NATURAL LAW THEORY

Major argument
1. Laws and legal system under which we live can be criticized on moral grounds,
2. There are standards against which legal norms can be compared and sometimes found
wanting,
3. The standards against which law is judged have sometimes been described as “a higher
law”- not everything properly enacted as law is binding morally and the law does have
moral weight.
“Higher law”- the adherents of natural law believes that beyond, and superior to the laws made
by man are certain higher principles, the principles of natural law. These principles are immutable
and eternal. Man-made law may vary from one community to another with respect to matters of
everyday importance. But with regard to the highest matters, man-made law should be in
conformity with the principles of natural law.
What response should citizens have in situations where positive law conflicts with the higher law?
“Natural” law
The word “natural” in natural law provides the foundation for natural law. It provides the reason
why natural law ought to be obeyed. The idea is that man is part of nature. Within nature man has
a nature. His nature inclines him towards certain ends e.g. to procreate, self-preservation etc. to
seek such ends is natural to him. Those things which assist the achieving of such ends assist the
purpose of nature. Thus those laws that further the achievement by man of his natural end assists
the achievement of the purposes of nature. The laws which accord with the ultimate purposes of
man, constitute natural law.
In other words, those things which impede man from attaining his natural ends are contrary to
natural law. Thus if a man-made law obstructs the achievement by man of what has been decreed
by nature as his ends, then the law is contrary to natural law.

Development of Natural Law Thinking

1. The ancient world-Greece (classic origin of natural law)
a. Plato
To Plato can be traced the aspects of natural law thinking that regards values as having an external
existence and an eternal veracity. According to him, what for us are abstractions- redness, beauty,
equality, each had a permanent and unvarying existence, an existence that is independent of the
fact that certain things or actions in the world as we know it reflect the qualities themselves. This
is Plato’s doctrine of ‘forms’. Plato’s ‘forms’ are transcendental archetypes that exist
independently of the physical world, independently of human mind, independently of space or
time. Thus there is a ‘form’ of beauty, of which things on earth which have the quality beauty are
mere manifestations. Things such as justice and truth exist in their own right. All men can do is to

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attempt to reproduce them. To reproduce these qualities men must seek knowledge of eternal
truths, a quest that is man’s finest endeavor.
For Plato the fundamentals of ethics lay in absolute values that things would emulate. For example,
a beautiful object derives its beauty not from itself but from elements of beauty discovered within
the object itself. Another absolute value, according to Plato, is justice which has an inherent
connection to law: only laws that pursue the idea of justice can be considered right. According to
him, justice is a universal value that transcends local customs or conventions.
b. Aristotle
From the study of the natural world, Aristotle became conscious that the natural phenomena were
in a state of perpetual change- the child grows into an adult; the seed into a plant. There was always
progress.
Aristotle observed that the universe is dynamic, always engaged in the process of becoming, of
moving towards an end immanent within itself from the start. The philosophy that everything that
exists has a predetermined end is termed teleology.
In chapter 5 of the Nichomachean Ethics, in which Aristotle discusses the nature of justice, he
says: “there are two sorts of political justice, one natural and the other legal. The natural is that
which has the same validity everywhere and does not depend upon acceptance; the legal is that
which in the first place can take one form or another indifferently, but which, once laid down, is
decisive… Some hold the view that all regulations are of this kind on the ground that whereas
natural laws are immutable and have the same validity everywhere (as fire burns both here and in
Persia), they can see that notions of justice are variable. But this contention is not true as stated,
although it is true in a sense. Among the gods, indeed, justice presumably never changes at all; but
in our world, although there is such a thing as natural law, everything is subject to change; but still
some things are so by nature and some are not, and it is easy to see what sort of thing, among
those that admit of being otherwise, is so by nature and what is not, but is legal and conventional…
rules of justice established by convention and on ground of expediency may be compared to
standard measures; because the measures used in the wine and corn trades are not everywhere
equal: they are larger in wholesale and smaller in retail trade. Similarly laws that are not natural
but man-made are not the same everywhere, because forms of government are not the same either;
but everywhere there is only one natural form of government, namely that which is best.”
In another place Aristotle says: “if the written law tells against our case already, we must appeal
to the universal law, and insist on a greater equity and justice”. It seems that Aristotle accepted
that there is a natural and universal right and wrong, apart from the human ordinance or convention.
c. Stoics
In ancient Greece of the 3rd century before the start of the Christian-era, there was a philosophical
movement called stoicism. While most other Greek philosophers held the belief that their gods did
not actively engage in running and governing the universe, as they were considered too busy
enjoying themselves, the stoics held “god” to be an active part of the universe, ever busy with
directing and organizing the progress of nature.

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According to the stoics, therefore, existence—or as they called “Nature”—knows both a purpose
and an organization. As the human being is part of this Nature, they argued, the correct way of life
for the human being is the life which progresses in harmony with the purpose and organization of
Nature. The great stoic Zeno of Citium (334 – 262 BCE) expressed, “All things are parts of one
single system, which is called Nature; the individual life is good when it is in harmony with
Nature.”
The stoics believed the human being is capable of living in accordance with Nature. Because God,
they said, is Reason, the purpose and organization He has given Nature must follow reason. And
since, they observed, the human being possesses a mind which gives him the ability to reason, they
considered the human being as capable of identifying the purpose and organization given to Nature
by God. So, to the stoics, whatever the mind determines to be in accordance with the purpose and
organization given to Nature by God is good and will lead the human being to happiness, while
the bad is that which goes against the purpose and organization given to Nature by God and leads
to chaos. Because of the stoics’ definition of the good and the bad, respectively, as being in
accordance with and going against Nature, they are considered to be the first to uphold a natural
law theory.

The contribution of stoic school of philosophy may be represented in the writings of Cicero, Seneca
and Emperor Marcus Aurelius.
Cicero in his “on duties” work observed, ‘besides, the Stoics’ idea is to live consistently with
nature. I suppose what they mean is this: throughout our lives we ought invariably to aim at morally
right courses of action…’
‘Indeed this idea- that one must not injure anybody else for one’s own profit-is not only natural
law, an international principle: the same idea is incorporated in the statutes which individual
communities have framed for their national purposes. The whole point and intention of these
statutes is that one citizen shall live safely with another’
‘For there is an ideal of human goodness: nature itself has stored and wrapped this up inside our
minds. Unfold this ideal, and you will straightaway identify the good man as the person who helps
everybody he can, unless wrongfully provoked, harms none.’
In book three of On the Republic, Cicero lays the foundation for all natural law thought, before or
since. In an often quoted, lengthy passage that has survived the ages, he explains:
"True law is right reason in agreement with nature; it is of universal application,
unchanging and everlasting; it summons to duty by its commands, and averts from wrong-
doing by its prohibitions. And it does not lay its commands or prohibitions upon good men
in vain, although neither have any effect on the wicked. It is a sin to try to alter this law,
nor is it allowable to attempt to repeal a part of it, and it is impossible to abolish it entirely.

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 We cannot be freed from its obligations by Senate or People, and we need not look outside
ourselves for an expounder or interpreter of it. And there will not be different laws at Rome
and at Athens, or different laws now and in the future, but one eternal and unchangeable
law will be valid for all nations and all times, and there will be one master and ruler, that
is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge.
Whoever is disobedient is fleeing from himself and denying his human nature, and by
reason of this very fact he will suffer the worst penalties, even if he escapes what is
commonly called punishment . . ."
The quotation can be taken into three parts:
First, Cicero is referencing his desire for a balanced and mixed government as he had explained in
books one and two of On the Republic, taking Plato’s three divisions of the soul. Cicero is calling
for a harmony not only in the human person but in the commonwealth as a whole. A proper
action—one that is just and good—demands the harmony of the three faculties of man.
Second, real law comes not from the mind of man but from the essence of creation itself. That is,
man does not create law, he discovers it. It has always been there, though man has ignored,
mocked, distorted, or forgotten it. And, as it is always there, it can never be destroyed, while it can
always, critically, be remembered. A people might go two thousand years in ignorance (willful or
not) of the true law, but the true law remains. Truth, after all, is permanent and nothing man does
can destroy it, no matter how vicious our intentions.
Third, the true does not vary from place to place, time to time, or person to person. It must remain
the same across nations, cultures, religions, eras, and regions. If it is law, it is true, and if it is true,
it must be true for all times and all places and all persons, regardless of the accidents of birth.
Context: There is a true law, a right reason, conformable to nature, universal, unchangeable,
eternal, whose commands urge us to duty, and whose prohibitions restrain us from evil. Whether
it enjoins or forbids, the good respect its injunctions, and the wicked treat them with indifference.
This law cannot be contradicted by any other law, and is not liable either to derogation or
abrogation. Neither the senate nor the people can give us any dispensation for not obeying this
universal law of justice. It needs no other expositor and interpreter than our own conscience. It is
not one thing at Rome and another at Athens; one thing to–day and another to–morrow; but in all
times and nations this universal law must forever reign, eternal and imperishable. It is the sovereign
master and emperor of all beings. God himself is its author,—its promulgator,—its enforcer. He
who obeys it not, flies from himself, and does violence to the very nature of man. For his crime he
must endure the severest penalties hereafter, even if he avoid the usual misfortunes of the present
life.

Seneca in his letters wrote: ‘You ask what [is particularly man’s]. It is spirit, and the perfection of
his reason in that spirit. For man is a rational animal. Man’s ideal state is realized when he has
fulfilled the purpose for which he was born. And what is it that reason demands of him? Something
very easy- that he live in accordance with his own nature.’

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‘What has the philosopher investigated? What has the philosopher brought to light? In the first
place, truth and nature…and secondly. A rule of life, in which he has brought life into line with
things universal’
Emperor Marcus Aurelius in his meditations wrote: ‘if the power of thought is universal among
mankind, so likewise is the possession of reason, making us rational creatures. It follows, therefore,
that this reason speaks no less universally to us all with its “thou shalt” or “thou shalt not”. So then
there is a world-law; which in turn means that we are all fellow-citizens and share a common
citizenship, and that the world is a single city’
‘Injustice is a sin. Nature has constituted rational beings for their own mutual benefit, each to help
his fellows according to their worth, and in no wise to do them hurt; and to contravene her will is
plainly to sin against this eldest of all deities. Untruthfulness, too, is a sin, and against the same
goddess’
Stoics added fresh to the bones of natural law. They believed that natural law has qualities like
tolerance, forgiveness, compassion, honesty, uprightness etc. These were qualities to which reason
dictated that man should aspire in order that he might live in accordance with what nature ordained.
Stoics’ principal contribution to natural law doctrine is universality. They saw mankind as one
brotherhood. They saw the whole of the human race as being bound and united by the brotherly
love that was found in natural law.
d. Christianity
There is some parallels between the tenets of stoicism and Christian writers. But Christianity
offered an advantage. Stoicism taught that men should love one another, since it was in accord
with nature and thus man’s duty. Christianity taught – “love one another” and it added “and if you
do, there is a bonus-life everlasting.” For the stoic, death was the end. The only reward for living
a good life was to be able to die in the knowledge that one had done one’s duty.
With classic writers, the source of the higher standards is said to be inherent in the nature of things.
For the early Church writers, there is divine being who actively intervenes in human affair and
lays down express commands for all mankind.
Thomas Aquinas (1224-1274) is the most influential writer within the traditional approach to
natural law. Aquinas identified four different kinds of law, namely:
a. Lex aeterna (eternal law): timeless laws which apply to the ‘whole community of
the universe’ and are governed by God. He argues that this law is revealed to us
through right reason and not to know it is to be without direction
b. Lex divina (divine law): law revealed by scripture and divine revelation and not by
human reason.
c. Lex naturalis (natural law): that part of eternal law which is discovered by reason.
The first precept of natural law derives from one’s rational nature directed towards
avoiding evil and only doing good.

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 d. Lex humana(human law): supported by human reason and articulated through
human authorities for the common good; a human law is only valid if it conforms
to natural law.
According to Aquinas, positive law is derived from natural law in two different aspects. Sometimes
natural law dictates what the positive law should be, for example natural law requires that there be
a prohibition on murder. At other times, the natural law leaves room for human choice (based on
local customs), for example whether to travel on the left or right side of the road.
And what is the citizen’s obligation in regard to just laws or unjust law? According to Aquinas,
positive laws which are just “have the power of binding in conscience”. A just law is one which is
consistent with the requirement of natural law. According to him, a just law must meet three
conditions:
a) It is “ordered to the common good”,
b) The law giver does not exceed his authority and
c) The law burdens are imposed on citizens fairly.
A law that that fails in any of the three conditions is unjust. What are the citizen’s obligation in
regard to unjust laws?
The phrase lex iniusta non est lex (“an unjust law is not law”) is often ascribed to Aquinas and is
given as a summary of his position and natural law in general. Aquinas never used that exact phrase
though he used similar expressions. Aquinas said:
“Every human positive law has the Nature of law to the extent that it is derived from
Natural law. If, however, in some point it conflicts with the law of nature it will no longer
be law but rather a perversion of law”; and
“[unjust laws] are acts of violence rather than laws”
What does it mean to say that an apparently valid law is “not law”, “a perversion of law” or “an
act of violence rather than a law”?
First, it might mean that an immoral law is not valid law at all. The nineteenth century English
jurist, John Austin, interpreted statements by the English commentator Sir William Blackstone
(e.g. “no human laws are of any validity. If contrary to [the law of nature]” in the following manner:

“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…, the Court of Justice will
demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the
law which I have impugned the validity.”
A more reasonable interpretation of statement like “an unjust law is no law at all” is that unjust
laws are not laws “in the fullest sense”. To say that unjust laws are “not really law” may only be
to point out that they do not carry the same moral force or offer the same reasons for action that
come from law consistent with “her law”. .This more likely the sense in which Aquinas made his
remarks.
To say that an unjust law is not law in the fullest sense is the first step to a further argument. For
instance, “this law is unjust; it is not law in the fullest sense, and therefore citizens can in good
conscience act as if it were never enacted; that is, they should be free to disobey it”. This is a

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common understanding of the expression that unjust law is no law at all. However that conclusion
is controversial. There are moral reasons for obeying even unjust law” for example, if the law is
part of a generally just legal system, and public disobedience of the law might undermine the
system, there is a moral reason for at least minimal public compliance with the unjust law.
Aquinas stated that a citizen is not bound to obey “a law which imposes an unjust burden on its
subjects” if the law “can be resisted without scandal or greater harm”

Hugo Grotius (1583- 1645 CE)

Dutch philosopher Grotius was the first to separate natural law from God. He is, therefore,
considered the father of the natural law theory on which western civilization was built.
In a lot of what Grotius says, the voice of Aquinas can be heard. In his departure point, namely,
Grotius agrees with Aquinas that the human being has been created by God with natural
inclinations. According to Grotius the emotions of man are many, but all come forth from just two
essential inclinations—survival and society; that man wants to remain alive and wants to live his
life together with others, and is, therefore, the core of human nature. The third core element of
human nature according to Grotius is the mind.
As the core of human nature consists of three, Grotius said, the human being can follow one of
three motivators in his life; he can follow the emotions which are linked to his desire to stay alive,
or the emotions which are linked to his desire to live together with others, or he can follow his
mind. Of these three, the mind can identify the actions that achieve at least one of the two essential
Inclinations without hurting the other, Grotius said. And, he continued, these actions would
perfectly agree with human nature: they would come forth from the mind and be aligned with the
human essential inclinations. So, these actions make up the natural law, he concluded.
Although Grotius himself was deeply religious, this reasoning of his detached natural law theory
from God. Unlike in the theory of Aquinas, in Grotius’ natural law theory, the human nature is not
used to identify the law determined by God. Rather, in it, man searches for the correct law in his
own nature.
Grotius says, “The mother of right – that is, of natural law – is human nature”. While Aquinas held
the view that man must follow the natural law because it emanates from God, Grotius’ main
argument for following natural law is that this law fits human nature. Whoever does not follow
“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

we have been “What

are of no concern to him”
tural law, Grotius said, effectively behaves inhumanely; hence, Grotius said,
e. Modern natural law (18th -20th Century)
18th century
The 18th century was referred as the ‘age of reason’ in which secularism and rationalism held sway
and natural law came under attack. The i8th century thinkers denounced the social contractarian
theory. The writers included Immanuel Kant, David Hume, C. Montesquieu and Edmond Burke.
1. Immanuel Kant.
2. David Hume.
3. Edmond Burke

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19th century
20th century
There have been several natural law writers from the beginning of the 20 th Century to date. These
includes Lon Fuller, HLA Hart and John Finnis.
1. Lon Fuller
2. HLA Hart
3. John Finnis

Criticism of Natural Law Theory

1. The unacceptable jump.
John Austin and, before him, David Hume pointed out the inherent logical inconsistency of the
natural law doctrine. Half way through the doctrine’s exposition came a switch from ‘is’ (i.e. what
man’s nature is) to ‘ought’ (i.e. how man ought to behave). They did not object to the chain of
reasoning based on ‘is’ (i.e. fire is hot; fire burns); nor the chain of reasoning based on ‘oughts’
(man ought to love his fellow; an individual ought to show forgiveness; if A offend B, B ought to
forgive him). What they objected is the unacceptable jump of natural law- because man’s nature
is such and such, he ought to behave in such and such way.
Kelsen agrees that natural law obliterates the essential difference between the scientific laws of
nature (the rules by which the science of nature describes its objects) and the rules of ethics or
morality.1 Behavior that is in conformity with a pre-existing standard may be described as good,
right or correct; and behavior that is not in conformity with the norm as wrong, bad or incorrect.
But this are value judgments. Such value judgments may be expressed by saying that a person
ought or ought not to behave as he does. Kelsen attacks such argument saying, ‘value is not
immanent in natural reality. Hence value cannot be deduced from reality. It does not follow from
the fact that something is, that it ought to be or to be done, or that it ought not to be or not to be
done. The fact that in reality big fish swallow small fish does not imply that the behavior of fish is
good, nor yet that it is bad. There is no logical inference from the “is” to “ought”, from natural
reality to moral or legal value.’2
Kelsen explains that the content of human laws depends on what the laws are designed to achieve.
And what the laws are designed to achieve depends on the kind of society that the law maker
wishes to exist. A decision that entails value judgment. Values may conflict. For example, a
decision has to be made between personal freedom and social security. This decision cannot be
answered in the same way as the question whether iron is heavier than water, or water heavier than
wood. The question as to which of the two conflicting values is to be preferred can only be decided
emotionally, according to feelings or wishes of whoever makes the decision.
That is why Kelsen says that laws and systems of government supposedly all derived from natural
law vary from place to place and from age to age. There is no uniformity between philosophers as
to the conclusions to be deduced from natural law. As Ross observed, ‘like a harlot, natural law is
at the disposal of everyone’.

1
‘Natural Law Doctrine and Science’ in Hans Kelsen what is justice? See also A Ross on law and justice Chap 2
2
Ibid, P 140

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Kelsen argues that natural law lawyers do not deduce natural law from man’s nature, but to
presuppose natural law principles and then deduce from these the characteristics of an ideal man.
They say what principles ought to rule supreme and then from these say how men ought to behave.
Kelsen challenges natural lawyers’ claim to have sole access what principles ought to rule
supreme- he denies the natural lawyer’s claim to infallibility.

2. Superfluity.
Kelsen points out that ‘if it is possible- as the natural law doctrine asserts- to find the rules of
natural law by an analysis of nature’ if, as some writers assert, the law of nature even self-evident,
then the positive law is quite superfluous. Faced by the existence of a just ordering of society,
intelligible in nature, the activity of positive-law makers is tantamount to a foolish effort to supply
artificial illumination in bright sunshine. This is another consequence of the natural-law doctrine.
But none of them has declared that the existence of natural law makes the existence of positive
law superfluous. On the contrary. All of them insist upon the necessity of positive law.’

3. Good/bad contradiction.
Kelsen observes that natural lawyers justify positive law (and sanctions to enforce it) on the ground
that these are needed because of man’s badness. At the same time, their doctrine requires an
assumption that man is good, because it is from human nature that the principles of natural law are
to be deduced. Therefore natural lawyers entangle themselves in a contradiction.

Two philosopher (Aquinas and Aristotle) integral to the theory have different views about God’s
role in nature, which confuses the issue, especially when trying to decipher if the theory relies on
the existence of God
4. Insincerity.
Kelsen criticizes natural lawyers on the ground of their insincerity. They fail to carry their doctrine
to its logical conclusion. According to natural law doctrine, if positive law conflicts with natural
law, it is void. Kelsen asks, do they abide by the consequences of this action? Where a law of the
sate conflicts with natural law do natural lawyers in fact say that a citizen should disobey it? Kelsen
examines the response of certain natural law writers.
Pufendorf concedes that, ‘civil law would, of course be passed which is opposed to natural laws’.
But he believes that ‘none but an insane man, and one who had in mind the destruction of the state,
would wish to pass legislation of this kind’. This is the presumption. and it is not open to an
individual to challenge the presumption since’ the presumption of justice stands always on the side
of the prince’. Therefore, the citizen must obey the law. Any judgment by him that the civil law
conflicts with natural law is irrelevant.
For Locke, resistance to civil law is justified only if force is used against the citizen ‘unjustly and
unlawfully’. ‘Unjustly’ meaning contrary to natural law and ‘unlawfully’ meaning contrary to civil
law. But since whether force has been so used is a matter not for the individual but for the
authorities to decide, justifiable resistance is in practice ruled out.
Natural lawyers argue that since the position of civil government derives its authority from the
natural law, opposition to civil powers cannot be justified. Grotius argues that, ‘… if unjust

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treatment be inflicted upon us, we ought to endure it rather than resist by force’. For Pufendorf,
‘the lesser injuries of the princes should be overlooked out of consideration for the nobility of their
position and the other benefits, and indeed for the sake of our fellow citizens and the entire state…’
Kelsen concluded that the thinking of the classic natural thinkers has been used not as a basis for
criticizing or challenging the civil law (authorities) but as a means of strengthening it. The natural
law doctrine has a strictly conservative character.

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