Transcript Natural Law

Natural Law
Zhang Fan
Introduction
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Overview of Natural Law Theories
Methodology
Main Tenets
Major Schools and Great Thinkers
Historical Function of Natural Law Theories
Natural Law Thinking in Ancient China
Critics of Natural Law
Overview of Natural Law
Theories
• Natural law is that "unwritten law" that is more
or less the same for everyone everywhere. To be
more exact, natural law is the concept of a body
of moral principles that is common to all
humankind and, as generally posited, is
recognizable by human reason alone. Natural
law is therefore distinguished from -- and
provides a standard for -- positive law, the
formal legal enactments of a particular society.
Methodology
• Teleological view of the universe and
human society: regarding the world,
especially human society, as having an
ultimate purpose, some state of perfection
towards which society must inexorably
advance. Law, as a devise for promoting
the desired good, is regarded as being a
social necessity.
Main Tenets
• Doing Good but avoid evil
• Justice
• Rule of Law
• Natural Rights
• Law and Morality closely related
• Natural Law is universal, objective,
immutable and eternal.
Introduction
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Overview of Natural Law Theories
Methodology
Main Tenets
Major Schools and Great Thinkers
Historical Function of Natural Law Theories
Natural Law Thinking in Ancient China
Critics of Natural Law
Major Schools and Great
Thinkers
• Ancient Greek Roots: Socrates, Plato ,
Aristotle, Stoics, Cicero
• Theological School: St. Augustine,
Aquinas
• Classical Natural Law Theory: Grotius
• Natural Law Theory after World War
II
Socrates and Plato
• Socrates (470-399 BC) and Plato (428 –
348 ) argued that there were principles of
morality which it was possible to discover
through processes of reasoning and
insight. Law based on these principles
would thus be the product of correct
reasoning.
Aristotle (384-322BC)
• Aristotle recognized nature as the capacity for
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development inherent in particular things and
aimed at a particular end or purpose, both in
respect to physical and moral phenomena.
He also made a distinction between natural
justice and conventional justice. Natural justice
is common to all humanity, a kind of ‘state of
goodness’. Conventional justice varies from state
to state, for particular communities.
Stoics
• Stoicism provided the most complete
classical formulation of natural law. The
Stoics argued that the universe is
governed by reason, or rational principle;
they further argued that all humans have
reason within them and can therefore
know and obey its law.
Cicero (106-43BC)
• Cicero argued that nature provided rules
by which humanity ought to live; these
rules, which could be discovered through
reason, should form the basis of all law. In
De Legibus he argued that ‘true law is
right reason in agreement with nature, it
is of universal application, unchanging and
everlasting.’
Theological School
• Christian philosophers readily adapted Stoic
natural law theory, identifying natural law with
the law of God. For Thomas Aquinas, natural
law is that part of the eternal law of God ("the
reason of divine wisdom") which is knowable
by human beings by means of their powers of
reason. Human, or positive, law is the
application of natural law to particular social
circumstances. Like the Stoics, Aquinas
believed that a positive law that violates
natural law is not true law.
St. Thomas Aquinas (1224-74)
• Four Categories:
– Eternal law- God’s rational guidance of all creatures.
– Divine law –that part of law manifested through
revelations in the Christian scriptures.
– Natural law – participation of rational creatures in the
eternal law through the operation of reason.
– Human law – derived from both divine law and
natural law. This law may be variable in accordance
with the time and circumstances in which it is
formulated, but its essence is to be just. Thus, lex
injusta non est lex (an unjust law is not law).
Classical Natural Law
• With the secularization of society resulting from
the Renaissance and Reformation, natural law
theory found a new basis in human reason. The
17th-century Dutch jurist Hugo Grotius believed
that humans by nature are not only reasonable
but social. Thus the rules that are "natural" to
them -- those dictated by reason alone -- are
those which enable them to live in harmony with
one another. From this argument, by the way,
Grotius developed the first comprehensive theory
of international law.
Natural Rights
• Natural law theory eventually gave rise to a
concept of "natural rights." John Locke argued
that human beings in the state of nature are
free and equal, yet insecure in their freedom.
When they enter society they surrender only
such rights as are necessary for their security
and for the common good. . Each individual
retains fundamental prerogatives drawn from
natural law relating to the integrity of person
and property (natural rights).
Inalienable Rights
• This natural rights theory provided a
philosophical basis for both the American
and French revolutions. Thomas Jefferson
used the natural law theory to justify his
trinity of "inalienable rights" which were
stated in the United States Declaration of
Independence.
Natural Law Theory after
WWII
• Lon Fuller – Inner Morality of law,
Proceduralism
• John Finnis – Aquinas, Conceptualism
• Ronald Dworkin: Law as Integrity
Lon Fuller
• Fuller calls his principles 'procedural' rather than
substantive. He also calls the morality that's
required for law, 'internal morality.' Substantive
principles describe what is right and what is wrong.
They tell us how to regulate our conduct, i.e.,
whether polygamy is wrong. Procedural principles
give criteria for forming substantive moral principles
into law. Fuller's view is that natural justice enters
the law at the procedural level. There are certain
procedural principles which are necessary for
anything to be a law in the first place. These
principles make the law procedurally just, even if
not substantively just
John Finnis
• Arguing about what is "law" or "not law" is
silly; what matters is what judges (and
other officials) may or must take into
account
• Natural lawyers believe in a mindindependent moral reality that provides
objectively valid standards of right conduct
John Finnis
• Natural law is a set of principles of
practical reasonableness to be utilized in
the ordering of human life and human
community in the process of creating
optimum conditions for humans to attain
the objective goods. These conditions
constitute the ‘common good’. Finnis lists
seven objective goods which he regards as
being irreducible basic. These are:
John Finnis
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Life- the first basic value;
Knowledge- a preference for true over false believe;
Play- performance for the sake of it;
Aesthetic experience – the appreciation of beauty;
Friendship or sociability – acting for the sake of one’s
friends’ purpose or well being;
• Practical reasonableness – the use of one’s intelligence
to choose actions, lifestyle, character, etc;
• Religion – the ability to reflect on the origins of the
cosmic order and human freedom and reason.
Ronald Dworkin
• Ronald Dworkin made strong criticisms to
both Natural Law and Legal Positivism and
many people say that Dworkin's theory
occupies a middle ground between Natural
Law and Legal Positivism as the third
theory of law.
• From rules to principles to moral fiber to
Hercules---the idea of integrity
Ronald Dworkin
• Dworkin is most famous for his theory of law
as integrity, which is given its fullest statement
in his book Law's Empire. Dworkin's theory is
interpretive. He argues that law is best
understood as an interpretation of the political
practices of a society. Thus, in deciding a legal
case, judges decide in accord with the
interpretation of the society's institutions and
legal texts that best fits and justifies the
society's history and practices.
Introduction
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•
•
•
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Overview of Natural Law Theories
Methodology
Main Tenets
Major Schools and Great Thinkers
Historical Function of Natural Law Theories
Natural Law Thinking in Ancient China
Critics of Natural Law
Historical Function of Natural
Law Theories
• Divinization of Law
• Secularization of Law
• Demystification of Law
Divinization of Law
Secularization of Law
Demystification of Law
Natural Law Thinking in Ancient
China
• Lao Zi
• Confucius
Lao Zi – Non-interference
• Man has been granted a simple nature, and all
social activities follow their own natural law. NonInterference (or less interference, when absolute
non-interference is unavoidable), would lead
things in their original direction. In this way,
society and nature would be in good order, and no
conflict would take place. So Laozi said: If I do
things by Non-Interference, people will follow me
naturally; If I incline to Tranquility, people will be
led in the proper direction; If I interfere with
nothing, people will become rich; If I have no
sensual desire, people will become simple and
sincere.
Confucius
• "Sir, what need is there of the death
penalty in your system of government? If
you showed a sincere desire to be good,
your people would likewise be good. The
virtue of the prince is Like unto wind; that
of the people, like unto grass. For it is the
nature of grass to bend, when the wind
blows upon it."
Critics of Natural Law
• Fuller has been criticized for overlooking
that even laws which adhere to the inner
morality, may be unjust.
• Natural law can’t guide judicial decision in
specific cases.
• It is wrong for natural law theorists to argue
that there is a strong connection between
law and morality.
• Morality is subjective and varies with
different people and therefore cannot be
eternal.
Fin
Merci