The aim of this newsletter is to assist students with explaining natural law tradition. Again this template is not to be taken as a substitute to reading around the area. Students must always read around the topic and keep going on the reading ride until a clear understanding is secured.
Having studied natural law tradition in quite some detail it should not be difficult to formulate a view about it but given the long history of this school it can be startling to form an understanding devoid of confusion & vagueness. Here is just one attempt to save you from struggling with natural law.
Natural law tradition is a jurisprudential school of thought predating the diametrically opposite and 19th century school of thought popularly known as the legal positivism. Natural law is believed to be one of the oldest schools of thought in jurisprudential circles with a history of about 2500 years. Whilst this long-standing history is self-explanatory of its significance but it is also evident to the difficulty it can lead to it in explaining what it entails. Perhaps the remark of Freeman & Lloyds that it should not be surprising given the long history of this school that the question what is natural law has provoked various answers is not without standing. Beginning with Milesian philosophers such as Thales, Anaximander & Anaximenes one finds out that their principal concern was explaining the question what is the source of all things. Their aim was to offer a natural explanation of the physical world around them (unlike the Greek mythological explanations of the natural phenomena such as lightening & thundering through the story of Thor & his Hammer) and hence in answering this question they came up with the most natural answers such as water, infinite & air. They were the first natural law thinkers. Whilst the Greek philosophers beginning with the tradition of Socrates followed up by Plato & Aristotle dealt with ideas such as justice, virtue, good life & its purpose. Aristotelian notion of telos or changing the language the teleological approach directed humans to find their telos that is to say their purpose. Aristotle argued that the telo of human was to live in polis whereby he could satisfy his natural knowledge-seeking and sociable instincts.
Whereas the Roman philosopher Cicero argued for the universality & immutability of natural law. According to him there could not be separate laws in Athens & Rome. There was only one true law that was true for all times. It is important to bear in mind that the universality of natural law is a claim that has survived since time long and in this age and time its clear demonstration can be seen in international instruments such as the Universal Declaration of Human Rights & the International Covenant on Civil & Political Rights. Other natural law contributions came from Italy through St. Thomas Aquinas. This added a theological particularly a Christianized gloss to natural law tradition whilst the contemporary natural law versions come from John Finnis & Lon Fuller. With these many versions of natural law it is no surprise to feel a pang of frustration in defining natural law. One safe way would be to look for the tenets upon which all the contributors agree & Freeman & Llyods identify this to be the fact that there are “universal objective moral truths”. This description seems to be a concession to the notion of cultural relativism. Nevertheless it is not beyond one’s capacity to think of examples of such truths. One example in the modern times is Art. 38(1) (c) of the Statute of International Court of Justice. This makes reference to the “general principles of civilized nations.” One such general principle is the right to fair trial. Other is the prohibition on the use of force as reflected in the United Nations Charter. Within international law one can think of principles like pacta sunt servanda and res judicata.
What one can learn from the discussion in the preceding paragraphs is that not only is natural law an old theory in fact it has been a guiding principle in revolution such as the American Revolution which culminated in the independence of American Colonies from the British imperial rule. The slogan of natural rights was used and reflected in the writing of Rousseau to show that there were rights which existed and belonged to humans which the state or political ruler could not violate.(REMEMBER THE NOTION OF HIGHER LAW WHICH OBLIGED THE RULERS).The early depiction of the conflict between natural law and state law can be seen in the Sophocles play ‘Antigone’ whereby the latter refuses to obey the state law of Creon because she had felt there was a law which operated over and above the state law which even the state law could not violate. More recently the coin of natural rights was played in the 20th century at the Nuremberg trial which culminated in the Hart-Fuller debate.