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Natural law (, lex naturalis) is a Philosophy and legal theory that posits the existence of a set of inherent laws derived from nature and universal moral principles, which are discoverable through reason. In ethics, natural law theory asserts that certain rights and moral values are inherent in human nature and can be understood universally, independent of enacted laws or societal norms. In jurisprudence, natural law—sometimes referred to as iusnaturalism or jusnaturalism—holds that there are objective legal standards based on morality that underlie and inform the creation, interpretation, and application of human-made laws. This contrasts with positive law (as in legal positivism), which emphasizes that laws are rules created by human authorities and are not necessarily connected to moral principles. Natural law can refer to "theories of ethics, theories of politics, theories of civil law, and theories of religious morality", depending on the context in which naturally-grounded practical principles are claimed to exist.
In Western tradition, natural law was anticipated by the pre-Socratics, for example, in their search for principles that governed the cosmos and human beings. The concept of natural law was documented in ancient Greek philosophy, including Aristotle, and was mentioned in ancient Roman philosophy by Cicero. References to it are also found in the Old Testament and of the Bible, and were later expounded upon in the Middle Ages by Christian philosophers such as Albert the Great and Thomas Aquinas. The School of Salamanca made notable contributions during the Renaissance.
Although the central ideas of natural law had been part of Christian thought since the Roman Empire, its foundation as a consistent system was laid by Aquinas, who synthesized and condensed his predecessors' ideas into his Lex Naturalis (). Aquinas argues that because human beings have reason, and because reason is a spark of the divine, all human lives are sacred and of infinite value compared to any other created object, meaning everyone is fundamentally equal and bestowed with an intrinsic basic set of rights that no one can remove.
Modern natural law theory took shape in the Age of Enlightenment, combining inspiration from Roman law, Christian Scholasticism philosophy, and contemporary concepts such as social contract theory. It was used in challenging the theory of the divine right of kings, and became an alternative justification for the establishment of a social contract, positive law, and government—and thus legal rights—in the form of classical republicanism. John Locke was a key Enlightenment-era proponent of natural law, stressing its role in the justification of property rights and the right to revolution. In the early decades of the 21st century, the concept of natural law is closely related to the concept of natural rights and has libertarian and Conservatism proponents. Indeed, many , and scholars use natural law synonymously with natural rights () or natural justice; others distinguish between natural law and natural right.
Aristotle's association with natural law may be due to Thomas Aquinas's interpretation of his work. But whether Aquinas correctly read Aristotle is in dispute. According to some, Aquinas conflates natural law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics (Book IV of the Eudemian Ethics). According to this interpretation, Aquinas's influence was such as to affect a number of early translations of these passages in an unfortunate manner, though more recent translations render them more literally. Aristotle notes that natural justice is a species of political justice, specifically the scheme of distributive and corrective justice that would be established under the best political community; if this took the form of law, it 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.
The best evidence of Aristotle's having thought there is a natural law is in the Rhetoric, where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature.Aristotle, Rhetoric 1373b2–1378. Specifically, he quotes Sophocles and Empedocles:
Some critics believe that this remark's context suggests only that Aristotle advised that it can be rhetorically advantageous to appeal to such a law, especially when the "particular" law of one's own city is averse to the case being made, not that there actually is such a law. Moreover, they write that Aristotle considered two of the three candidates for a universally valid, natural law provided in this passage to be wrong. Aristotle's paternity of natural law tradition is consequently disputed.
As the English historian A. J. Carlyle notes:
Charles H. McIlwain likewise observes that "the idea of the equality of men is the most profound contribution of the Stoics to political thought" and that "its greatest influence is in the changed conception of law that in part resulted from it.
Natural law first appeared among the Stoics, who believed that God is everywhere and in everyone (see classical pantheism). According to this belief, there is a "divine spark" within us that helps us live in accordance with nature. The Stoics believed there is a way in which the universe has been designed, and that natural law helps us to harmonize with this.
You, villain, have not come with your villainous offer to a nation or a commander like yourself. Between us and the Faliscans there is no fellowship based on a formal compact as between man and man, but the fellowship which is based on natural instincts exists between us, and will continue to do so. There are rights of war as there are rights of peace, and we have learnt to wage our wars with justice no less than with courage. We do not use our weapons against those of an age which is spared even in the capture of cities, but against those who are armed as we are, and who without any injury or provocation from us attacked the Roman camp at Veii. These men you, as far as you could, have vanquished by an unprecedented act of villainy; I shall vanquish them as I vanquished Veii, by Roman arts, by courage and strategy and force of arms.
Cicero wrote in his De Legibus that both justice and law originate from what nature has given to humanity, from what the human mind embraces, from the function of humanity, and from what serves to unite humanity.Cicero, De Legibus, bk. 1, sec. 16–17. 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 the idea and principle of choosing what is just and true."Cicero, De Legibus (Keyes translation), book 2, sec. 11. Law, for Cicero, "ought to be a reformer of vice and an incentive to virtue."Cicero, De Legibus (Keyes translation), book 1, sec. 58. 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."
In De Re Publica, he writes:
Cicero influenced the discussion of natural law for many centuries to come, up through the era of the American Revolution. The jurisprudence of the Roman Empire was rooted in Cicero, who held "an extraordinary grip ... upon the imagination of posterity" as "the medium for the propagation of those ideas which informed the law and institutions of the empire." Cicero's conception of natural law "found its way to later centuries notably through the writings of Isidore of Seville and the Decretum of Gratian." Thomas Aquinas, in his summary of medieval natural law, quoted Cicero's statement that "nature" and "custom" were the sources of a society's laws.Thomas Aquinas, Treatise on Law (Summa Theologica, Questions 90–97), ed. Stanley Parry (Chicago: Henry Regnery Company, 1969), p. 18
The Renaissance Italian historian Leonardo Bruni praised Cicero as the person "who carried philosophy from Greece to Italy, and nourished it with the golden river of his eloquence."Quoted in Quentin Skinner (1978), The Foundations of Modern Political Thought, Cambridge University Press, vol. 1, p. 89. The legal culture of Elizabethan England, exemplified by Edward Coke, was "steeped in Ciceronian rhetoric". The Scottish moral philosopher Francis Hutcheson, as a student at Glasgow, "was attracted most by Cicero, for whom he always professed the greatest admiration." More generally in eighteenth-century Great Britain, Cicero's name was a household word among educated people. Likewise, "in the admiration of early Americans Cicero took pride of place as orator, political theorist, stylist, and moralist."
The British polemicist Thomas Gordon "incorporated Cicero into the radical ideological tradition that travelled from the mother country to the colonies in the course of the eighteenth century and decisively shaped early American political culture." Cicero's description of the immutable, eternal, and universal natural law was quoted by Burlamaqui and later by the American revolutionary legal scholar James Wilson. Cicero became John Adams's "foremost model of public service, republican virtue, and forensic eloquence". Adams wrote of Cicero that "as all the ages of the world have not produced a greater statesman and philosopher united in the same character, his authority should have great weight." Thomas Jefferson "first encountered Cicero as a schoolboy while learning Latin, and continued to read his letters and discourses throughout his life. He admired him as a patriot, valued his opinions as a moral philosopher, and there is little doubt that he looked upon Cicero's life, with his love of study and aristocratic country life, as a model for his own." Jefferson described Cicero as "the father of eloquence and philosophy."Jefferson to Amos J. Cook, 21 Jan. 1816; quoted in Jefferson's Literary Commonplace Book, p. 161.
Because of its origins in the Old Testament, early Church Fathers, especially those in the West, saw natural law as part of the natural foundation of Christianity. The most notable among these was Augustine of Hippo, who equated natural law with humanity's prelapsarian state; as such, a life according to unbroken human nature was no longer possible and persons needed instead to seek healing and salvation through the divine law and divine grace of Jesus Christ. Augustine was also among the earliest to examine the legitimacy of the laws of man, and attempt to define the boundaries of what laws and rights occur naturally based on wisdom and conscience, instead of being arbitrarily imposed by mortals, and if people are obligated to obey laws that are unjust.
The natural law was inherently teleological as well as Deontology. For Christians, natural law is how human beings manifest the divine image in their life. This mimicry of Jesus Christ's own life is impossible to accomplish except by means of the power of grace. Thus, whereas deontological systems merely require certain duties be performed, Christianity explicitly states that no one can, in fact, perform any duties if grace is lacking. For Christians, natural law flows not from divine commands, but from the fact that humanity is made in God's image, humanity is empowered by God's grace. Living the natural law is how humanity displays the gifts of life and grace, the gifts of all that is good.
Consequences are in God's hands, consequences are generally not within human control, thus in natural law, actions are judged by three things: (1) the person's intent, (2) the circumstances of the act and (3) the nature of the act. The apparent good or evil consequence resulting from the moral act is not relevant to the act itself. The specific content of the natural law is therefore determined by how each person's acts mirror God's internal life of love. Insofar as one lives the natural law, temporal satisfaction may or may not be attained, but salvation will be attained. The state, in being bound by the natural law, is conceived as an institution whose purpose is to assist in bringing its subjects to true happiness. True happiness derives from living in harmony with the mind of God as an image of the living God.
After the Protestant Reformation, some Protestant denominations maintained parts of the Catholic concept of natural law. The England theology Richard Hooker from the Church of England adapted Thomism notions of natural law to Anglicanism five principles: to live, to learn, to reproduce, to worship God, and to live in an ordered society.
The Catholic Church holds the view of natural law introduced by Albertus Magnus and elaborated by Thomas Aquinas,Pope John Paul II, Veritatis Splendor , n. 44; International Theological Commission, The Search for Universal Ethics: A New Look at the Natural Law, n. 37. particularly in his Summa Theologica, and often as filtered through the School of Salamanca. This view is also shared by some , A Biblical Case for Natural Law, by David VanDrunen. Studies in Christian Social Ethics and Economics, no. 1. Grand Rapids: Acton Institute, 2006. and was delineated by Anglican writer C. S. Lewis in his works Mere Christianity and The Abolition of Man.
The Catholic Church understands human beings to consist of body and soul, and that the two are inextricably linked.Pope John Paul II, Veritatis Splendor , n. 48. Humans are capable of discerning the difference between good and evil because they have a conscience.Pope John Paul II, Veritatis Splendor , n. 54 ff. 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.International Theological Commission, The Search for Universal Ethics: A New Look at the Natural Law, n. 46.
To know what is right, one must use one's reason and apply it to Thomas 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." Summa Theologica I–II, Q. 94, A. 2. Aquinas explains that:
However, while the primary and immediate precepts cannot be "blotted out", the secondary precepts can be. Therefore, for a deontological ethical theory they are open to a surprisingly large amount of interpretation and flexibility. Any rule that helps humanity to live up to the primary or subsidiary precepts can be a secondary precept, for example:
Natural moral law is concerned with both exterior and interior acts, also known as action and motive. Simply doing the right thing is not enough; to be truly moral one's motive must be right as well. For example, helping an old lady across the road (good exterior act) to impress someone (bad interior act) is wrong. However, good intentions do not always lead to good actions. The motive must coincide with the cardinal or theological virtues. Cardinal virtues are acquired through reason applied to nature; they are:
The theological virtues are:
According to Aquinas, to lack any of these virtues is to lack the ability to make a moral choice. For example, consider a person who possesses the virtues of justice, prudence, and fortitude, yet lacks temperance. Due to their lack of self-control and desire for pleasure, despite their good intentions, they will find themself swaying from the moral path.
Jurists and theologians claimed thus the right to observe the conformity of the positive law with natural law. For Domingo de Soto, the theologians task is to assess the moral foundations of civil law. Due to this review right based on natural law, Soto criticised the new Spanish charities' laws on the pretext that they violated the fondamental rights of the poors, or that Juan de Mariana considered that the consent of population was needed in matter of taxation or money alteration. Criticized by Protestant thinkers like and Samuel von Pufendorf, this view was salvage by the pope Leo XIII in this encyclical Sapientiae Christianae, in which he asked the members of clergy to analyse modern legislation in view of higher norms.
Natural law played also a great role in the diffusion of a contractual consensualism. First recognize by and before the ecclesiastic courts, it was only in the 16th century that civil law allowed the principle of the binding nature of contracts on the basis of pure consent. As Pedro de Oñate said, "Consequently, natural law, canon law and Hispanic law entirely agree and innumerable difficulties, frauds, litigations and disputes have been removed thanks to such great consensus and clarity in the laws. To the contracting parties, liberty has very wisely been restored".Pedro de Oñate, De Contractibus, t.1, tract.1, disp.2, sect.5, num.166, p.40
Besides, natural law also requires the respect of the commutative justice in contractual relations: both parties are bound to respect the notion of on penalty of sin.
The natural law consists, for the Catholic Church, of one supreme and universal principle from which are derived all our Natural morality obligations or duties. Thomas Aquinas resumes the various ideas of Catholic moral thinkers about what this principle is: since good is what primarily falls under the apprehension of the practical reason, the supreme principle of moral action must have the good as its central idea, and therefore the supreme principle is that good is to be done and evil avoided.
The Maturidi school, the second-largest school of Sunni theology, as well as the Mu'tazilites, posits the existence of a form of natural, or "objective", law that humans can comprehend. 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, he believes, is known to be evil by reason alone due to people's working hard for their property. Similarly, killing, fornication, and drunkenness are all "discernible evils" that the human mind could know of according to al-Maturidi. Likewise, 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 the protection of religion, life, property, offspring, and reason. His Aristotelian commentaries also influenced the subsequent Averroism movement and the writings of Thomas Aquinas.
Ibn Qayyim Al-Jawziyya also posited that human reason could discern between "great sins" and "good deeds". Nonetheless, he, like Ibn Taymiyah, emphasized the authority of "divine revelation" and asserted that it must be followed even if it "seems" to contradict human reason, though he stressed that most, if not all, of "God's commands" are both sensible (that is, rationalizable) and advantageous to humans in both "this life" and "the hereafter".
The concept of Istislah in Sharia bears some similarities to the natural law tradition in the West, as exemplified by Thomas Aquinas. However, whereas natural law deems good what is self-evidently good, according as it tends towards the fulfillment of the person, istislah typically calls good whatever is related to one of five "basic goods". Many jurists, theologians, and philosophers attempted to abstract these "basic and fundamental goods" from legal precepts. Al-Ghazali, for instance, defined them as religion, life, reason, lineage, and property, while others add "honor" also.
The laws were written in the oldest dialect of the Irish language, called Bérla Féini Bairla-faina, which even at the time was so difficult that persons about to become brehons had to be specially instructed in it; the length of time from beginning to becoming a learned Brehon was usually 20 years. However, under the law any third person could fulfill the duty if both parties agreed, and both were sane. It has been included in an Ethno-Celtic breakaway subculture, as it has religious undertones and freedom of religious expression allows it to once again be used as a valid system in Western Europe.
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 American historical figure Thomas Jefferson as a young apprentice lawyer.
Fortescue stressed "the supreme importance of the law of God and of nature" in works that "profoundly influenced the course of legal development in the following centuries." The legal scholar Ellis Sandoz has noted that "the historically ancient and the ontologically higher law—eternal, divine, natural—are woven together to compose a single harmonious texture in Fortescue's account of English law." As the legal historian Norman Doe explains: "Fortescue follows the general pattern set by Aquinas. The objective of every legislator is to dispose people to virtue. It is by means of law that this is accomplished. Fortescue's definition of law (also found in Accursius and Bracton), after all, was 'a sacred sanction commanding what is virtuous honesta and forbidding the contrary'." Fortescue cited the great Italian Leonardo Bruni for his statement that "virtue alone produces happiness".
Christopher St. Germain's The Doctor and Student was a classic of English jurisprudence. Norman Doe notes that St. Germain's view "is essentially Thomist", quoting Thomas Aquinas's definition of law as "an ordinance of reason made for the common good by him who has charge of the community, and promulgated". citing Thomas Aquinas, Summa Theologica, 1a, 2ae, 90, 4.
Edward Coke was the preeminent jurist of his time.Sir Edward Coke, The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003), vol. 1, p. xxvii. Coke's preeminence extended across the ocean: "For the American revolutionary leaders, 'law' meant Sir Edward Coke's custom and right reason."Thomas Jefferson wrote to James Madison in 1826 that before the Revolution, the first volume of Coke's Institutes of the Laws of England "was the universal elementary book of law students, and a sounder Whig never wrote, nor of profounder learning in the orthodox doctrines of the British constitution, or in what were called English liberties." See The Writings of Thomas Jefferson, vol. 16, p. 155. Coke defined law as "perfect reason, which commands those things that are proper and necessary and which prohibits contrary things".John Underwood Lewis, "Sir Edward Coke (1552–1634): His Theory of 'Artificial Reason' as a Context for Modern Basic Legal Theory", in Law, Liberty, and Parliament: Selected Essays on the Writings of Sir Edward Coke, ed. Allen D. Boyer (Indianapolis: Liberty Fund, 2004), pp. 108–109; citing Edward Coke, First Part of the Institutes, 319b. For Coke, human nature determined the purpose of law; and law was superior to any one person's reason or will.Lewis, "Sir Edward Coke (1552–1634): His Theory of 'Artificial Reason' as a Context for Modern Basic Legal Theory", p. 120. Coke's discussion of natural law appears in his report of Calvin's Case (1608): "The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction." In this case the judges found that "the ligeance or faith of the subject is due unto the King by the law of nature: secondly, that the law of nature is part of the law of England: thirdly, that the law of nature was before any judicial or municipal law: fourthly, that the law of nature is immutable." To support these findings, the assembled judges (as reported by Coke, who was one of them) cited as authorities Aristotle, Cicero, and the Apostle Paul; as well as Bracton, Fortescue, and St. Germain.Sir Edward Coke, The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003), vol. 1, pp. 195–197.
After Coke, the most famous common law jurist of the seventeenth century is Sir Matthew Hale. Hale wrote a treatise on natural law that circulated among English lawyers in the eighteenth century and survives in three manuscript copies.British Library, London, Add. MS 18235, fols. 41–147 1693; Harley MS 7159, fols. 1–266 1696; Hargrave MS 485 late-eighteenth This natural-law treatise has been published as Of the Law of Nature (2015).Matthew Hale, Of the Law of Nature , ed. David S. Sytsma (CLP Academic, 2015). Hale's definition of the natural law reads: "It is the Law of Almighty God given by him to Man with his Nature discovering the morall good and moral evill of Moral Actions, commanding the former, and forbidding the latter by the secret voice or dictate of his implanted nature, his reason, and his concience."Hale, Of the Law of Nature, 41.
He viewed natural law as antecedent, preparatory, and subsequent to civil government,Hale, Of the Law of Nature, 85–106. and stated that human law "cannot forbid what the Law of Nature injoins, nor Command what the Law of Nature prohibits."Hale, Of the Law of Nature, 194. He cited as authorities Plato, Aristotle, Cicero, Seneca, Epictetus, and the Apostle Paul.Hale, Of the Law of Nature, 41, 52, 64, 150–151. He was critical of Hobbes's reduction of natural law to self-preservation and Hobbes's account of the state of nature,Hale, Of the Law of Nature, 43, 86, 94. but drew positively on Hugo Grotius's De jure belli ac pacis, Francisco Suárez's Tractatus de legibus ac deo legislatore, and John Selden's De jure naturali et gentium juxta disciplinam Ebraeorum.Hale, Of the Law of Nature, 7–8, 17, 49, 63, 111–119, 192.
As early as the thirteenth century, it was held that "the law of nature ... is the ground of all law."8 Edw 4 fol. 12 and by the Chancellor and Judges that "it is required by the law of nature that every person, before he can be punish'd, ought to be present; and if absent by contumacy, he ought to be summoned and make default."9 Ed. 4 fol. 14Fort. 206 Further, in 1824, we find it held that "proceedings in our Courts are founded upon the law of England, and that law is again founded upon the law of nature and the revealed law of God. If the right sought to be enforced is inconsistent with either of these, the English municipal courts cannot recognize it."2 B. & C. 471
In Hobbes' opinion, the only way natural law could prevail was for men to submit to the commands of the sovereign. Because the ultimate source of law now comes from the sovereign, and the sovereign's decisions need not be grounded in morality, legal positivism is born. Jeremy Bentham's modifications on legal positivism further developed the theory.
As used by Thomas Hobbes in his treatises Leviathan and De Cive, natural law is "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 taketh away the means of preserving the same; and to omit, that, by which he thinketh it may best be preserved."Hobbes, Leviathan, pt. 1, ch. 14 (p. 64)
According to Hobbes, there are nineteen Laws. The first two are expounded in chapter XIV of Leviathan ("of the first and second natural laws; and of contracts"); the others in chapter XV ("of other laws of nature").
Hobbes's philosophy includes a frontal assault on the founding principles of the earlier natural legal tradition,Paul A. Rahe, Republics Ancient and Modern: Classical Republicanism and the American Revolution (Chapel Hill, 1992), pp. 372–373 disregarding the traditional association of virtue with happiness,A Hobbes Dictionary: and likewise re-defining "law" to remove any notion of the promotion of the common good.James R. Stoner, Jr., Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Lawrence, Kansas, 1992), 71; see also John Phillip Reid, "In the Taught Tradition: The Meaning of Law in Massachusetts-Bay Two-Hundred Years Ago", Suffolk University Law Review 14 (1980), 938–940. Hobbes has no use for Aristotle's association of nature with human perfection, inverting Aristotle's use of the word "nature". Hobbes posits a primitive, unconnected state of nature in which men, having a "natural proclivity ... to hurt each other" also have "a Right to every thing, even to one anothers body";Thomas Hobbes, De Cive (The Citizen), ed. Sterling P. Lamprecht (New York, 1949; orig. 1642), ch. 2, sec. 2 (p. 29). and "nothing can be Unjust" in this "warre of every man against every man" in which human life is "solitary, poore, nasty, brutish, and short."Thomas Hobbes, Leviathan, or the Matter, Forme, & Power of a Common-Wealth Ecclesiasticall and Civill (Mineola, N.Y., 2006; orig. 1651), pt. 1, ch. 14 (p. 72); p. 1, ch. 13 (pp. 21, 70).
Rejecting Cicero's view that people join in society primarily through "a certain social spirit which nature has implanted in man",Cicero, De re publica (Keyes translation), book 1, ch. 25, sec. 39 Hobbes declares that men join in society simply for the purpose of "getting themselves out from that miserable condition of Warre, which is necessarily consequent ... to the naturall Passions of men, when there is no visible Power to keep them in awe."Hobbes, Leviathan, pt. 2, ch. 17 (p. 93) As part of his campaign against the classical idea of natural human sociability, Hobbes inverts that fundamental natural legal maxim, the Golden Rule. Hobbes's version is "Do not that to another, which thou wouldst not have done to thy selfe."Hobbes, Leviathan, pt. 1, ch. 15 (p. 79). See also Rahe, Republics Ancient and Modern, p. 387.
Parkin observes that much of Cumberland's material "is derived from Roman Stoicism, particularly from the work of Cicero, as "Cumberland deliberately cast his engagement with Hobbes in the mould of Cicero's debate between the Stoics, who believed that nature could provide an objective morality, and Epicureanism, who argued that morality was human, conventional and self-interested."Parkin, 8. In doing so, Cumberland de-emphasized the overlay of Christian dogma (in particular, the doctrine of "original sin" and the corresponding presumption that humans are incapable of "perfecting" themselves without divine intervention) that had accreted to natural law in the Middle Ages.
By way of contrast to Hobbes's multiplicity of laws, Cumberland states in the very first sentence of his Treatise of the Laws of Nature that "all the Laws of Nature are reduc'd to that one, of Benevolence toward all Rationals."Richard Cumberland, A Treatise of the Laws of Nature, trans. John Maxwell (Indianapolis, 2005; orig. 1727), "Contents" (p. 237). Cumberland's treatise was originally published in Latin in 1672. A Latin edition was published in Germany in 1684. He later clarifies: "By the name Rationals I beg leave to understand, as well God as Man; and I do it upon the Authority of Cicero." Cumberland argues that the mature development ("perfection") of human nature involves the individual human willing and acting for the common good.Cumberland, ch. 1, sec. 33 (p. 356)
For Cumberland, human interdependence precludes Hobbes's natural right of each individual to wage war against all the rest for personal survival. However, Haakonssen warns against reading Cumberland as a proponent of "enlightened self-interest". Rather, the "proper moral love of humanity" is "a disinterested love of God through love of humanity in ourselves as well as others".Haakonssen, "The Character and Obligation of Natural Law according to Richard Cumberland", pp. 34, 35. Cumberland concludes that actions "principally conducive to our Happiness" are those that promote "the Honour and Glory of God" and also "Charity and Justice towards men".Cumberland, ch. 5, sec. 13 (pp. 523–524).
Cumberland emphasizes that desiring the well-being of our fellow humans is essential to the "pursuit of our own Happiness".Cumberland, ch. 5, sec. 12 (p. 525) He cites "reason" as the authority for his conclusion that happiness consists in "the most extensive Benevolence", but he also mentions as "Essential Ingredients of Happiness" the "Benevolent Affections", meaning "Love and Benevolence towards others", as well as "that Joy, which arises from their Happiness".Cumberland, ch. 5, sec. 15 (pp. 527–528).
Alberico Gentili and Hugo Grotius based their philosophies of international law on natural law. In particular, Grotius's 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." ( De iure belli ac pacis, Prolegomeni XI). This is the famous argument etiamsi daremus ( non esse Deum), that made natural law no longer dependent on theology. However, German church-historians Ernst Wolf and M. Elze disagreed and wrote that Grotius' concept of natural law did have a theological basis.Ernst Wolf, Naturrecht, in Die Religion in Geschichte und Gegenwart, 3. Auflage, Band IV (1960), Tübingen (Germany), col. 1357 In Grotius' view, the Old Testament contained moral precepts (e.g. the Decalogue) which Christ confirmed and therefore were still valid. Moreover, they were useful in explaining the content of natural law. Both biblical revelation and natural law originated in God and could therefore not contradict each other.M. Elze, Grotius, Hugo, in Die Religion in Geschichte und Gegenwart, 3. Auflage, Band II (1958), col. 1885
In a similar way, Samuel Pufendorf gave natural law a theological foundation and applied it to his concepts of government and international law.H. Hohlwein, Pufendorf, Samuel Freiherr von, in Die Religion in Geschichte und Gegenwart, 3. Auflage, Band V (1961), col. 721
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 Thomas Aquinas (filtered through Richard Hooker) or Thomas Hobbes radical reinterpretation, though the effect of Locke's understanding is usually phrased in terms of a revision of Hobbes upon Hobbesian social contract grounds. 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.John Locke, Two Treatises of Government, Second Treatise, Chapter 13, §149
While Locke spoke in the language of natural law, the content of this law was by and large protective of natural rights, and it was this language that later liberal thinkers preferred. Political philosopher Jeremy Waldron has pointed out that Locke's political thought was based on "a particular set of Protestant Christian assumptions."Jeremy Waldron (2002), God, Locke, and Equality: Christian Foundations in Locke's Political Thought. Cambridge University Press, p. 13 To Locke, the content of natural law was identical with biblical ethics as laid down especially in the Decalogue, Christ's teaching and exemplary life, and Paul's admonitions.Jeremy Waldron, God, Locke, and Equality, pp. 12–15, 45–46, 95–97, 195–198, 230 Locke derived the concept of basic human equality, including the equality of the sexes ("Adam and Eve"), from Genesis 1, 26–28, the starting-point of the theological doctrine of Imago Dei.Jeremy Waldron, God, Locke, and Equality, pp. 21–43 One of the consequences is that as all humans are created equally free, governments need the consent of the governed.Jeremy Waldron, God, Locke, and Equality, p. 136
Thomas Jefferson, arguably echoing Locke, appealed to unalienable rights in the Declaration of Independence, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."Pangle, The Spirit of Modern Republicanism (Chicago: University of Chicago Press, 1988), 209. The Lockean idea that governments need the consent of the governed was also fundamental to the Declaration of Independence, as the American Revolutionaries used it as justification for their separation from the British crown.Cf. Robert Middlekauff (2005), The Glorious Cause: The American Revolution, 1763–1789, Revised and Expanded Edition, Oxford University Press, , pp. 49–52, 136
The Belgian philosopher of law Frank van Dun is one among those who are elaborating a secular conception of natural law in the liberal tradition. Anarcho-capitalist theorist Murray Rothbard argues that "the very existence of a natural law discoverable by reason is a potentially powerful threat to the status quo and a standing reproach to the reign of blindly traditional custom or the arbitrary will of the State apparatus." Austrian school economist Ludwig von Mises states that he relaid the general sociological and economic foundations of the liberal doctrine upon utilitarianism, rather than natural law, but R. A. Gonce argues that "the reality of the argument constituting his system overwhelms his denial." Murray Rothbard, however, says that Gonce makes a lot of errors and distortions in the analysis of Mises's works, including making confusions about the term which Mises uses to refer to scientific laws, "laws of nature", saying it characterizes Mises as a natural law philosopher. David Gordon notes, "When most people speak of natural law, what they have in mind is the contention that morality can be derived from human nature. If human beings are rational animals of such-and-such a sort, then the moral virtues are...(filling in the blanks is the difficult part)."
Nobel Prize winning Austrian economist and social theorist Friedrich Hayek said that, originally, "the term 'natural' was used to describe an orderliness or regularity that was not the product of deliberate human will. Together with 'organism' it was one of the two terms generally understood to refer to the spontaneously grown in contrast to the invented or designed. Its use in this sense had been inherited from the stoic philosophy, had been revived in the twelfth century, and it was finally under its flag that the late Spanish Schoolmen developed the foundations of the genesis and functioning of spontaneously formed social institutions."
The idea that 'natural' was "the product of designing reason" is a product of a seventeenth century Rationalism reinterpretation of the law of nature. Luis Molina, for example, when referred to the 'natural' price, explained that it is "so called because 'it results from the thing itself without regard to laws and decrees, but is dependent on many circumstances which alter it, such as the sentiments of men, their estimation of different uses, often even in consequence of whims and pleasures." And even John Locke, when talking about the foundations of natural law and explaining what he thought when citing "reason", said: "By reason, however, I do not think is meant here that faculty of the understanding which forms traint of thought and deduces proofs, but certain definite principles of action from which spring all virtues and whatever is necessary for the proper moulding of morals."
This anti-rationalist approach to human affairs, for Hayek, was the same which guided Scottish enlightenment thinkers, such as Adam Smith, David Hume and Adam Ferguson, to make their case for liberty. For them, no one can have the knowledge necessary to plan society, and this "natural" or "spontaneous" order of society shows how it can efficiently "plan" bottom-up. Also, the idea that law is just a product of deliberate design, denied by natural law and linked to legal positivism, can easily generate totalitarianism: "If law is wholly the product of deliberate design, whatever the designer decrees to be law is just by definition and unjust law becomes a contradiction in terms. The will of the duly authorized legislator is then wholly unfettered and guided solely by his concrete interests." This idea is wrong because law cannot be just a product of "reason": "no system of articulated law can be applied except within a framework of generally recognized but often unarticulated rules of justice."
However, a secular critique of the natural law doctrine was stated by Pierre Charron in his De la sagesse (1601): "The sign of a natural law must be the universal respect in which it is held, for if there was anything that nature had truly commanded us to do, we would undoubtedly obey it universally: not only would every nation respect it, but every individual. Instead there is nothing in the world that is not subject to contradiction and dispute, nothing that is not rejected, not just by one nation, but by many; equally, there is nothing that is strange and (in the opinion of many) unnatural that is not approved in many countries, and authorized by their customs."
In jurisprudence, natural law can refer to the several doctrines:
Whereas legal positivism would say that a law can be unjust without it being any less a law, a natural law jurisprudence would say that there is something legally deficient about an unjust norm.
Besides utilitarianism and Kantianism, natural law jurisprudence has in common with virtue ethics that it is a live option for a first principles ethics theory in analytic philosophy.
The concept of natural law was very important in the development of the English common law. In the struggles between Parliament and the British monarchy, Parliament often made reference to the Fundamental Laws of England, which were at times said to embody natural law principles since time immemorial and set limits on the power of the monarchy. According to William Blackstone, however, natural law might be useful in determining the content of the common law and in deciding cases of equity, but was not itself identical with the laws of England. Nonetheless, the implication of natural law in the common law tradition has meant that the great opponents of natural law and advocates of legal positivism, like Jeremy Bentham, have also been staunch critics of the common law.
Today, the most cited authors in literature related to natural law are, in their order: Aquinas, John Finnis, John Locke, Lon Fuller, Ronald Dworkin, and James Wilson, who participated in drafting the U.S. Declaration of Independence. It shows how Aquinas has still a significant influence on the topic. The second Australian professor at Oxford University, John Finnis, is the most prominent contemporary natural law jurist alive. Other authors, like the Americans Germain Grisez, Robert P. George, and Canadian Joseph Boyle and Brazilian Emídio Brasileiro are also constructing a new version of natural law. They created a school called "New Natural Law", originated by Grisez. It focuses on "basic human goods", such as human life, knowledge, and aesthetic experience, which are Self-evidence and intrinsically worthwhile, and states that these goods reveal themselves as being incommensurable with one another.
The 19th-century anarchism and legal theorist Lysander Spooner was also a figure in the expression of modern natural law.
The tensions between natural law and positive law have played, and continue to play, a key role in the development of international law.
U.S. Supreme Court justices Clarence Thomas and Neil Gorsuch are proponents of natural law.
Nevertheless, Riofrio has detected in a quantitative and qualitative analysis of the most cited papers of natural law, that authors dedicated to natural law usually take into account some elements to deduce others. For instance, Finnis deduces legal principles and natural rights from the seven basic goods; Aquinas deduces the human goods from the human powers, and so on. The elements of the so-called "Natural Law Formula", are the following ones: being (of people and things) – potencies of human beings and things – aims and inclinations of those potencies; means – human values or goods – ethical and legal principles – rules – natural and positive rights – cases and circumstances.
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