A brief on Natural law school of jurisprudence
The school of natural law traces the sources of law to nature, god, intuition, reason and recognition. This school said that it was impossible to accept such a theory that doesn’t have backing of rational cognition. This school believes that humankind has the innate sense of construing what is right and what is wrong. We come to the understanding of this by virtue of applying reason. God made us, and also wanted us to desire certain goods which are called basic goods. These are the basic good of life, reproduction, educating those that we reproduced. the basic goods more specific to humans are those of seeking god, living in society, avoiding offence with members of society and basically using reason and avoiding ignorance. The natural laws can be derived from these concepts of basic goods. There is no need for any ‘body of knowledge’ to understand natural law. Our instincts incline us towards basic goods and our reasoning allows us to derive natural law from it. from the basic good, we can derive a prohibition and a positive injunction. hence the basic good of life, the prohibition is not to kill and the positive injunction is to promote life. The morality is grounded in God, that he created the moral order.
The development of natural law can be a tale where mankind searched for justice and its failure.
Plato differentiated between law and justice. In order to govern a society, justice must be administered without law. In an ideal state, there are no laws where the judge is a philosopher who is not just bound by written law. He realises the difficulty in finding a philosopher king, so he agreed to a law state where the codification of the laws is governed by a ruler.
Aristotle has recognised the presence of a natural law and that of legal justice. He sees natural justice as a force and not something that exists because of people’s thinking. Aristotle says what was just by nature needn’t be something considered just by law. He has made a note that natural justice is a type of political justice, especially the scheme of distributive and corrective justice. He believes that natural law comes from rhetoric. He believes that justice is based on telos and logos; justice was achieving the ends through virtuous means. He distinguishes from two types of justice – universal which is based on the distributive theory of telos and logos and conventional justice which are the laws put down by an authority
If there is a theory of natural law that is most recognised, it has to be that of Thomas Aquinas. According to him, there are two important features of natural law. Focusing on God’s role of natural law is one of the aspects among the other aspects of divine precedence. And the other is that the theory of natural law is from the perspective of practical rationality. All humans possess the basics of natural law. This is shown in the intrinsic desire that we possess in desiring various goods. Natural law is incompatible with the rejection of presence of value. Aquinas says that the fundamental to be achieved was that good needs to be done and evil should be avoided. the good is prior to the right, and right action is that action responds non defectively to the good. there are different ways in which action can be defective in respect to the good and some of those ways can be captured and made into laws.
Another pioneer thinker who contributed to natural law is Hugo Grotius. He divides all law into divine and what is human – that is primary and secondary laws of nature. The primary laws show us the will of god, and the secondary type are laws and rules that lie within the ambit of reason. He puts forward three ways of settling disputes. Negotiation and conference between the rival parties, compromise between the parties and the third was choosing by lot or combat. Grotius wanted the laws to apply to both the state and its people equally
Hobbes considered man to be intrinsically malicious, selfish, brutal and very aggressive; he devised a state of nature where there was constant fear, hatred and mutual disrespect said that the law of nature was a command of right reason about those things that should be done or those that shouldn’t be done for the preservation of state and its members. It is a general rule that forbids man from doing anything that destructs his life.
J Cabin says that natural law dominates over positive law meaning that positive law adds to or limits natural law but never contradicts it.
Cicero says that true law is right reason that is in agreement with nature. It is unchanging, everlasting and is of universal application. it was a sin if one tried to alter the law and no one should be allowed to repeal it. Acting according to reason is always appreciated by law. The mind and reason of the intelligent man is the measure of justice and intelligent people should spread justice his actions. Locke says people are governed by natural law and it obliges him with reason and no one should harm any other person’s health, life liberty. Natural law is un-avoidable, cannot be changed and is universal. There is only one master and one ruler.
St.Augustine believed that man lived in a state of innocence, holiness and justice. After original sin happened, god punished men with mortality. God did not take away man’s good qualities, but man himself corrupted them with jealousy, lust, anger. Now reason had to change its approach and government, state and law came into being. The duty of the worldly law is to protect or uphold eternal law and the church was the guardian of eternal law. He believes that at some pint in time, the mundane commonwealth will be replaced by the commonwealth of God and the Eternal Law of God would re-join while man’s original nature will be restored.
Author: Palguna M,
School of Law Christ University 2 year