Natural Law Zhang Fan. Introduction Overview of Natural Law Theories Overview of Natural Law Theories Methodology Methodology Main Tenets Main Tenets

Natural LawNatural LawZhang FanZhang Fan

IntroductionIntroduction

• Overview of Natural Law TheoriesOverview of Natural Law Theories

• Methodology Methodology

• Main Tenets Main Tenets

• Major Schools and Great Thinkers Major Schools and Great Thinkers

• Historical Function of Natural Law Theories Historical Function of Natural Law Theories

• Natural Law Thinking in Ancient China Natural Law Thinking in Ancient China

• Critics of Natural Law Critics of Natural Law

Overview of Natural Law Overview of Natural Law TheoriesTheories• Natural law is that "unwritten law" that is Natural law is that "unwritten law" that is

more or less the same for everyone more or less the same for everyone everywhere. To be more exact, natural law everywhere. To be more exact, natural law is the concept of a body of moral principles is the concept of a body of moral principles that is common to all humankind and, as that is common to all humankind and, as generally posited, is recognizable by human generally posited, is recognizable by human reason alone. Natural law is therefore reason alone. Natural law is therefore distinguished from -- and provides a distinguished from -- and provides a standard for -- positive law, the formal legal standard for -- positive law, the formal legal enactments of a particular society. enactments of a particular society.

MethodologyMethodology

• Teleological view of the universe and Teleological view of the universe and human society: regarding the world, human society: regarding the world, especially human society, as having an especially human society, as having an ultimate purpose, some state of ultimate purpose, some state of perfection towards which society must perfection towards which society must inexorably advance. Law, as a devise inexorably advance. Law, as a devise for promoting the desired good, is for promoting the desired good, is regarded as being a social necessity.regarded as being a social necessity.

Main TenetsMain Tenets

• Doing Good but avoid evilDoing Good but avoid evil

• JusticeJustice

• Rule of LawRule of Law

• Natural RightsNatural Rights

• Law and Morality closely relatedLaw and Morality closely related

• Natural Law is universal, objective, Natural Law is universal, objective, immutable and eternal.immutable and eternal.









Major Schools and Great Major Schools and Great ThinkersThinkers

• Ancient Greek Roots: Socrates, Ancient Greek Roots: Socrates, Plato , Aristotle, Stoics, CiceroPlato , Aristotle, Stoics, Cicero

• Theological School: St. Augustine, Theological School: St. Augustine, AquinasAquinas

• Classical Natural Law Theory: Classical Natural Law Theory: GrotiusGrotius

• Natural Law Theory after World Natural Law Theory after World War IIWar II

Socrates and PlatoSocrates and Plato

• Socrates (470-399 BC) and Plato Socrates (470-399 BC) and Plato (428 – 348 ) argued that there were (428 – 348 ) argued that there were principles of morality which it was principles of morality which it was possible to discover through possible to discover through processes of reasoning and insight. processes of reasoning and insight. Law based on these principles would Law based on these principles would thus be the product of correct thus be the product of correct reasoning.reasoning.

Aristotle (384-322BC)Aristotle (384-322BC)

• Aristotle recognized nature as the capacity for Aristotle recognized nature as the capacity for development inherent in particular things and development inherent in particular things and aimed at a particular end or purpose, both in aimed at a particular end or purpose, both in respect to physical and moral phenomena.respect to physical and moral phenomena.

• He also made a distinction between natural He also made a distinction between natural justice and conventional justice. Natural justice and conventional justice. Natural justice is common to all humanity, a kind of justice is common to all humanity, a kind of ‘state of goodness’. Conventional justice varies ‘state of goodness’. Conventional justice varies from state to state, for particular communities.from state to state, for particular communities.

StoicsStoics

• Stoicism provided the most complete Stoicism provided the most complete classical formulation of natural law. classical formulation of natural law. The Stoics argued that the universe The Stoics argued that the universe is governed by reason, or rational is governed by reason, or rational principle; they further argued that all principle; they further argued that all humans have reason within them humans have reason within them and can therefore know and obey its and can therefore know and obey its law. law.

Cicero (106-43BC)Cicero (106-43BC)

• Cicero argued that nature provided Cicero argued that nature provided rules by which humanity ought to live; rules by which humanity ought to live; these rules, which could be discovered these rules, which could be discovered through reason, should form the basis through reason, should form the basis of all law. In of all law. In De Legibus De Legibus he argued that he argued that ‘true law is right reason in agreement ‘true law is right reason in agreement with nature, it is of universal with nature, it is of universal application, unchanging and application, unchanging and everlasting.’everlasting.’

Theological SchoolTheological School

• Christian philosophers readily adapted Christian philosophers readily adapted Stoic natural law theory, identifying Stoic natural law theory, identifying natural law with the law of God. For natural law with the law of God. For Thomas Aquinas, natural law is that part Thomas Aquinas, natural law is that part of the eternal law of God ("the reason of of the eternal law of God ("the reason of divine wisdom") which is knowable by divine wisdom") which is knowable by human beings by means of their powers human beings by means of their powers of reason. Human, or positive, law is the of reason. Human, or positive, law is the application of natural law to particular application of natural law to particular social circumstances. Like the Stoics, social circumstances. Like the Stoics, Aquinas believed that a positive law that Aquinas believed that a positive law that violates natural law is not true law. violates natural law is not true law.

St. Thomas Aquinas (1224-St. Thomas Aquinas (1224-74) 74) • Four Categories:Four Categories:

– Eternal law- God’s rational guidance of all creatures.Eternal law- God’s rational guidance of all creatures.– Divine law –that part of law manifested through Divine law –that part of law manifested through

revelations in the Christian scriptures.revelations in the Christian scriptures.– Natural law – participation of rational creatures in Natural law – participation of rational creatures in

the eternal law through the operation of reason.the eternal law through the operation of reason.– Human law – derived from both divine law and Human law – derived from both divine law and

natural law. This law may be variable in accordance natural law. This law may be variable in accordance with the time and circumstances in which it is with the time and circumstances in which it is formulated, but its essence is to be just. Thus, formulated, but its essence is to be just. Thus, lex lex injusta non est lexinjusta non est lex (an unjust law is not law). (an unjust law is not law).

Classical Natural LawClassical Natural Law

• With the secularization of society resulting With the secularization of society resulting from the Renaissance and Reformation, from the Renaissance and Reformation, natural law theory found a new basis in natural law theory found a new basis in human reason. The 17th-century Dutch jurist human reason. The 17th-century Dutch jurist Hugo Grotius believed that humans by nature Hugo Grotius believed that humans by nature are not only reasonable but social. Thus the are not only reasonable but social. Thus the rules that are "natural" to them -- those rules that are "natural" to them -- those dictated by reason alone -- are those which dictated by reason alone -- are those which enable them to live in harmony with one enable them to live in harmony with one another. From this argument, by the way, another. From this argument, by the way, Grotius developed the first comprehensive Grotius developed the first comprehensive theory of international law.theory of international law.

Natural RightsNatural Rights

• Natural law theory eventually gave rise to a Natural law theory eventually gave rise to a concept of "natural rights." John Locke concept of "natural rights." John Locke argued that human beings in the state of argued that human beings in the state of nature are free and equal, yet insecure in nature are free and equal, yet insecure in their freedom. When they enter society their freedom. When they enter society they surrender only such rights as are they surrender only such rights as are necessary for their security and for the necessary for their security and for the common good. . Each individual retains common good. . Each individual retains fundamental prerogatives drawn from fundamental prerogatives drawn from natural law relating to the integrity of natural law relating to the integrity of person and property (natural rights). person and property (natural rights).

Inalienable RightsInalienable Rights

• This natural rights theory provided a This natural rights theory provided a philosophical basis for both the philosophical basis for both the American and French revolutions. American and French revolutions. Thomas Jefferson used the natural Thomas Jefferson used the natural law theory to justify his trinity of law theory to justify his trinity of "inalienable rights" which were "inalienable rights" which were stated in the United States stated in the United States Declaration of Independence.Declaration of Independence.

Natural Law Theory after Natural Law Theory after WWIIWWII

• Lon Fuller – Inner Morality of law, Lon Fuller – Inner Morality of law, ProceduralismProceduralism

• John Finnis – Aquinas, John Finnis – Aquinas, ConceptualismConceptualism

• Ronald Dworkin: Law as IntegrityRonald Dworkin: Law as Integrity

Lon FullerLon Fuller• Fuller calls his principles 'procedural' rather Fuller calls his principles 'procedural' rather

than substantive. He also calls the morality than substantive. He also calls the morality that's required for law, 'internal morality.' that's required for law, 'internal morality.' Substantive principles describe what is right Substantive principles describe what is right and what is wrong. They tell us how to and what is wrong. They tell us how to regulate our conduct, i.e., whether polygamy regulate our conduct, i.e., whether polygamy is wrong. Procedural principles give criteria for is wrong. Procedural principles give criteria for forming substantive moral principles into law. forming substantive moral principles into law. Fuller's view is that natural justice enters the Fuller's view is that natural justice enters the law at the procedural level. There are certain law at the procedural level. There are certain procedural principles which are necessary for procedural principles which are necessary for anything to be a law in the first place. These anything to be a law in the first place. These principles make the law procedurally just, principles make the law procedurally just, even if not substantively justeven if not substantively just

John FinnisJohn Finnis

• Arguing about what is "law" or "not Arguing about what is "law" or "not law" is silly; what matters is what law" is silly; what matters is what judges (and other officials) may or judges (and other officials) may or must take into account must take into account

• Natural lawyers believe in a mind-Natural lawyers believe in a mind-independent moral reality that independent moral reality that provides objectively valid standards provides objectively valid standards of right conductof right conduct


• Natural law is a set of principles of Natural law is a set of principles of practical reasonableness to be utilized in practical reasonableness to be utilized in the ordering of human life and human the ordering of human life and human community in the process of creating community in the process of creating optimum conditions for humans to attain optimum conditions for humans to attain the objective goods. These conditions the objective goods. These conditions constitute the ‘common good’. Finnis constitute the ‘common good’. Finnis lists seven objective goods which he lists seven objective goods which he regards as being irreducible basic. These regards as being irreducible basic. These are:are:


• Life- the first basic value;Life- the first basic value;• Knowledge- a preference for true over false believe;Knowledge- a preference for true over false believe;• Play- performance for the sake of it;Play- performance for the sake of it;• Aesthetic experience – the appreciation of beauty;Aesthetic experience – the appreciation of beauty;• Friendship or sociability – acting for the sake of Friendship or sociability – acting for the sake of

one’s friends’ purpose or well being;one’s friends’ purpose or well being;• Practical reasonableness – the use of one’s Practical reasonableness – the use of one’s

intelligence to choose actions, lifestyle, character, intelligence to choose actions, lifestyle, character, etc;etc;

• Religion – the ability to reflect on the origins of the Religion – the ability to reflect on the origins of the cosmic order and human freedom and reason.cosmic order and human freedom and reason.

Ronald DworkinRonald Dworkin

• Ronald Dworkin made strong criticisms Ronald Dworkin made strong criticisms to both Natural Law and Legal to both Natural Law and Legal Positivism and many people say that Positivism and many people say that Dworkin's theory occupies a middle Dworkin's theory occupies a middle ground between Natural Law and Legal ground between Natural Law and Legal Positivism as the third theory of law. Positivism as the third theory of law.

• From rules to principles to moral fiber From rules to principles to moral fiber to Hercules---the idea of integrityto Hercules---the idea of integrity

Ronald DworkinRonald Dworkin

• Dworkin is most famous for his theory of law Dworkin is most famous for his theory of law as integrity, which is given its fullest as integrity, which is given its fullest statement in his book statement in his book Law's EmpireLaw's Empire. Dworkin's . Dworkin's theory is interpretive. He argues that law is theory is interpretive. He argues that law is best understood as an interpretation of the best understood as an interpretation of the political practices of a society. Thus, in political practices of a society. Thus, in deciding a legal case, judges decide in accord deciding a legal case, judges decide in accord with the interpretation of the society's with the interpretation of the society's institutions and legal texts that best fits and institutions and legal texts that best fits and justifies the society's history and practices.justifies the society's history and practices.









Historical Function of Historical Function of Natural Law TheoriesNatural Law Theories

• Divinization of LawDivinization of Law

• Secularization of LawSecularization of Law

• Demystification of LawDemystification of Law

Divinization of LawDivinization of Law

Secularization of LawSecularization of Law

Demystification of LawDemystification of Law

Natural Law Thinking in Natural Law Thinking in Ancient ChinaAncient China

• Lao ZiLao Zi

• ConfuciusConfucius

Lao Zi – Non-interferenceLao Zi – Non-interference

• Man has been granted a simple nature, and all Man has been granted a simple nature, and all social activities follow their own natural law. social activities follow their own natural law. Non-Interference (or less interference, when Non-Interference (or less interference, when absolute non-interference is unavoidable), absolute non-interference is unavoidable), would lead things in their original direction. In would lead things in their original direction. In this way, society and nature would be in good this way, society and nature would be in good order, and no conflict would take place. So order, and no conflict would take place. So Laozi said: If I do things by Non-Interference, Laozi said: If I do things by Non-Interference, people will follow me naturally; If I incline to people will follow me naturally; If I incline to Tranquility, people will be led in the proper Tranquility, people will be led in the proper direction; If I interfere with nothing, people will direction; If I interfere with nothing, people will become rich; If I have no sensual desire, people become rich; If I have no sensual desire, people will become simple and sincere. will become simple and sincere.

ConfuciusConfucius

• "Sir, what need is there of the death "Sir, what need is there of the death penalty in your system of government? If penalty in your system of government? If you showed a sincere desire to be good, you showed a sincere desire to be good, your people would likewise be good. The your people would likewise be good. The virtue of the prince is Like unto wind; that virtue of the prince is Like unto wind; that of the people, like unto grass. For it is the of the people, like unto grass. For it is the nature of grass to bend, when the wind nature of grass to bend, when the wind blows upon it." blows upon it."

Critics of Natural LawCritics of Natural Law• Fuller has been criticized for overlooking Fuller has been criticized for overlooking

that even laws which adhere to the inner that even laws which adhere to the inner morality, may be unjust.morality, may be unjust.

• Natural law can’t guide judicial decision in Natural law can’t guide judicial decision in specific cases.specific cases.

• It is wrong for natural law theorists to It is wrong for natural law theorists to argue that there is a strong connection argue that there is a strong connection between law and morality.between law and morality.

• Morality is subjective and varies with Morality is subjective and varies with different people and therefore cannot be different people and therefore cannot be eternal.eternal.

FinFin

MerciMerci

Documents

Natural Law Zhang Fan. Introduction Overview of Natural Law Theories Overview of Natural Law Theories Methodology Methodology Main Tenets Main Tenets