John L. For reference to the antithesis between the two concepts, see Ernest F. Vinogradoff thinks the contrast between fusiV and nomoV may be traced to Demokritos ibid. Xenophon, Memorabilia , 4. Sophocles, Antigone , pp. Barker, op. Myres, op. Nicomachean Ethics , 7; Burle, op. There is, Aristotle maintained, a natural law anterior to the positive laws and from which the latter take their origin.

To render a political order stable there must be administered in it a justice independent of arbitrary rules or of human enactments and superior to every individual interest ibid.

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Vinogradoff, Jurisprudence of the Greek City , p. To Plato the rule of law meant that every authority in the state was exercised under a code of laws which was definitely established and which was fundamental. In the Republic and the Politicus Plato rejected to a certain extent this idea of the sovereignty of law. Sohm's Institutes , 3d ed. Ledlie London, , pp.

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Lex Naturalis, Ius Naturalis: Law as Positive Reasoning & Natural Rationality [ Eric Engle, Donna M Lyons, Jacob D Zilhardt, Aron Ping D'Souza] on Amazon. com. Lex Naturalis, Ius Naturalis: Law As Positive Reasoning & Natural Rationality [ Eric Engle] on ykoketomel.ml *FREE* shipping on qualifying offers. This is a.

The Romans, it is observed, were influenced "by the Stoic conception of life according to nature with its corollary of a natural law — rules of conduct implanted in man by nature. This notion of a jus naturale , principles intuitive in man, his very nature, and capable of universal application appears frequently in Roman sources. Occasionally it is declared to be a principle on which all law rests, but the habitual attitude of the Roman lawyers is different: jus naturale is the ideal to which it is desirable that law should conform, but it was not really at any time a test of the validity of a rule of law.

Leipzig, , pp. For an analysis of the original Stoic concepts of a "law of right reason" see Burle, op. Cicero was, of course, not presenting original ideas but was putting into current phraseology some of the commonplace political ideas of the time. De Legibus II, 4, 10; Carlyle, op. Salmond, op. But that law which natural reason has established for all men, is observed by all peoples alike and is called the law of nations jus gentium , as being that which all nations use.

Carlyle, op. Pollock thinks that Ulpian's distinction was not generally understood by the Roman lawyers of his day and that its incorporation into the Digest and the Institutes gave it a currency quite beyond its intrinsic merit. Digest 1, 1, 4. On the relations between the jus naturale and jus gentium in Roman law see Pollock, "History of the Law of Nature," in Essays in the Law.

By the Roman lawyers, Ulpian, Tryphoninus, and Florentinus, men are considered by nature free and equal. Quod ad jus naturale attinet, omnes homines aequales sunt. Cum jure naturali omnes liberi nascentur. For reference to the Greek origin of the phrase in Justinian's Digest , that this is law, to which it is proper that all men conform Digest , 1. For opinions holding that imperial rescripts contrary to natural law are void, see ibid.

The Greeks and the Romans seldom conceived of legal rights inhering in the individual and hence they did not formulate notions of natural rights. On this distinction, see J. An original conception of a primitive state of nature is found in the writings of Seneca. For extracts from these writers, see Carlyle, op. Singer observes that the authors and contributors of the Codex iuris canonici were instructed to state the law so as to agree with the principles of natural law. An effort was made to reconcile the jus divinum or revealed law with jus naturale or rules resulting from the rational processes of man.

Summa Theologiae , 1, 2, q. The theories of Thomas Aquinas are based to a considerable extent upon the doctrines of predecessors in the twelfth and thirteenth centuries whose works are usually neglected. Alessandro Bonnucci also traces the scholastic philosophy of natural law in La derogabilita del diritto naturale nella scholastica Perugia, Rufinus was one of the first to suggest that jus naturale was "a certain quality implanted in mankind by nature, which leads men to do what is good and to avoid what is evil.

Maitland Cambridge, , pp. And men also taught that the highest power on earth was subject to the rules of Natural Law.

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They stood above the Pope and above the Kaiser, above the Ruler and above the Sovereign People, nay, above the whole Community of Mortals. Neither statute nor act of government, neither resolution of the People nor custom could break the bounds that thus were set. Whatever contradicted the eternal and immutable principles of Natural Law was utterly void and would bind no one.

The mediaeval theory declared 'that every act of the Sovereign which broke the bonds drawn by Natural Law was formally null and void. As null and void, therefore, every judge and every other magistrate who had to apply the law was to treat, not only every unlawful executive act, but every unlawful statute, even though it were published by the Pope or Emperor. Breslau, , chap. See also, Theodore F.

Carlyle, "The Political Theories of St. For an exhaustive analysis of the theories of Althusius and of the "Monarchomachs," consult Gierke, Johannes Althusius. The whole view of the Vindiciae contra Tyrannos , says Laski, "is built on the assumption that it is the duty of the magistrate to represent the popular idea of right. It was so, if, with Hugh de St. Victor, Gabriel Biel and Almain, they placed the constitutive moment of the Law of Nature in the Being of God, but discovered dictates of Eternal Reason declaring what is right, which dictates were unalterable even by God Himself.

Lastly it was so, if, with Aquinas and his followers, they on the one hand derived the content of the Law of Nature from the Reason that is immanent in the being of God and is directly determined by that Natura Rerum which is comprised in God Himself, but on the other hand traced the binding force of this law to God's Will.

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Thus Baldus claimed that on the authority of the law of nature neither the Emperor nor the Pope could validate the taking of usury. For interesting efforts to justify slavery and the ownership of property though contrary to the law of nature see Carlyle, op. I, chaps. II, chaps. See also, Gierke, Johannes Althusius , pp. For the distinction between principal and secondary rules of the law of nature, see ibid.