Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

 

THE NATURAL LAW SCHOOL

Nnamdi Ebo 2Lawyer Zone  | By Nnamdi Ebo | The Natural Law School.

Natural law or the law of nature (Latin: lex naturalis) is a rule or body of rules of conduct inherent in human nature and essential to or binding upon human society. Natural law has also been described as a law whose content is set by nature and that therefore has validity everywhere.74The concept refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. The phrase natural law is opposed to the positive law (meaning “man-made law”, not “good law”; of a given political community, society, or nation-state.

Aristotle: Greek philosophy emphasized the distinction between “nature” (physis) on the one hand and “law”, “custom”, or “convention” (nomos) on the other. What the law commanded varied from place to place, but what was “by nature” should be the same everywhere. A “law of nature” would therefore have had the flavor more of a paradox than something which obviously existed. Against the conventionalism that the distinction between nature and custom could engender, Socrates and his philosophic heirs, Plato and Aristotle, posited the existence of natural justice or natural right (Latin ius naturale).

Of these, Aristotle is often said to be the father of natural law.75 Aristotle’s association with natural law is due largely to the interpretation given to his works by Thomas Aquinas. Aristotle notes that natural justice is a species of political justice, viz. the scheme of distributive and corrective justice that would be established under the best political community; were this to take the form of law, this could be called a natural law, though Aristotle does not discuss this and suggests in the Politics that the best regime may not rule by law at all.

Cicero: Cicero wrote in his De Legibus76 that both justice and law derive their origin from God.77 For Cicero, natural law obliges us to contribute to the general good of the larger society. The purpose of positive laws is to provide for “the safety of citizens, the preservation of states, and the tranquility and happiness of human life.” In this view, “wicked and unjust statutes” are “anything but ‘laws,'” because “in the very definition of the term ‘law’ there inheres the idea and principle of choosing what is just and true.” Law, for Cicero, “ought to be a reformer of vice and an incentive to virtue.” Cicero expressed the view that “the virtues which we ought to cultivate, always tend to our own happiness, and that the best means of promoting them consists in living with men in that perfect union and charity which are cemented by mutual benefits.”

74. “Natural Law,” International Encyclopedia of the Social Sciences.

75 Shellens, “Aristotle on Natural Law.”

76. ‘De Legibus’ (Latin: On the laws) is a dialogue written by Marcus Tullius Cicero during the last years of the Roman Republic. He was a Roman writer, statesman, and orator. He studied law, oratory, literature, and philosophy in Rome.

77 Francis Barham, Introduction to The Political Works of Marcus Tullius Cicero,

English legal philosophy

Charles H. McIlwain has referred to Bracton’s De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England), as “the most important law-book of medieval England.” Bracton’s translator notes that Bracton “was a trained jurist with the principles and distinctions of Roman jurisprudence firmly in mind”; but Bracton adapted such principles to English purposes rather than copying slavishly. In particular, Bracton turned the imperial Roman maxim that “the will of the prince is law” on its head, insisting that the king is under the law. Sir Edward Coke famously quoted this point from Bracton in a face-to-face dispute with King James I.

The legal historian Charles F. Mullett has noted Bracton’s “ethical definition of law, his recognition of justice, and finally his devotion to natural rights.” Bracton considered justice to be the “fountain-head” from which “all rights arise.” For his definition of justice, Bracton quoted the twelfth-century Italian jurist Azo: “‘Justice is the constant and unfailing will to give to each his right.'” Bracton’s work was the second legal treatise studied by the young apprentice lawyer Thomas Jefferson – who later became the 3rd U.S. President (1743–1826).

American legal philosophy

The U.S. Declaration of Independence states that it has become necessary for the United States to assume “the separate and equal station to which the Laws of Nature and of Nature’s God entitle them”. Some early American lawyers and judges perceived natural law as too tenuous, amorphous and evanescent a legal basis for grounding concrete rights and governmental limitations.78 Natural law did, however, serve as authority for legal claims and rights in some judicial decisions, legislative acts, and legal pronouncements. Robert Lowry Clinton argues that the U.S. Constitution rests on a common law foundation and the common law, in turn, rests on a classical natural law foundation.

Islamic natural law

Natural law is the law of the jungle – according to Abū Rayhān al-Bīrūnī, an Islamic scholar and polymath scientist. He understood natural law in that light. He argued that the antagonism between human beings can only be overcome through a divine law, which he believed to have been sent through prophets. This is also the position of the Ashari school, the largest school of Sunni theology.79 Averroes (Ibn Rushd), in his treatise on Justice and Jihad and his commentary on Plato’s Republic, writes that the human mind can know of the unlawfulness of killing and stealing and thus of the five maqasid or higher intents of the Islamic sharia or to protect religion, life, property, offspring, and reason.

_________________________________________

78. Douglas E. Edlin (Jul., 2006), “Judicial Review without a Constitution”, Polity (Palgrave Macmillan Journals) 38 (3): 345–368.

79. Corbin, Henry, History of Islamic Philosophy, Translated by Liadain Sherrard, Philip Sherrard, London; Kegan Paul International in association with Islamic Publications for The Institute of Ismaili Studies, pp. 39

The Maturidi school, the second largest school of Sunni theology, posits the existence of a form of natural law. Abu Mansur al-Maturidi stated that the human mind could know of the existence of God and the major forms of ‘good’ and ‘evil’ without the help of revelation. Al-Maturidi gives the example of stealing which is known to be evil by reason alone due to man’s working hard for his property. Killing, fornication, and drinking alcohol were all ‘evils’ which the human mind could know of according to al-Maturidi.

The concept of Istislah in Islamic law bears some similarities to the natural law tradition in the West, as exemplified by Thomas Aquinas. However, whereas natural law deems good that which is known self-evidently to be good, according as it tends towards the fulfilment of the person, istislah calls good whatever is connected to one of five “basic goods”. Al-Ghazali abstracted these “basic goods” from the legal precepts in the Qur’an and Sunnah: they are religion, life, reason, lineage and property. Some add also “honour”. Ibn Qayyim Al-Jawziyya also posited that human reason could discern between ‘great sins’ and good deeds.

Thomas Hobbes

Thomas Hobbes in his treatises Leviathan and De Cive defined natural law as “a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or takes away the means of preserving the same; and to omit that by which he thinks it may best be preserved.80 Thomas Hobbes propounded nineteen (19) Laws of nature. The first two are expounded in chapter XIV of Leviathan: 1. the first and second natural laws and of contracts. 2. The others in chapter XV (other laws of nature).

  • The first Law of nature is that every man ought to preserve peace, and where he cannot, he may seek to use the advantages of war.
  • The second Law of nature is that a man should be prepared, when others are so too, for peace, and defence, to lay down this right; and be contented with liberty against other men, as he would allow other men against himself.
  • The third Law is that men perform their covenants with other men. In this law of nature, when a covenant is made, to break it is unjust. Injustice is non performance of a covenant. And whatsoever is not unjust is just.
  • The fourth Law is that a man who receives benefit of grace from another man, should have no reasonable cause to repent him of his good will. Breach of this law is called ingratitude.
  • The fifth Law is that every man should strive to accommodate himself to the rest. The observers of this law may be called sociable while the contrary is unsociable.
  • The sixth Law is that upon caution of the future time, a man ought to pardon the past offences, if there is repentance.
  • The seventh Law is that in revenge, men ought to look not at the greatness of the evil past, but the greatness of the good to follow.
  • The eighth Law is that no man by deed, word, countenance, or gesture, should declare hatred or contempt of another.

_________________________________________

80. Thomas Hobbes, Leviathan, pt. 1, ch. 14 (p. 64)

  • The ninth Law is that every man should acknowledge another for they are all equal by nature. The breach of this precept is pride.
  • The tenth law is that at the entrance into the conditions of peace, no man require to reserve to himself any right, which he is not content should be reserved to every one of the rest. The breach of this precept is arrogance, and observers of the precept are called modest.
  • The eleventh law is that if a man be trusted to judge between man and man, that he deals equally between them.
  • The twelfth law is that such things as cannot be divided, be enjoyed in common, if it can be; and if the quantity of the thing permits, to share proportionally to the number of them that have right.
  • The thirteenth law is the entire right, or else…the first possession (in the case of alternating use), of a thing that can neither be divided nor enjoyed in common should be determined by lottery.
  • The fourteenth law is that those things which cannot be enjoyed in common, nor divided, ought to be adjudged to the first possessor; and in some cases to the first born, as acquired by lot.
  • The fifteenth law is that all men that mediate peace be allowed safe conduct.
  • The sixteenth law is that they that if there is controversy, then men should submit their Right to the judgment of an Arbitrator.
  • The seventeenth law is that no man is a fit Arbitrator in his own cause.
  • The eighteenth law is that no man should serve as a judge in a case if greater profit, or honor, or pleasure apparently arises [for him] out of the victory of one party, than of the other.
  • The nineteenth law is that in a disagreement of fact, the judge should not give more weight to the testimony of one party than another, and absent other evidence. He should give credit to the testimony of other witnesses.

Progressive natural law

Hugo Grotius based his philosophy of international law on natural law. In particular, his writings on freedom of the seas and just war theory directly appealed to natural law. About natural law itself, he wrote that “even the will of an omnipotent being cannot change or abrogate” natural law, which “would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs.” From his point of view, that made natural law no longer dependent on theology.

John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government. There is considerable debate about whether his conception of natural law was more akin to that of Aquinas. Locke turned Hobbes’ prescription around, saying that if the ruler went against natural law and failed to protect “life, liberty, and property,” people could justifiably overthrow the existing state and create a new one.

The Roman Catholic view of Natural Law

The Roman Catholic Church holds the view of natural law set forth by Thomas Aquinas, particularly in his Summa Theologica, and often as filtered through the School of Salamanca. This view is also shared by some Protestant churches. The Catholic Church understands human beings to consist of body and mind, the physical and the non-physical (or soul perhaps), and that the two are inextricably linked. Humans are capable of discerning the difference between good and evil because they have a conscience.81

There are many manifestations of the good that we can pursue. Some, like procreation, are common to other animals, while others, like the pursuit of truth, are inclinations peculiar to the capacities of human beings – because humans have the thought process. To know what is right, one must use one’s reason and apply it to Aquinas’ precepts. This reason is believed to be embodied, in its most abstract form, in the concept of a primary precept: “Good is to be sought, evil avoided.”

In contemporary jurisprudence

In jurisprudence, natural law can refer to these doctrines:

  • That just laws are immanent in nature; that is, they can be “discovered” or “found” but not “created” by such things as a bill of rights;
  • That they can emerge by the natural process of resolving conflicts, as embodied by the evolutionary process of the common law; or
  • That the meaning of law is such that its content cannot be determined except by reference to moral principles. These meanings can either oppose or complement each other, although they share the common trait that they rely on inherence as opposed to design in finding just laws.

_________________________________________

81. Pope John Paul II, Veritatis Splendor, n. 54 ff.

 

WATCH OUT for other Theories of Law | Visit this website regularly . . .

_________________________________________________________________________

Legal Method . Book CoverCulled from: Legal Method  | Author: Nnamdi Ebo  |  Published by LawLords Publications  |  ISBN: 978-978-49827-9-6  | 1st Edition 2012

Buy the book, Legal Method  |  Click  Bookshop

Nnamdi Ebo [email protected]  |  © 2014 Nnamdi Ebo . All Rights Reserved

Leave a Reply

Your email address will not be published. Required fields are marked *

*

* Copy This Password *

* Type Or Paste Password Here *

48,345 Spam Comments Blocked so far by Spam Free Wordpress

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>