Natural law theory
- It is the name of the point if intersection between law and morals – D’Entreves
- The idea of natural law may be summarized as denoting that:
- Law cannot be properly understood outside the precepts of morality
- There is a higher moral law which cannot be subordinated to human made law
Schools of natural law
- Divine Natural School of Thought – principles inspired by God. The principles reflect authoritative religious doctrines e.g. the bible, to rah such as the Ten Commandments. Under this school, law must be made as to conform to God’s commands. Legitimacy of human law depends on its consonance to God’s law; any inconsistent law is invalid and should not be enforced.
- Secular Natural School of Thought – it replaces divine law with the physical, biological, and behavioral laws of nature as understood by human reason. Based on uniform and fixed norms of human nature
- Historical Natural School of Thought – argues that law must conform with well established but unwritten customs traditions and experiences that have evolved over the course of history e.g. when King James wanted to usurp the absolute authority of the English Kingdom, Sir Edward argued that the sovereignty of the crown is limited to the ancient liberties of the English people in their memorial customs and the natural rights retained in the magna carta
Cicero, Plato and Aristotle
- Plato states that ethics is intuitive and it justice is inherent from law. Justice is right (moral).
- Aristotle says that the natural world has elements of transcendent values.
- Cicero true law is the right reason, consonant with nature and it is spread through all people, it commands obedience by its subjects and prevents crimes by its prohibitions
Critique to Plato and Aristotle
- Justice does not always adhere to morality principles, it merely depends on the legal provisions
- People still commit crimes even though the legal provisions out rightly prohibit commission of crimes
Thomas
Aquinas (1225-1274)
- Law derives validity from morality, an immoral law is not law
- All law comes from God
- The objective of any law is to achieve the common good of the people
- Classified law into: eternal law, natural law, divine law and human law
Critique to Aquinas’ proposition
- Not all laws come from God, the legislative authorities of nations take charge in enactment and legislation of laws
- Not all laws are oriented towards achieving the common good off all people e.g. the Nazi Laws
Thomas Hobbes (1588-1679)
- Natural law teaches the need for self-preservation and that the law and the government must protect order and security.
- He adopts the ideology of a social contract and states that a sovereign government is necessary for the preservation of life. He states that people quarrel due to competition, distrust and glory; and that once people surrender their right to a sovereign
Critique to Hobbes
- Existence of dictatorial governments that have valid legal systems
John Locke (1632-1704)
- Embraces Locke’s ideology on the social contract. He states that a valid government must be able to protect property, liberty and life
- He says that all people are born with the inherent right to life, liberty and property
Locke’s critique
- What checks and balances are put in place to ensure that the government/ sovereign in control do not oppress its people.
- How far should the power of the authority in place go?
- Is a government that is incapable of protecting property invalid?
Jean-Jacques Rousseau (1712-1778)
- He proposes that the social contract be based on the general will of the people.
- He argues for the freedom of the human being and states that the revolutions such as the French revolution resulted from governments that were not based on the general will of the people.
- His concept of the general will fall under sovereignty which enforces the public good and legitimate power. To do this, another person’s interests must be considered before taking any action i.e. the good of the society and not just individual will.
Rousseau critique
- Rousseau's proposition makes provisions for certain rights and freedoms that cannot be infringed. However, Granting the authorities total legislative power could result in rules and laws that infringe on the rights that Rousseau argues must be protected.
John Finnis
- He argues that law does not come from God but from human nature. (Soft natural law. All laws according to him are based on the reason of the authority in control and not God.
- He introduces the common goods that are common to every men i.e. life, knowledge, play, aesthetic experience, sociability, practical reasonableness and religion; as constituting a desirable life.
Critique to Finnis
- Scholars have argued that knowledge is an objective good that is valuable only when put to certain use. If useless information is acquired, such knowledge is not an objective good.
Lon Fuller
- He talks about the morality of law. He says that the law is moral because it is: general, promulgated publicly, clear, consistent, possible to be complied with, progressive, and administered in a manner consistent with the wording.
- He also recognizes the fact that it is the judge who interprets the law and that the nature of the law is dependent on the moral sovereignty of the judge.
Thomas Jefferson
- All men are created equal and are endowed by their creator certain natural rights which include life, liberty and pursuit of happiness
The decline of natural law
- Legal positivism has greatly contributed to the decline of natural law.
- Non-cognitivism of ethics has also led to this decline. This means that moral reasoning may not be rational since one cannot correctly determine what is right or wrong for all.
- Natural lawyers have been unable to prove that instances of law that are not moral are invalid.
- David Hume states that law cannot be interpreted as what it ought to be but what it is.
The revival of natural law
- Natural law has however experienced revival in the 20th century.
- After the world wars, movements towards the making of human rights and conventions that govern nations against aggression were formed.
- The Nuremberg war trials led to the establishment of the principles on crimes against humanity.
- The principles of natural justice and the right exercised during trial are based on natural law principles.
Hard and soft natural law
- Hard natural law is strongly grounded on the idea that natural law is divine and that law must not be separated from morality. Under hard natural law, an unjust law is not law.
- Soft natural law does not derive the essence of morality from nature. It is dispensed from the philosophy of nature and human reason.
Moral realism
- There are moral facts that can and should be acted upon. It is dependent on different variables and questions
- It advocates for the fact that morals are real and not merely subjective, but they cannot be argued as either true or false.
- Morality is viewed as personal preference under moral realism. It is intended to determine objective moral values.
- Michael Moore, a moral realist states that judgments may at times incorporate non-moral ideas to achieve justice since legal justice is different from moral justice.
Critique to moral realism
- It is argued that natural law is inadequately natural due to the existence of soft natural law. It gives normative propositions of logic.
- Justifications of moral actions are not derived from nature but from knowledge according to Finn and they are self-evident.
Law and morality
- Not all laws are moral, what is good is not always legal
·
Natural lawyers state that it is impossible to
separate law from morality since morality is the act of positing law.
Hart v. Devlin; Hart v. Fuller
- Devlin: Their debate was based on a report made by the British committee to examine the possibility of embracing prostitution and homosexuality due to the idea of multiculturalism.
- The committee argued that the role of criminal law was to preserve public order and to protect the citizens from anything theta is offensive and injurious which can corrupt the young and the vulnerable.
- Devlin argued that the law had to punish any grossly immoral conduct and maintain the fabric of the society.
- Hart stated that the law ought to protect individuals from harming themselves even though defences of consent may be used for homicide and assault issues. Therefore Devlin’s argument should not stand
Semantic questions
- The theory proposed by Aquinas that an unjust law is not law has resulted in several debates
- In support of Natural Law, Dworkin argues that the legal systems like the Nazi did not last long due to the coercion that it exposed people to.
- Fuller argues that the separation between law and morality is that there is a moral obligation to obey the law.
- As a result of this statement, fidelity to the law cannot be construed as fidelity to injustice. Therefore, if a law is unjust, a person still has the moral obligation to obey it
Critique to natural law as a theory of law
- A more radical critique of the paradigmatic natural law account of the connection between the good and the right calls into question the very idea that one can get principles of moral rightness merely from what constitutes a defective response to the good. It continues to be an issue between natural law theorists like Grisez (1983) and Finnis (1980) on one hand and theological voluntarists like Adams (1999) and Hare (2001) on the other. Natural law theorists have several options: they can argue against any meaningful distinction between morality and the reasonable more generally); or they can embrace the distinction, but hold that on the clearest conception of the moral that we possess, the natural law account of reasonableness in action adequately satisfies that conception (Murphy 2001, pp. 222-227); or they can hold that the notion of ‘morally right’ is so muddled that it should be jettisoned, leaving in its stead the notion of the reasonable (cf. Anscombe 1958). It is at present far from clear which of these avenues of response the natural law theorist has most reason to embrace.
THE PLACE OF NATURAL LAW IN
OUR KENYAN CONSTITUTION.
- The natural law school is premised on the argument that what is the law based on a higher law dictated by reason and thus is also what the law ought to be.
- The preamble of the Kenyan constitution begins by acknowledging the supremacy of the Almighty God of all creation
- Natural law is also premised on the argument that an immoral law is not law and that all laws must be moral.
- Article 10 of the constitution makes provision for the national values and principles of governance that apply to all persons in the nation. The values may be equated to virtues as Jacques puts it.
- In his acclaimed treatise, ‘The Levitation’, Thomas Hobbes argued that the state of a nature is completely devoid of justice and that the world is a state against all. He further contends that as a result of a state of everyone looking out for himself or herself, life was solitary, poor, nasty, brutish and short. Consequently Hobbes came up with what are referred to as Hobbes laws of nature which sought to address the concerns he identified. His second law of nature postulated that there was need to enter into a social contract in order to mutually restrict the power of each person. He contended that pursuant to the social contract, everyone would confer all their power and strength to the state which would consequently possess all sovereign power over all its subjects, including the sole prerogative to define what is tantamount to right or just.
- The ideas propounded by Thomas Hobbes are captured, albeit with some modification, in the constitution article 1 which vests all sovereign power to the people. It echoes the arguments advanced by Hobbes as it provides for the delegation of sovereign power of the people to certain state organs, namely, parliament, judiciary and the executive. The constitution however limits those powers relegated to the state organs. As such, exercise of those powers shall be within the confines on the constitution.
- John Locke. Locke advocated for a system of government that would guarantee property rights. Put differently, Locke contended that natural law provides individuals living in the state of nature with natural or pre-political rights to life, liberty and property. He asserts that rights and more specifically property rights are intrinsic part of human existence. Locke’s arguments on property rights are captured in article 40 of the constitution of Kenya 2010.
- Jean-Jacques Rousseau -Jean argues that the state of nature in which man lived was primitive without any law and morality. In other words, it was a society characterized by disorder. However, societal developments necessitated the establishments of proper institutions of law that would ensure there was a semblance of order in the society. The concept of participatory general wills which would in turn ensure preservation of all in the society. Article 1(2) of the constitution provides that the people may exercise sovereign power either directly or indirectly. That article captures, though in a modified way, jean’s argument of participatory general will.
Conclusion
Natural law is the theory of law that
states that law and morality cannot be separated. It is the theory that
discusses what the law ought to be and not what the law is.
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