Natural Law Research Paper

Natural law, which combines epistemological and normative elements, has been a continuing concern of philosophers and theologians in the western world. Natural law theorists characteristically have asserted that there are ways of knowing how society should be ordered and that this knowledge can be derived from an understanding of the world and of humanity. Many natural law theorists have attributed the natural order of the universe to God, but secular philosophers have also adopted natural law assumptions.

1. History

Natural law thinking originated in Athens with Aristotle and the Stoics. In the Athenian polis, unity and diversity provided the thoughtful philosophers of the Academy and the early historian-anthropologists with the central question: how can human society be organized to ensure order and virtue? This question has remained central in natural law theories, even though the assumptions and the terms have changed over time.

Fundamental changes in natural law ideas have occurred as societies have posed new problems. Natural law thinking in pre-Christian Rome, responding to the diversity of the Empire, led to the distinction between the law of nations and the natural law. This limited the scope of natural law, while preserving the Ciceronian idea of fundamental principles. In the Christian era, natural law was seen as justifying the authority of the church temporal, throughout the decline of Rome and the chaos of the Holy Roman Empire. When the authority of the church was challenged at the Reformation, major theoretical developments reflected the changes. Samuel Pufendorf (1673) and Hugo Grotius (1625) used natural law doctrine to justify the authority of nation states and to order their relations in war and peace. And when monarchical authority, especially the divine right of kings, came into question, natural law doctrine was used to justify new democratic doctrines in both France and America during and after their popular revolutions. In the modern world, natural law ideas continue to draw on the tradition and to apply it to problems posed by a world order struggling to be born. Some illustrative detail follows.

1.1 Athens

Most natural law theorists acknowledge Aristotle as the first philosopher to have raised central questions in this area. While he did not develop a systematic philosophy of natural law, he did discuss several of the issues that have concerned natural law theorists in the millennia that followed. A key question that concerned Aristotle was whether there is any single moral standard by which humans can be guided. Aristotle proposes that virtue is the standard which, if fully practiced, can provide the highest satisfaction in life. The term virtue is used with respect to both individual character and proper relations with others. In relations with others, complete virtue is described as ‘justice.’ It is complete, Aristotle says, ‘because he who possesses it can employ his virtue in relation to his neighbors and not merely by himself; for there are many people who are capable of exhibiting virtue at home, but incapable of exhibiting it in relation to their neighbors’ (1987, p. 146).

The polity is the principal means by which virtue is promoted. While acknowledging that socialization helps, Aristotle maintains that ‘We shall need laws to teach us what is right’ (1987, p. 355) and these laws must be backed by sanction. He further argues that law must take account of the special circumstances in each polity, but should be directed toward the single goal of encouraging virtue in the citizens.

Aristotle declines to say whether virtue is sent by the gods or whether it is the result of human ‘learning and discipline of some kind’ (1987, p. 29), but even if the latter were true, ‘it would appear that that which is the prize and end of virtue is the supreme good and is in its nature divine and blessed.’ It is clear from the context that the duty of generating virtue-promoting law rests in his view on legislators and that they rarely succeed. While his is an appeal for a more active state, Aristotle recognizes that some of the responsibility in the event of legislative default should be assumed by every citizen ‘to further the cause of virtue in his own children and friends, or at least to set before himself the purpose of furthering it.’

Aristotle suggests that the administration of justice is in the hands of the magistrate. That role makes the magistrate ‘the guardian of justice and, if of justice, then of equality.’ To play that role properly, the magistrate ‘labors in the interest of others, which is the reason why justice is called the good of others.’ Since the magistrate does not assign to himself a larger share of the good, ‘some reward must therefore be given him in the shape of honour or privilege’ (1987, p. 166).

Thus Aristotle raised a set of questions that set the stage for natural law concerns. These ideas were carried forward by the Stoics in a way that emphasized individual virtue, rather than interpersonal relations, the law of the state, or the relation to God. In the subsequent development of the idea, however, the Aristotelian questions continued to play an important part.

1.2 Rome

If the Stoics can claim an important role in the history of natural law thinking, it is largely through their influence on the Roman aristocracy. Cicero (106 to 46 BC) was the great orator of the Republican period and Marcus Aurelius (121 to 180 AD) was the Emperor who recorded his Stoic philosophy. Their views of natural law reflected the culture of the period in which they made their major philosophical contributions.

Cicero sought in nature a standard by which the law of any given community should be judged. Recognizing that the actual law of nations fell far short of this standard, he urged the use of reason as the method by which wise men as legislators and magistrates could make law and justice approach the ideal standard that inheres in nature. In his view, only one standard of law can exist. Positive laws that depart from this standard are not to be considered law at all. ‘It may thus be clear,’ he declared, ‘that in the very definition of the term ‘‘law’’ there inheres the idea of choosing what is just and true’ (1928, pp. 317–391).

Cicero’s formulation of natural law emphasized its universality. It was the task of Roman law, in his view, to take account of the distinctive customs and laws of societies while developing a standard that would apply to all nations. ‘True law is right reason consonant with nature, world-wide in scope, unchanging and ever- lasting.’ He goes on to say that, ‘We may not oppose or alter that law, we cannot abolish it, we cannot be freed from its obligations by any legislature, and we need not look outside ourselves for any expounder of it. The law does not differ from Rome and Athens, for the present and for the future, but one eternal and unchanging law will be valid for all nature and for all times’ (cited by Haskell 1964, pp. 62–63).

That idea continued to be influential in Rome, through the time of Marcus Aurelius, and beyond. During the Empire, however, Stoicism served primarily as a moral guide to individuals, rather than as a system of social thought. If natural law concepts survived, they were relegated during the Imperial period to a lesser role in thought and action. Instead, the law of nations developed to take into account the diversity of custom, politics, and military security that served to provide a legal basis for maintaining the hegemony of Rome.

Although the Stoic school effectively ended about the time of Marcus Aurelius, the concept of natural law continued to live in Roman culture. It was in fact revived in an important way in the works of St. Augustine, who utilized the Stoic ideas of individual virtue and the Aristotelian–Ciceronian theme of justice to be achieved through a universally valid legal order. These two themes he saw as elements that must serve the will of God. And the instrument of God’s will on earth was to be the Christian commonwealth, under the guidance of the Christian Emperor.

Augustine’s formulation has had a profound impact on natural law thinking. Unlike Aristotle, he had little doubt that natural law reflected the will of God. Drawing on the Hebrew and Greek Scriptures, he emphasized the concept of one God whose moral directives were clearly manifest in the Ten Commandments, the words of the prophets, and the teachings of Jesus. He was able to use the Greek and Roman ideas in a way that subsumed individual virtue and social justice as part of God’s will on earth. His synthesis, surviving the collapse of the Roman Empire, became the guiding philosophy of medieval Europe. Eight centuries later, it provided a major foundation on which St. Thomas Aquinas constructed his cogent and influential conception of natural law.

1.3 Thomas Aquinas And The Scholastic Tradition

In the medieval period, universities developed in Europe that revived the traditions of learning that had virtually been lost after the fall of Rome. Paris in the thirteenth century was the most active center of intellectual ferment in all of Europe and Thomas Aquinas (1225–1275) had access there to the writings of Aristotle, the teachings of the Stoics, Cicero’s orations, Marcus Aurelius’ Meditations, and Augustine’s Confessions and City of God. In addition, Thomas had the writings of two Muslim scholars, Avicenna (980–1037) and Averroes (1126–1198), and the Jewish scholar Maimonides (1135–1204). All of these thinkers helped him to advance an intellectual synthesis that fit his times and has caught the attention of scholars and seekers ever since.

As the Renaissance gathered strength, there was tremendous excitement over the possibilities that emerged. With the growth of commerce came the awareness of other civilizations, ancient and modern. Into the cities came the most inquisitive along with the most acquisitive. There arose an intellectual and social ferment in the cities that provided opportunities for diverse ideas and actions. That newly found freedom raised again the kinds of questions that had been formulated and considered in Athens and Rome. It was in this context that Aquinas rendered his synthesis of Greek and Christian philosophy.

At the core of Thomas’ social philosophy was the idea of natural law. This concept provided him with the strength of two traditions that had been brought together by Augustine. His system assumed that the one God was the ultimate authority. For the individual believer, that provided spiritual support for creative philosophical thought.

It also helped to gain acceptance by the church of doctrines that might otherwise have been viewed as heretical. If God’s law is recognized as the ultimate authority, Thomas’ systematic theology encouraged the effort to approximate God’s will by finding in nature the kind of law that should apply universally. Human law, he acknowledged, can only approximate this effort, but the effort must be made.

In this system of thought, many of the ancient elements are present. The Stoic idea is reflected in that responsibility devolves on the individual to reason, to understand, and to implement God’s will. But the system depends on more than individual virtue. In addition, it requires the construction of laws that constrain evil and encourage the good according to universally valid principles. Those tenets are more Aristotelian than Stoic. Moreover, Thomas offers the hope of a natural law that has a place for everyone, or at least for all who have faith in God—a belief that follows pre-Reformation Christian teaching more than Greek or Roman philosophy.

Several points inhere in Thomas’ synthesis. Natural law exists in nature. It is not overridden or imposed by God the Creator. It is for humans to understand the law of nature, and to implement it in the real world through practical reason. In this way, the individual is virtuous and human law comes closer to the law of nature.

The fundamental assumption is that we must continually strive through the use of reason to approximate The Heavenly City. The conception of a just society is one that is fixed and permanent. It is the duty of the virtuous man to understand that conception and to help implement it. Thomas sought in this way to help stabilize the society through his integration of philosophy and theology. Many subsequent commentators have generally used his scholastic concepts in this way.

The strength and durability of the scholastic tradition is manifest in the work of Francisco Suarez, a Jesuit, who following Aquinas covered many of the same questions in his extensive work called De legibus (Concerning the Laws) published in 1612. One point of interest in Suarez’s work is the suggestion that circumstances can affect the natural law standard. Thus, if a person and his family are starving, that condition makes a difference in what is right for that person to do. Suarez would have the right of property overridden if the need is great enough in such circumstances. Additionally, Suarez contended that natural law standards are not limited to the obligatory and the forbidden. He also talked of the permitted, a concept that explicitly restored discretion to the virtuous person. Further, he would temper the absolute power of the king by reference to the preferences of their subjects. In these regards, Suarez showed a concern for freedom, equality, discretion, and judgment, but without explicitly departing from the scholastic position.

1.4 Changing Conceptions

A major change in natural law thinking resulted from the work of Hugo Grotius (1583–1645). Writing in Protestant Holland, he undertook to justify the Dutch challenge to the Spanish Empire. Focusing on the relations between sovereign states, Grotius developed new norms which focused on the rights of each nation to defend its interests, if necessary, through the use of war. To justify that position, he emphasized the theme of freedom. Individuals, he maintained, should be free to pursue their own interests even if they conclude that those interests could best be served by accepting slavery. Nations also must be free to choose whether to fight an enemy or to capitulate. In the rational pursuit of their self-interest, rational actors must be free to judge what was best for them. That freedom should be exercised, however, within certain limits, if the legitimate interests of all nations were to be protected. Grotius spelled out when wars were justified and how they should be fought. In so doing, he expanded the area covered by natural law and proposed new ways of justifying its provisions.

It was not Grotius’ goal to abolish war, but to outline a normative setting within which the parties could contend. His method provided ground rules for war, and for resuming peace. In recognizing the legitimate interests of contending parties, he provided a way out of interminable wars and enduring enmities. In this way, he opened the door to peacemaking. As war becomes increasingly violent in the contemporary world, Grotius’ suggestions for limiting or preventing war through international law become increasingly relevant. Natural law philosophy could play a part in supporting, if not steering, movement toward a world rule of law.

Following Grotius, many writers utilized the basic idea of natural law to justify their views of the world. Among the prominent authors whose works fit under this heading are Samuel Pufendorf, Thomas Hobbes, John Locke, Jean-Jacques Rousseau, Adam Smith, Edmund Burke, and John Stuart Mill. Each of them used the concept distinctively, but in so doing they contributed to the view that there exists in nature some basis for law that deserves attention. As scholastic philosophy lost its exclusive ownership of this idea, others were able to use it to their ends. This trend was expedited by the social and intellectual movements we know as the Renaissance, the Reformation, and the Enlightenment.

2. Natural Law As A Factor In Social Movements

The conviction that there are principles of law to be discerned in nature can strengthen and consolidate social movements. Examples of such effects are found repeatedly in British history, in the French Revolution, in the German reform movements of 1832 and 1848, and in the movement led by Garibaldi for Italian unification. Even when the term natural law is not explicitly used, some belief systems claim valid support for major social change on grounds that a new order is required by principles rooted in physical, human, or societal nature. In traditional Chinese culture, for instance, there is a widely held belief that a particular regime must be replaced if (as evidenced in natural disasters such as floods or earthquakes) the mandate of heaven has been withdrawn from the current dynasty. Another example is the Marxist idea that proletarian revolution inevitably leads toward a more just social order. (For a natural law approach to Marxism, see Bloch 1977.)

One of the best-known examples is found in the American Revolution. It is clear from many historical sources that the leaders and popular supporters of the American Revolution used natural law to justify their beliefs. English legal tradition from the time of the Magna Carta had been suffused with the idea that valid law must be consistent with nature. Moreover, the common law continued to provide affirmation of the view that justice inhered in nature and that it was the duty of reasonable people to ascertain how the law of nature applied to any given situation. Against that background, it comes as no surprise that the colonists reacted to the injustices (as they saw them) of the English king as violations of the laws of nature. In that light, they declared themselves independent of Great Britain and claimed ‘the separate and equal station to which the laws of nature and Nature’s God entitle them.’

Through the years, natural law has demonstrated remarkable vitality. When a new normative consensus is forming, natural law can be used to strengthen the force of agreement. A recent example is found in Martin Luther King’s letter to white clergy from the Birmingham jail, in which he explained his justification for breaking the law in opposing segregation. Adherence to just laws he strongly favored, but laws ‘that relegate persons to the status of things’ are unjust laws.

‘To put it in the terms of St. Thomas Aquinas, an unjust law is a law that is not rooted in eternal and natural laws.’

As an example, ‘an unjust law is a code inflicted upon a minority which that minority had no part in creating because they did not have the unhampered right to vote’ (King 1963). The letter contributed to the passage of the Voting Rights Act in the following year.

The natural law theme often surfaces when societies experience new needs whose solution requires a wide consensus implemented by law. In recent years there has been a growing awareness of the dangers of violence in a nuclear world. The answer to such dangers might well be found in a world rule of law. But such a legal order, to be legitimate, must be supported by a widespread consensus. Natural law concepts might, if adapted to our times, help fill that need.

There are signs of a revival of interest in natural law that address this problem. One example is found in the work of John Finnis and Germain Grisez, who have become leading figures in the study of natural law. In Finnis and Boyle (1987), they explore the morality of nuclear deterrent policy using natural law as the basis of their critique. In this and their other writings, Finnis and Grisez modify the scholastic tradition that is their starting point and move on to a more general formulation than could have been predicted by Aquinas. In some sense, their work returns to the Aristotelian starting points while retaining the innovations that have attached to natural law over its entire history.

As humanity struggles with serious new challenges, we can expect to see more examples of this intellectual history unfolding. Still needed is a way of integrating the natural law philosophy with the insights and methods of the social and behavioral sciences. This research paper has described the origins and developments of natural law thinking as it has occurred in different social settings. Social and behavioral scientists might well ask whether the idea has enough vitality and relevance to contribute to the evolution and legitimization of a world rule of law.

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