Natural Law Theory Approach

A Written Report


College of Law
University of Eastern Philippines
University Town, Northern Samar



In Partial Fulfillment
Of the Requirement for the Course
Human Rights Law





June 2014






ABSTRACT
In the context of our predecessors on ancient philosophy,
natural law is a universal rule based on reason alone. That is
higher than human positive law. Under natural law theory, reason
establishes a universal precept that identifies good or bad even
if there no same principles established in civil law.
The term is defined as a philosophical system of legal and
moral principles purportedly deriving from a universalized
conception of human nature or divine justice rather than from
legislative or judicial action. (Blacks Law Dictionary 9
th
ed.)













Introduction
"Natural law, as it is revived today, seeks to organize the
ideal element in law, to furnish a critique of old received
ideals and give a basis for formulating new ones, and to yield a
reasoned canon of values and a technique of applying it. I
should prefer to call it philosophical jurisprudence. But one
can well sympathize with those who would salvage the good will
of the old name as an asset of the science of law." (Roscoe
Pound, The Formative Era of American Law (1938).
To begin with, the cradle of natural law speaks of the
divine order of the progenitor. It is anchored on the instinct
of man and his profound virtue which is pity. Man is naturally
reasonable and his inclination to do well is the core of natural
law.










Importance of natural law
The crucial part of natural law is natural inclination,
rational inclination to obey the divine. Without natural law,
faith cannot be cultivated into a general mandate of conscience.
Definition
Natural law is a system of law that is determined by nature,
and so is universal. (Strauss Leo, 1968 Natural Law
International Encyclopedia of Social Sciences, Macmillan). The
classic definition of the term is that natural law refers to the
use of reason to analyze human nature both social and personal
and deduce binding rules of moral behavior from it. (Natural
Law, Columbia Electronic Encyclopedia, 6
th
ed. Columbia
University Press. 2007). On the other hand, in the context of
legal theory, natural law is considered as basis of
interpretation of positive law. To understand the concept,
philosophers had theorized many definitions and explanations of
natural law. First one to attempt is Plato. According to him, we
live in a natural universe. He believed that there is even
higher truth than justice that only a very few will come to
know. This higher truth Plato calls the Good, which is the
cosmic principle of order that unites both physical and ethical
principles in a grand synthesis. It is that which gives the
whole universe and everything in it, a meaning and purpose.
1

However, to explain the Good is near to quite impossible because
it cannot be grasped simply in logical terms. For Plato, knowing
the Good is to have a supernatural insight into the rational
structure of the whole universe. There is an element of
mysticism in his theory, but this in no way contradicts his
emphasis upon rational knowledge. The dialectical acquisition of
knowledge is the necessary condition of grasping the Good.
2

History
The sophists
The stoics
Greek philosophy
Contemporary times
Natural law and natural rights
What follow natural law are natural rights. Natural law may
be defined as the divine inspiration in man of the sense of
justice, fairness, and righteousness, not by divine revelation
or formal promulgation, but by internal dictates of reason
alone.
3
The binding force of natural law grasp all men at all
times, in every individual, there is always a fundamental

1
Brian R. Nelson, Western Political Thought: From Socrates to the Age
of Ideology, 2nd ed., (New Jersey: Prentice Hall.,)p. 34.

2
Ibid, p. 35.

3
Hector S. De Leon and Hector M. De Leon, Jr., The Law on Obligations and
Contracts, 2011 ed., (Philippines: Rex Printing Company Inc.,) p. 2
understanding of right and wrong, based on the basic standard of
the criterion that is good and evil. In other words, there is an
innate nature in every man known in his heart and conscience by
the dictates of his moral nature and is not a product of
theorizing which is the good or evil. Thus, we know that killing
for the sake of killing is bad or evil because it is contrary to
what we believe is just, fair or righteous. When we speak of
this inward instinct of justice, fairness, and righteousness in
man as divinely inspired by the dictates of his higher nature,
we are talking about natural law or the law of nature.
4
As
compared to divine law, there is difference. Divine law is the
law of religious faith made known to man by means of direct
revelation. On the other hand, natural law is impressed in man
as the core of his higher self at the very moment of being or
even before that.
5

Natural rights are those rights possessed by every citizen
without being granted by the State for they are given to man by
God as a human being created to His image so that he may live a
happy life.
6
The examples of this are the right to life, liberty,
and property. According to Justice William Douglas (U.S. Supreme
Court) explains natural rights in these words: Man gets his

4
Ibid., p. 3

5
Ibid.

6
Hector S. de Leon; Textbook on the Philippine Constitution; 2008
edition (Quezon City: Rex Printing Company Inc.), p. 116
rights from the creator. They come to him because of the divine
spark in every human being. Thus deep within his conscience,
man discovers a law he has not laid upon himself but inscribed
by God and which he must obey. Even natural law, however,
imposes limitations against the misuse or abuses in the exercise
of ones right. Every right involves a corresponding
responsibility to others and to society.
7

Natural law and human rights
Natural law and human rights are closely connected to each
other as interdependent forces. A question is asked commonly,
what are human rights?
Human rights are commonly understood as being those rights
which are inherent to human being. The concept of human rights
acknowledges that every single human being is entitled to enjoy
his or her human rights without distinction as to race, color,
sex, language, religion, political or other opinion, national or
social origin, property, birth or other status. Human rights are
legally guaranteed by human rights law, protecting individuals
and groups against actions which interfere with fundamental
freedoms and human dignity.
8
They are expressed in treaties,
customary international law, bodies of principles and other
sources of law. Human rights law places an obligation on States

7
Ibid. p. 117

8
Human Rights A Basic Handbook for UN Staff (Office of the High Commissioner
for Human rights, United Nations Staff College Project). P. 2
to act in a particular way and prohibits States from engaging in
specified activities. However, the law does not establish human
rights. Human rights are inherent entitlements which come to
every person as a consequence of being human. Treaties and other
sources of law generally serve to protect formally the rights of
individuals and groups against actions or abandonment of actions
by Governments which interfere with the enjoyment of their human
rights.
9

The following are some of the most important characteristics
of human rights:
1. human rights are founded on respect for the dignity and
worth of each person;
2. human rights are universal, meaning that they are applied
equally and without discrimination to all people;
3. human rights are inalienable, in that no one can have his
or her human rights taken away other than in specific
situations for example, the right to liberty can be
restricted if a person is found guilty of a crime by a
court of law;
4. Human rights are indivisible, interrelated and
interdependent, for the reason that it is insufficient to
respect some human rights and not others. In practice, the
violation of one right will often affect the respect of

9
Ibid. p. 3
several other rights. All human rights should therefore be
seen as having equal importance and of being equally
essential to respect for the dignity and worth of every
person.
10


Aristotles Theory of Natural Law
Aristotle did affirm the existence of a law of nature, but
he was admired by and influenced the American Founders more for
his related views on republican government and the rule of law.
Aristotle was regularly included by the Founders in their lists
of reliable and authoritative political philosophers. When asked
once what was the philosophy underlying the Declaration of
Independence, Jefferson replied that: All its authority rests
on the harmonizing sentiments of the day, whether expressed in
conversation, in letters, printed essays, or in the elementary
books of public right, as Aristotle, Cicero, Locke and Sidney.
John Adams similarly wrote that the principles of the American
Revolution are the principles of Aristotle and Plato, of Livy
and Cicero, and Sidney, Harrington, and Locke; the principles of
nature and eternal reason; the principles on which the whole
government over us now stands.
11


10
Ibid.

11
Adams, Novanglus, No. 1.
The following are acknowledged doctrines which Aristotle
devised himself:
1. government should govern for the good of the people, not
for the good of those in power;
2. there is a natural aristocracy, and skilled statecraft
arranges things so that this element acquires authority,
or, failing that, blends democratic and oligarchic
influences in society to approximate to that outcome;
3. mixed regimes are better than pure regimes, because they
are more stable;
4. the best form of government in nearly all circumstances
involves the balancing of aspects of all three pure regimes
(kingship, aristocracy, and timocracy);
5. A pure democracy can easily turn into a tyranny of the
majority.

For Aristotle there is a very close connection between
justice and law, so much so that he is willing to say that the
general virtue of justice may be alternatively described as
lawfulness.
12
The opposition commonly drawn between natural
justice (and natural right) and natural law is therefore
unwarranted in the case of Aristotle.
13
The reason is not

12
Nicomachean Ethics, V.1

13
Richard Tuck, Natural Rights Theories, Cambridge, CUP 1982.
difficult to see: particular judgments about what is equal or
just immediately imply corresponding generalizations, since
there would be no reason why similar cases should not be decided
in the same way. That this allotment should be 80/20 implies
that similar cases should have similar allotments. Thus, on
Aristotelian terms, a law is by nature if the equality which
it aims to ensure is such that it is justified by appeal to
something other than an agreement or decision. Similarly a law
would be contrary to nature if it forbade equalities which a
law which was by nature would aim to effect, or if it
commanded corresponding inequalities. By a law of nature,
then, Aristotle does not mean statutes, or a system of rules,
discernible by intellectual perception; rather, what he means
are recurring equalities or inequalities in the nature of
things, which, he considers, serve to justify general claims
involving the distribution of things and actions. Three
important things should be noted about a law of nature in this
sense:
First, Aristotle thinks that a law of nature may
appropriately be invoked as grounds for disobeying a human law
which contravenes it, since the law of nature has the higher
authority. This is clear from his favorable reference to the
Antigone of Sophocles and his willingness to contemplate jury
nullification in the Rhetoric.
14
It is unclear from the text on
what grounds Aristotle held that a law of nature has the higher
authority; but we may speculate that his view here is connected
with his views expressed elsewhere that the ultimate causes of
nature are divine, and that human artifice should assist or
complete nature rather than subvert it.
15

Second, it may reasonably be wondered why, if something is a
law of nature, it is not recognized and followed universally
by human beings. In fact no prescription seems to be
acknowledged by all cultures and times, not even Do not
murder. The puzzling language of the Nicomachean Ethics, which
defines nature as something that has the same force or
influence in all times and places, suggests how Aristotle
would deal with this problem.
16
His view seems to be that nature,
for its part, invariably suggests to us the appropriateness of
framing certain precepts (viz. concerning what is just by
nature), but we, for our part, need to have the appropriate
sensitivity to this influence. For example, on this view we
frame a precept of the form, Do not murder, and say that this
is just by nature, in view of our being sensitive to the

14
http://www.nlnrac.org/classical/aristotle
15
Ibid. ,

16
Ibid.,

nearness and dearness of each human being to every other.
17

This nearness and dearness is an objective reality about our
similarity and potential reciprocal relationships with members
of the same kind; yet we may fail to be sensitive to this
reality. We do not, of course, merely intellectually perceive
that human beings are near and dear to one another; rather, we
sense or feel these ourselves, which is to say that we are
inclined to regard anothers good as our own good, and we are
prepared to act to protect and promote it. Yet it can happen, in
some cultures or circumstances, that our sensitivity is
suppressed or deformed, and in those unusual conditions the
precept Do not murder will either not be articulated by us or
will fail to have force. In such cases it is not nature that has
changed, or the law of nature; nature remains the same, but we
have failed to respond adequately to it, through a failure of
sensitivity.
Third, it seems to be Aristotles view that a law of nature
or what is just by nature never has an effect on our actions
without some admixture of the conventional and the arbitrary. No
precept is purely natural; all precepts are framed with a view
to an application to particular circumstances, and for this
something arbitrary will be required. Aristotles helpful
example is of the difference between wholesale and retail

17
Ibid.,
measures: in all times and places, people use larger measures in
wholesale markets than in retail; they do this in view of the
nature of the casethe wholesale market involves a higher-level
distribution of goods for sale, and therefore it calls for
larger measuresand in this sense by nature wholesale measures
are larger than retail; nonetheless, which measures to use at
each level is purely a matter of convention like kilograms
rather than pounds, and grams rather than ounces.
The Law of Nature is so unalterable, that God himself cannot
change it. For the Power of God be infinite, yet we may say,
that there are some Things to which this infinite Power does not
extend, because they cannot be expressed by Propositions that
contain any Sense, but manifestly imply a Contradiction. For
Instance then, as God himself cannot effect, that twice two
should not be four; so neither can he, that what is
intrinsically Evil should not be Evil. And this what Aristotle
meant. Some Things are no sooner mentioned than we discover
Depravity in them. For as the Being and Essence of Things after
they exist, depend not upon any other, so neither do the
Properties which necessarily follow that being and Essence. Now
such is the Evil of some Actions, compared with a Nature guided
by right Reason. Therefore God suffers himself to be judged of
according to this Rule.
18

Stoic Natural law
The Stoics claim the order of the universe is fundamentally
rational. Human rationality, therefore, is a persons innate
moral compass. To reason and act rationally is to be in harmony
with the universe. Violence and vice are consequences of
irrationality and not being in harmony with universal laws.
19

They viewed Natural law, as a ruling principle based on
universal reason. They believed that this inherent rationality
in the universe was created by God, whose law applied
universally and equally.
20
According to Marcus Aurelius, emperor
of Rome and one of the greatest of the later Roman stoics, the
rational animal is consequently also a political and social
animal Human beings, therefore, can acquire virtue only as
citizens of the state and members of society, not in withdrawal
from their public duties and obligations to their fellow
citizens. These obligations, the stoics argued, are known by all
human beings on the basis of reason alone. They are therefore,
what the stoics called natural laws, that is, ethical
obligations we to one another that exist by nature, not by

18
Hugo Grotius, The Rights of War and Peace, Vol. 1, Chapter I: What War is,
and what Right is.
19
http://sevenpillarsinstitute.org/morality-101/agency-theory/natural-law

20
http://orias.berkeley.edu/summer2004/summer2004antnatlaw.htm

convention, and are therefore universally valid. They are known
and apply in all societies the world over.
21

Cicero
Cicero (106-43 BCE) is an influential Roman jurist who was
heavily influenced by the Stoics in his understanding of natural
law, which he described by writing that "True law is right
reason in agreement with nature." It is universal ("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"), divinely-inspired, and
divinely-enforced. Law is not necessarily just, but justice is
inherent in nature.
22

Hobbes
Thomas Hobbes had a different notion as regards natural law.
Since he is considered as the first great modern theorist, his
viewpoint differs from the classics. Hobbes was born during war
so his understanding of natural law is of negative approach. He
rejects the teleological view of human nature as a false and
dangerous illusion. Instead, he sees human nature as the
restless striving for power after power that has no end and
therefore no happiness or perfection. The rejection of end-
directed motion underlies Hobbess revolution in thinking from

21
Brian R. Nelson: Western Political Thought: From Socrates to the Age of
Ideology, 2nd Edition (New Jersey: Prentice Hall), pp. 74-75

22
http://orias.berkeley.edu/summer2004/summer2004antnatlaw.htm
classical natural law, and its perfectionist principle of
virtue, to modern natural rights, and its minimalist principle
of self-preservation.
23

St. Thomas Aquinas
Aquinas bases his doctrine on the natural law, as one would
expect, on his understanding of God and His relation to His
creation. He grounds his theory of natural law in the notion of
an eternal law in God. In asking whether there is an eternal
law, he begins by stating a general definition of all law. Law
is a dictate of reason from the ruler for the community he
rules. This dictate of reason is first and foremost within the
reason or intellect of the ruler. It is the idea of what should
be done to insure the well-ordered functioning of whatever
community the ruler has care for. It is a fundamental tenet of
Aquinas political theory that rulers rule for the sake of the
governed, like for the good and well-being of those subject to
the ruler. Aquinas concludes that God has in His intellect an
idea by which He governs the world. This Idea, in God, for the
governance of things is the eternal law.
24





23
http://www.nlnrac.org/earlymodern/hobbes

24
http://www.aquinasonline.com/Topics/natlaw.html
Natural law: Criticism
Attack
Defense
Philosophers quotation
Conclusion