Natural Law

1. Natural Law Zhang Fan

2. Introduction • Overview of Natural Law Theories • Methodology • Main Tenets • Major Schools and Great Thinkers • Historical Function of Natural Law Theories • Natural Law Thinking in Ancient China • Critics of Natural Law

3. Overview 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.

4. Methodology • Teleological 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.

5. Main Tenets • Doing Good but avoid evil • Justice • Rule of Law • Natural Rights • Law and Morality closely related • Natural Law is universal, objective, immutable and eternal.

6. Introduction • Overview of Natural Law Theories • Methodology • Main Tenets • Major Schools and Great Thinkers • Historical Function of Natural Law Theories • Natural Law Thinking in Ancient China • Critics of Natural Law

7. Major Schools and Great Thinkers • Ancient Greek Roots: Socrates, Plato , Aristotle, Stoics, Cicero • Theological School: St. Augustine, Aquinas • Classical Natural Law Theory: Grotius • Natural Law Theory after World War II

8. Socrates and Plato • Socrates (470-399 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.

9. Aristotle (384-322BC) • 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.

10. Stoics • Stoicism 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.

11. Cicero (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.’

12. Theological School • Christian 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.

13. St. 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).

14. Classical Natural Law • With 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.

15. Natural Rights • Natural 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).

16. Inalienable Rights • This 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.

17. Natural Law Theory after WWII • Lon Fuller – Inner Morality of law, Proceduralism • John Finnis – Aquinas, Conceptualism • Ronald Dworkin: Law as Integrity

18. Lon Fuller • Fuller 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

19. John Finnis • Arguing about what is "law" or "not law" is silly; what matters is what judges (and other officials) may or must take into account • Natural lawyers believe in a mind-independent moral reality that provides objectively valid standards of right conduct

20. John Finnis • Natural 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:

21. John 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.

22. Ronald Dworkin • Ronald 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

23. Ronald Dworkin • Dworkin 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.

24. Introduction • Overview of Natural Law Theories • Methodology • Main Tenets • Major Schools and Great Thinkers • Historical Function of Natural Law Theories • Natural Law Thinking in Ancient China • Critics of Natural Law

25. Historical Function of Natural Law Theories • Divinization of Law • Secularization of Law • Demystification of Law

26. Divinization of Law

27. Secularization of Law

28. Demystification of Law

29. Natural Law Thinking in Ancient China • Lao Zi • Confucius

30. Lao 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.

31. Confucius • "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."

32. Critics of Natural Law • Fuller 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.

33. FinMerci