Dr.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY

ACADEMIC SESSION: 2022-2023

JURISPRUDENCE

A CRITICISM OF NATURAL LAW THEORY

Submitted to: Submitted by:

Dr. Shakuntala ‘Sangam’ Saddhvi Nayak

Associate Professor (Law) 200101114

RMLNLU 5th semester (Section B)

B.A.L.L.B(Hons.)
 CONTENTS

S.NO. Topic Pg.NO.

1. Declaration 3
2. Acknowledgement 4

3. Introduction 5

4. What is Natural Law 5-6

5. Two kinds of Natural Law Theory 6-7

6. Classical Natural Law Theory 8-9

7. A critique of Natural Law Theory 9-11

8. Internal Flaws of Natural Law Theory 11-12

9. Its Natural yet undesirable consequences 12-13

10. Conclusion 13-18

11. Bibliography 18
 DECLARATION

I hereby declare that the project work entitled “A Criticism of

Natural Law Theory” submitted to the Dr. Ram Manohar
Lohiya National Law University, Lucknow is a record of an
original work done by me under the guidance of Dr.
Shakuntala, faculty of law, the Dr. Ram Manohar Lohiya
National Law University and this project is submitted in the
partial fulfillment of the requirements for the award of the
degree of B.A.L.L.B (Hons.). The results embodied in this have
not been submitted to any other University or Institute for the
award of any degree or diploma.
 ACKNOWLEDGEMENT

This research paper would not have been accomplished without the
generous contributions of individuals. First of all, I express my gratitude
to the Almighty, who aided me with his strength, wisdom and patience to
complete this project as a term paper.

Additionally, I express my gratitude and deep regards to my teacher Dr.

Shakuntala for giving me the freedom to work on “A Criticism of
Natural Law Theory” and also for her exemplary guidance, monitoring
and constant encouragement throughout the course of this research
paper.

I would also like to thank the authorities of Dr. Madhu Limaye Library
who provided the remote access of the library to provide the research
material.

Moreover, I also thank all my batchmates and seniors who aided me

along the way, and my family and friends for their constant
encouragement without which this assignment would not have been
possible.

I know that despite my best effort some discrepancies might have crept
in which I believe my humble professor would forgive.

THANKING YOU ALL.

Saddhvi Nayak.
 INTRODUCTION

Law is, generally, a system of rules which are enforced through social institutions
to govern behavior, although the term “law” has no universally accepted definition.
Laws can be made by legislatures through legislations (resulting in statutes), the
executive through decrees and regulations, or judges through binding precedents
(normally in common law jurisdictions). Private individuals can create legally
binding contracts, including arbitrations agreements that exclude the normal court
process. The formation of law themselves may be influenced by a constitution and
the rights encoded therein. The law shapes politics, economics and society in
various ways and serves as a mediator of relations between people.1

WHAT IS NATURAL LAW

The term “natural law” is ambiguous. It refers to a type of moral theory, as well as
to a type of legal theory, but the core claims of the two kinds of theory are
logically independent. It does not refer to the laws of nature, the law that science
aims to describe. According to natural law moral theory, the moral standards that
govern human behavior are, in some sense, objectively derived from the nature of
human beings and the nature of the world. While being logically independent of
natural law legal theory, the two theories intersect.

According to natural law legal theory, the authority of legal standards necessarily
derives, at least in part, from considerations having to do with the moral merits of
those standards. There are a number of different kinds of natural law legal theories,
differing from each other with respect to the role that morality plays in determining
the authority of legal norms. The conceptual jurisprudence of John Austin provides
a set of necessary and sufficient conditions for the existence of law that
1
[ http://en.wikipedia.org/wiki/Law
distinguishes law from non-law in every possible world. Classical natural law
theory such as theory of Thomas Aquinas focuses on the overlap between natural
law moral and legal theories. Similarly, the neo-naturalism of John Finnis is a
development of classical natural law theory. In contrast, the procedural naturalism
of Lon L. Fuller is a rejection of the conceptual naturalist idea that there are
necessary substantive moral constraints on the content of law. Lastly, Ronald
Dworkin’s theory is a response and critique of legal positivism. All of these
theories subscribe to one or more basic tenets of natural law legal theory and are
important to its development and influence.

TWO KINDS OF NATURAL LAW THEORY

At the outset, it is important to distinguish two kinds of theory that go by name of

natural law. The first is a theory of morality that is roughly characterized by the
following theses.

 First, moral propositions have what is sometimes called objective standing

in the sense that such propositions are the bearers of objective truth-value;
that is, moral propositions can be objectively true or false. Though moral
objectivism is sometimes equated with moral realism (see, e.g., Moore 1992,
190: "the truth of any moral proposition lies in its correspondence with a
mind- and convention-independent moral reality"), the relationship between
the two theories is controversial. Geoffrey Sayre-McCord (1988), for
example, views moral objectivism as one species of moral realism, but not
the only form; on Sayre-McCord's view, moral subjectivism and moral inter
subjectivism are also forms of moral realism. Strictly speaking, then, natural
law moral theory is committed only to the objectivity of moral norms.
  The second thesis constituting the core of natural law moral theory is the
claim that standards of morality are in some sense derived from, or entailed
by, the nature of the world and the nature of human beings. St. Thomas
Aquinas, for example, identifies the rational nature of human beings as that
which defines moral law: "the rule and measure of human acts is the reason,
which is the first principle of human acts" (Aquinas, ST I-II, Q.90, A.I). On
this common view, since human beings are by nature rational beings, it is
morally appropriate that they should behave in a way that conforms to their
rational nature. Thus, Aquinas derives the moral law from the nature of
human beings (thus, "natural law").

But there is another kind of natural law theory having to do with the relationship of
morality to law. According to natural law theory of law, there is no clean division
between the notion of law and the notion of morality. Though there are different
versions of natural law theory, all subscribe to the thesis that there are at least some
laws that depend for their "authority" not on some pre-existing human convention,
but on the logical relationship in which they stand to moral standards. Otherwise
put, some norms are authoritative in virtue of their moral content, even 7 when
there is no convention that makes moral merit a criterion of legal validity. The idea
that the concepts of law and morality intersect in some way is called the Overlap
Thesis.

As an empirical matter, many natural law moral theorists are also natural law legal
theorists, but the two theories, strictly speaking, are logically independent. One can
deny natural law theory of law but hold a natural law theory of morality. John
Austin, the most influential of the early legal positivists, for example, denied the
Overlap Thesis but held something that resembles a natural law ethical theory.
 CLASSICAL NATURAL LAW THEORY

All forms of natural law theory subscribe to the Overlap Thesis, which asserts that
there is some kind of non-conventional relation between law and morality.
According to this view, then, the notion of law cannot be fully articulated without
some reference to moral notions. Though the Overlap Thesis may seem
unambiguous, there are a number of different ways in which it can be interpreted.
The strongest construction of the Overlap Thesis forms the foundation for the
classical naturalism of Aquinas and Blackstone. Aquinas distinguishes four kinds
of law: (1) eternal law; (2) natural law; (3) human law; and (4) divine law. Eternal
law is comprised of those laws that govern the nature of an eternal universe; as
Susan Dimock (1999, 22) puts it, one can "think of eternal law as comprising all
those scientific (physical, chemical, biological, psychological, etc.) 'laws' by which
the universe is ordered." Divine law is concerned with those standards that must be
satisfied by a human being to achieve eternal salvation. One cannot discover divine
law by natural reason alone; the precepts of divine law are disclosed only through
divine revelation.

The natural law is comprised of those precepts of the eternal law that govern the
behavior of beings possessing reason and free will. The first precept of the natural
law, according to Aquinas, is the somewhat vacuous imperative to do good and
avoid evil. Here it is worth noting that Aquinas holds a natural law theory of
morality: what is good and evil, according to Aquinas, is derived from the rational
nature of human beings. Good and evil are thus both objective and universal.

But Aquinas is also a natural law legal theorist. On his view, a human law (that is,
that which is promulgated by human beings) is valid only insofar as its content
conforms to the content of the natural law; as Aquinas puts the point: "[E]very
human law has just so much of the nature of law as is derived from the law of
nature. But if in any point it deflects from the law of nature, it is no longer a law
but a perversion of law" (ST I-II, Q.95, A.II). To paraphrase Augustine's famous
remark, an unjust law is really no law at all. The idea that a norm that does not
conform to the natural law cannot be legally valid is the defining thesis of
conceptual naturalism. As William Blackstone describes the thesis, "This law of
nature, being co-eval with mankind and dictated by God himself, is of course
superior in obligation to any other. It is binding over all the globe, in all countries,
and at all times: no human laws are of any validity, if contrary to this; and such of
them as are valid derive all their force, and all their authority, mediately or
immediately, from this original" (1979, 41). In this passage, Blackstone articulates
the two claims that constitute the theoretical core of conceptual naturalism: 1) there
can be no legally valid standards that conflict with the natural law; and 2) all valid
laws derive what force and authority they have from the natural law.

A CRITIQUE OF NATURAL LAW THEORY – THE

CONFLICT BETWEEN THE THEORY AND ITS
ADHERENTS

At the heart of natural law theory is the idea that everything in existence has a
“nature” which gives everything in existence a purpose and goal in life, and that all
these natures are related such that everything in existence is in one way or another
connected to other things in existence. This idea makes natural law theory conflict
with both atheism and agnosticism. Atheism denies the existence of a Creator for
the universe. This idea conflicts with natural law theory which holds that the
Creator’s existence has a purpose; the purpose is considered obvious—something
that is not under the control of the things in existence. Natural law theory,
therefore, holds that life must be aligned with this purpose rather than secondarily
adjusting purpose to life. The idea of a purpose for life—with the attribute that
purpose dominates existence rather than existence dominating purpose—cannot be
rationally accepted without first accepting the existence of a Creator. Nothing else
can subject existence to a pre-defined purpose. It is the case, therefore, that he who
denies God must also deny that existence has a purpose; so, he must deny natural
law theory in its entirety.

Furthermore, if relations do indeed exist between the things in existence, as natural

law theory effectively states, then all things in existence must have come into
existence at the same time. And how could all things have come to existence at the
same time? For, in the case of the relations between the things in existence,
nothing could exist without the preexistence of its survival needs in order to sustain
it upon arrival. The atheist would argue that all things in existence evolved from
one original thing. This position seems to ignore, however, the observable fact that
existence consists not only of living things but also of non-living things.
Obviously, there exist relationships between the living and the non-living, such as
the dependence on water and sunlight. Equally obvious is the fact that the non-
living things in existence cannot evolve. What the atheist must say, therefore, is
that both the living and the non-living came into existence at the exact same time
with perfect relations between one another, after which the living things evolved in
perfect co-ordination between themselves without there ever developing a conflict
in the relations, and all this by sheer coincidence! This is so utterly unimaginable
that one must say he who denies God must also deny the existence of relations
between things; so, he must deny natural law theory in its entirety.

While agnosticism accepts the existence of a Creator, it refuses to research His

reality deeply— who He is, why He created creation, etc. This position can only be
justified if one assumes that He did not intend anything with His creation and has,
since creation, completely disconnected Himself from His creation, as if He does
not care about how His creation proceeds in the existence He has given. Natural
law theory stands diametrically opposed to this view, as it claims existence has a
purpose. As explained, a purpose can only be given to existence by a Creator. The
presence of a purpose for creation therefore implies that the Creator did not
disconnect from his Creation after creating, as He set for it a course. Therefore,
neither the atheist nor the agnostic can accept natural law theory—which, by the
way, proves Grotius was wrong when he said, “What we have been saying would
have a degree of validity even if we should concede that which cannot be conceded
without the utmost wickedness, that there is no God, or that the affairs of men are
of no concern to him”. How strange it is, therefore, that western civilization—
which refuses God to play an active role in determining the life of man, today is
the ideology of the atheists and the agnostics—utilizes natural law theory.

THE INTERNAL FLAWS OF NATURAL LAW THOERY

As aforementioned, at the heart of natural law theory is the idea that everything in
existence has a “nature” which gives everything in existence a purpose and goal in
life, and all these natures are related in one way or another, such that everything in
existence is somehow connected to other things in existence. Specifically for the
human being, natural law theory adds to this the idea that the human mind is able
to identify the way of life that makes man live in accordance with his nature.
Essentially, it says that if man applies his mind, he will find the natural way of life,
and if he then lives his life in accordance with his nature, then he will fulfill the
purpose and goal of his life; hence, he will experience happiness in life. Also
explained earlier is why this is an implicit acknowledgement of the existence of a
Creator—purpose and relations prove his existence obligatory.
What natural law theory is effectively saying, therefore, is that the human mind can
find the purpose given to life by the Creator of life simply by looking at the natural
inclinations of creation. Clearly, this idea assumes that satisfaction of the natural
inclinations of creation is the purpose with which the Creator created existence.
What is the proof for this? In the absence of revelation, there is none. The
assumption “Because man has natural inclinations, it must be his purpose in life to
satisfy these inclinations” is purely speculative. It can also be imagined that the
Creator intended (some of) the natural inclinations of creation to be a test for
creation—that the Creator really wants man to abstain from (some of) what he
inclines to. This in turn means the natural law theory does not have the ability to
convince the mind because—based on these assumptions—it lacks a rational
argument. Natural law theory can only be believed, then, as one would believe in
Christianity or Judaism or Hinduism. So, the truth of the matter is, if one accepts as
fact the existence of a Creator, then one must accept as fact that only the Creator
knows with certainty what He intended with His creation. That only He knows
with certainty how He wants His creation to proceed in its life. In the absence of a
revelation—as in, information flowing from the Creator to creation—creation can
only speculate about all this. Natural law theory is not internally consistent, as its
conclusion (“the mind can determine natural law”) is not lined with its implied
assumptions (“there is a Creator who cares about creation”).

ITS NATURAL YET UNDESIRABLE CONSEQUENCES

If, for just a second, one were to ignore the fact that the human mind cannot
determine the purpose of life in the absence of revelation from the Creator, and just
assume the human mind can determine the purpose of life as the natural law theory
claims, then it will be shown that the natural law theory has very undesirable
natural consequences.
The human mind is limited, namely. The human mind can only think about what
has been experienced by man, either directly or by means of reliable narration, for
instance. This means that at any moment in time other than at the end of it, the
human mind will not be able to identify the complete natural law. For, the
complete natural law requires man to have experienced all that can be experienced,
and new experiences do not end until time ends. Until the end of time, therefore,
under the natural law theory, the law must follow the experiences of man. So what
natural law theory is really saying to humankind is, “Get in trouble first, and then I
will come to rescue you.” The guidance of natural law theory will leave man
struggling with problems until the end of time.

The minds of human beings are furthermore prone to disagreement because

experiences differ between humans, as well as their abilities to think. This means
that never will there develop a consensus about what the natural laws are. The
guidance of natural law theory will, therefore, leave man in perpetual conflict
about what is correct.2

CONCLUSION

Also to say that human laws which conflict with the Divine law are not binding,
that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and
therefore those which are most opposed to the will of God, have been and are
continually enforced as laws by judicial tribunals. Suppose an act innocuous, or
positively beneficial, be prohibited by the sovereign under the penalty of death; if I
commit this act, I shall be tried and condemned, and if I object to the sentence, that
it is contrary to the law of God, who has commanded that human lawgivers shall
not prohibit acts which have no evil consequences, the Court of Justice will

2
http://www.newcivilisation.com/home/2358/ideas-philosophy/a-critique-of-natural-law-theory/
demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance
of the law of which I have impugned the validity (Austin 1995, 158).

Of course, as Brian Bix (1999) points out, the argument does little work for Austin
because it is always possible for a court to enforce a law against a person that does
not satisfy Austin's own theory of legal validity.

Another frequently expressed worry is that conceptual naturalism undermines the

possibility of moral criticism of the law; inasmuch as conformity with natural law
is a necessary condition for legal validity, all valid law is, by definition, morally
just. Thus, on this line of reasoning, the legal validity of a norm necessarily entails
its moral justice. As Jules Coleman and Jeffrey Murphy (1990, 18) put the point.

The important things [conceptual naturalism] supposedly allows us to do (e.g.,

morally evaluate the law and determine our moral obligations with respect to the
law) are actually rendered more difficult by its collapse of the distinction between
morality and law. If we really want to think about the law from the moral point of
view, it may obscure the task if we see law and morality as essentially linked in
some way. Moral criticism and reform of law may be aided by an initial moral
skepticism about the law.

There are a couple of problems with this line of objection. First, conceptual
naturalism does not foreclose criticism of those norms that are being enforced by a
society as law. Insofar as it can plausibly be claimed that the content of a norm
being enforced by society as law does not conform to the natural law, this is a
legitimate ground of moral criticism: given that the norm being enforced by law is
unjust, it follows, according to conceptual naturalism, that it is not legally valid.
Thus, the state commits wrong by enforcing that norm against private citizens.
Second, and more importantly, this line of objection seeks to criticize a conceptual
theory of law by pointing to its practical implications ñ a strategy that seems to
commit a category mistake. Conceptual jurisprudence assumes the existence of a
core of social practices (constituting law) that requires a conceptual explanation.
The project motivating conceptual jurisprudence, then, is to articulate the concept
of law in a way that accounts for these pre-existing social practices. A conceptual
theory of law can legitimately be criticized for its failure to adequately account for
the pre-existing data, as it were; but it cannot legitimately be criticized for either its
normative quality or its practical implications.

A more interesting line of argument has recently been taken up by Brian Bix
(1996). Following John Finnis (1980), Bix rejects the interpretation of Aquinas and
Blackstone as conceptual naturalists, arguing instead that the claim that an unjust
law is not a law should not be taken literally.

A more reasonable interpretation of statements like "an unjust law is no law at all"
is that unjust laws are not laws "in the fullest sense." As we might say of some
professional, who had the necessary degrees and credentials, but seemed
nonetheless to lack the necessary ability or judgment: "she's no lawyer" or "he's no
doctor." This only indicates that we do not think that the title in this case carries
with it all the implications it usually does. Similarly, to say that an unjust law is
"not really law" may only be to point out that it does not carry the same moral
force or offer the same reasons for action as laws consistent with "higher law" (Bix
1996, 226).

Thus, Bix construes Aquinas and Blackstone as having views more similar to the
neo- naturalism of John Finnis discussed below in Section III. Nevertheless, while
a plausible case can be made in favor of Bix's view, the long history of construing
Aquinas and Blackstone as conceptual naturalists, along with its pedagogical value
in developing other theories of law, ensures that this practice is likely, for better or
worse, to continue indefinitely.

Founded in our nature and revealed to us by our reason, the moral law is known to
us in the measure that reason rings a knowledge of it home to our understanding.
The question arises: How far can man be ignorant of the natural law, which, as St.
Paul says, is written in the human heart (Romans 2:14). The general teaching of
theologians is that the supreme and primary principles are necessarily known to
everyone having the actual use of reason. These principles are really reducible to
the primary principle which is expressed by St. Thomas in the form: "Do good and
avoid evil". Wherever we find man we find him with a moral code, which is
founded on the first principle that good is to be done and evil avoided. When we
pass from the universal to more particular conclusions, the case is different. Some
follow immediately from the primary, and are so self-evident that they are reached
without any complex course of reasoning. Such are, for example: "Do not commit
adultery"; "Honour your parents". No person whose reason and moral nature is
ever so little developed can remain in ignorance of such precepts except through
his own fault. Another class of conclusions comprises those which are reached
only by a more or less complex course of reasoning. These may remain unknown
to, or be misinterpreted even by persons whose intellectual development is
considerable. To reach these more remote precepts, many facts and minor
conclusions must be correctly appreciated, and, in estimating their value, a person
may easily err, and consequently, without moral fault, come to a false conclusion.

A few theologians of the seventeenth and eighteenth centuries, following some

older ones, maintained that there cannot exist in anyone practical ignorance of the
natural law. This opinion however has no weight .Theoretically speaking, man is
capable of acquiring a full knowledge of the moral law, which is, as we have seen,
nothing but the dictates of reason properly exercised. Actually, taking into
consideration the power of passion, prejudice, and other influences which cloud the
understanding or pervert the will, one can safely say that man, unaided by
supernatural revelation, would not acquire a full and correct knowledge of the
contents of the natural law. In proof we need but recall that the noblest ethical
teaching of pagans, such as the systems of Plato, Aristotle, and the Stoics, was
disfigured by its approbation of shockingly immoral actions and practices.

As the fundamental and all-embracing obligation imposed upon man by the

Creator, the natural law is the one to which all his other obligations are attached.
The duties imposed on us in the supernatural law come home to us, because the
natural law and its exponent, conscience, tell us that, if God has vouchsafed to us a
supernatural revelation with a series of precepts, we are bound to accept and obey
it. The natural law is the foundation of all human law inasmuch as it ordains that
man shall live in society, and society for its constitution requires the existence of
an authority, which shall possess the moral power necessary to control the
members and direct them to the common good. Human laws are valid and
equitable only in so far as they correspond with, and enforce or supplement the
natural law; they are null and void when they conflict with it.

Logically, chronologically, and ontologically antecedent to all human society for

which it provides the indispensable basis, the natural or moral law is neither—as
Hobbes, in anticipation of the modern positivistic school, taught—a product of
social agreement or convention, nor a mere congeries of the actions, customs, and
ways of man, as claimed by the ethicists who, refusing to acknowledge the First
Cause as a Personality with whom one entertains personal relations, deprive the
law of its obligatory basis. It is a true law, for through it the Divine Mind imposes
on the subject minds of His rational creatures their obligations and prescribes their
duties.3

BIBLIOGRAPHY

 http://www.newadvent.org/cathen/09076a.htm
 http://www.iep.utm.edu/natlaw
 http://www.newcivilisation.com/home/2358/ideas-philosophy/a-critique-of-
natural-law-theory/
 http://en.wikipedia.org/wiki/Law

3
http://www.newadvent.org/cathen/09076a.htm