SEMINAR SEVEN, EIGHT AND NINE

NATURAL LAW THEORY

TRADITIONAL NATURAL LAW THEORY

The school of jurisprudence regarded as natural law is based, traditionally, „on arguments for the
existence of a “higher law”, elaborations of its content, and analyses of what should follow from
the existence of a “higher law”…‟1 Generally, natural law theorists argue that the law made by
man should be consistent with the higher law. The classical Greek writers are credited with
having originated natural law ideas.2 In addition, Cicero (106BC-43BC), a Roman orator, is
among those who provided one of the best formulations of natural law in those ancient days.3
How did this theory of law acquire the name „natural law?‟ The higher law „morality of reason
and [divine] revelation‟ advocated by theorists „was a morality which purported to take account
of man‟s nature, hence the title natural.‟4

Prevalent ideas of the higher law that validates the law of man in traditional and classical natural
law theories:
 The law of God (divine revelation);
 The law of reason;
 The law of nature

Among the outstanding proponents of traditional theories of natural law include Saint Thomas
Aquinas and John Locke. Explaining traditional natural law theory, including the origin of
natural law from moral philosophy, JE Penner observes that:
Of course, part of any concern with understanding morality, understanding what it
is to act morally or immorally, is a concern with the actions of rulers who lay
down laws for their subjects, and so the claims of natural law as a philosophy of
morality applied just as much to them as to individuals generally. So part of
natural law, obviously a very important part, explained what it was to rule and

1
Brian Bix, Jurisprudence: Theory and Context (5 edn Sweet and Maxwell 2009 London) 67.
2
Brian Bix, Jurisprudence: Theory and Context (5 edn Sweet and Maxwell 2009 London) 68.
3
Brian Bix, Jurisprudence: Theory and Context (5 edn Sweet and Maxwell 2009 London) 68.
4
JE Penner, McCoubrey and White’s Textbook on Jurisprudence (4th edn Oxford University Press, Oxford 2008) 11.

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 legislate and judge cases rightly; so part of natural law was the morality of „law‟,
narrowly construed as the laws passed by legislation and the legal system of
courts, judges, and so on.5

Thomas Aquinas (1225-1274)

Before Thomas Aquinas, Saint Augustine of Hippo had attempted to reconcile Christian and
Hellenistic (Greek) thoughts6 in his theory on the nature of law. Greek philosophers had laid the
foundation for the law of reason. Like St. Augustine, Aquinas mixed both the concept of the
higher law of God and the law of reason in his natural law views. Aquinas was of the view that
natural law is the validating factor for human (positive) law.7 He was also of the view that human
(positive) laws that are just have their binding force in conscience.8

According to Aquinas, there are truths about the nature of law which are accessible to natural
reason, that is, to ordinary experience (including the specialized observations of natural
scientists), insight, and reflection; and these include practical truths about good and evil, right
and wrong. In addition, Aquinas is of the view that many of those truths of the nature of law that
arise from natural reason are confirmed, and even clarified, by divine revelation, that is, the
propositions communicated directly or inferentially in the life and works of Christ, as transmitted
by his immediate followers and prepared for in the Jewish scriptures, which has been accepted
by those followers as revelatory. Further, Aquinas argues that some of the truths divinely
revealed could not have been discovered by natural, philosophical reason, even though, once
accepted, their content and significance can be illuminated by the philosophically ordered
reflection which he refers to as theology.

According to Aquinas, state governments and laws are subject to moral standards, including but
not limited to the principles and norms of justice. In addition, Aquinas postulated the idea that

5
JE Penner, McCoubrey and White’s Textbook on Jurisprudence (4th edn Oxford University Press, Oxford 2008) 11.
6
JE Penner, McCoubrey and White’s Textbook on Jurisprudence (4th edn Oxford University Press, Oxford 2008) 21.
7
Brian Bix, Jurisprudence: Theory and Context (5 edn Sweet and Maxwell 2009 London) 69.
8
Brian Bix, Jurisprudence: Theory and Context (5 edn Sweet and Maxwell 2009 London) 70.

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there was no moral obligation to obey a humanly bad law „unless greater „scandal‟ would result
from disobedience…‟9

John Locke (1632–1704)

Locke combines both the concept of law of God and law of reason, and further employs that
concept to introduce the idea of natural rights.

According to Locke, God created man and, therefore, human beings are in essence God's
property. The chief objective of man as determined by God is survival. Men have been put in
the world by God and made to share one common community of nature. There should, therefore,
be no subordination between men, or even destruction of each other. In addition, no man has the
liberty to destroy himself, or destroy any creature in his possession. Therefore, murder and
suicide, for instance, violate the divine purpose for humanity. According to Locke, since survival
is God‟s objective for humanity, then the necessary means to that end are life, liberty, health and
property. To Locke, these are natural rights, and are rights that humanity has even in a state of
nature before the introduction of civil government, and all people have these rights equally.

John Locke was one of the proponents of the concept of social contract from a natural law
perspective. The ideas of social contract were further refined by Jean-Jacques Rousseau
(1712 – 1778). Different versions of the social contract theory (Thomas Hobbes, John Locke and
Jean Rousseau) were essentially concerned with the legal and political legitimacy of
governments and rulers to govern society. Just as natural rights and natural law theory had a
florescence in the 17th and 18th century, so did the social contract theory. For Locke, a
legitimate government was instituted by the explicit consent of those governed. Those who make
such an agreement transfer to the government their right of executing the law of nature and
judging their own case. It is such powers which they give to the central government, and that was
what made the justice system of governments a legitimate function of such governments. In
summary, Locke was of the view that it was possible for the majority of the population to confer
the rule of the community on a king and his heirs, or a group of oligarchs or on a democratic
assembly. Thus, the social contract in Locke‟s view was, therefore, not inextricably linked to

9
JE Penner, McCoubrey and White’s Textbook on Jurisprudence (4th edn Oxford University Press, Oxford 2008) 25.

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democracy. However, Locke was still of the view that a government of any kind (democratic or
not) must perform the legitimate function of a civil government. The legitimate function of a
government is to provide protection and justice etc.

Conclusion on Traditional Natural Law Generally

The natural law tradition arose as the application of a theory of morality which emphasized
man‟s common moral nature to the legitimacy of states. The question of the legitimacy of states
and their laws became politically important when empires sought to rule over different peoples
with different customs, and so natural law seemed ideally placed to provide a universal standard
of justice. As ideas evolved, different natural law theories arose, however, which did not agree
on what the universal basis of morality was; some emphasized the revelation of God‟s will (the
law of God) and others stressed human beings‟ intellect or reason (law of reason). Modern
natural law is more of a response to and criticism of positivism, but it still maintains moral
concerns in examining the nature and validity of law.

MODERN NATURAL LAW THEORY

Defining modern natural law jurisprudence as postulated by the likes of Lon Fuller and John
Finnis, Brian Bix observes that „[m]ost law students come across natural law theory, not in its
usual form as a centuries-old way of [simply and just] thinking about morality, theology, and
politics, but rather in its more modest and modem guise as a theory competing with [and
criticizing or replying to] legal positivism for the proper description and analysis of law.‟10
However, the issue of morality is still central in modern natural law.

Lon Fuller’s Morality of Law

Although Lon Fuller (1902 – 1978) postulated the idea that law and morality should not be
separated, his views, while still part of natural law theory, were different from the traditional
natural law theories.11 In particular, Fuller differed with some of the traditional natural law views
such as Christian doctrines of natural law and some of the 17-18th century concepts of natural

10
Brian Bix, „On the Dividing Line between Natural Law Theory and Legal Positivism‟ (2000) 75 Notre Dame Law
Review 1613-1624, 1613.
11
Brian Bix, Jurisprudence: Theory and Context (5 edn Sweet and Maxwell 2009 London) 83.

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rights.12 Explaining the basis of the fundamental ideas postulated by modern natural law
theories, Brian Bix observes that:
In part because of responses to legal positivists like Hart, a category of “natural
law theories” has arisen which is best understood by its contrast to legal
positivism. While the traditional natural law theories generally took a particular
position on the status of morality (that true moral beliefs are based in or derived
from human nature or the natural world, that they are not relative, that they are
accessible to human reason, and so on), a position which then had some
implications for how legislators, judges, and citizens should act, as well as for all
other aspects of living a good life, this category of “natural law theories” includes
theories specifically about law, theories which hold that moral evaluation of some
sort is required in describing law in general or particular legal systems, or in
determining the legal validity of individual laws.13

JE Penner provides a historical analysis of the environment in which, and concerns under which
Lon Fuller developed his „procedural natural law theory.‟ Penner observes that:
Lon L. Fuller, professor of general jurisprudence at Harvard University from 1948
to 1972, was immediately concerned with the problems raised by the totalitarian
abuse of law in the 1930s and 1940s and advanced a theory of law which he
categorised as „procedural naturalism‟ in an effort to set out the minimal
requirements for a recognisable „legal system.‟ The basis for this analysis was the
perceived weakness of law in the Third Reich [Nazi Germany] and the extent to
which it could realistically have been considered to have been „law‟ in any
meaningful sense.14

Despite adopting a different approach from the ideas postulated in traditional natural law
theories, Lon Fuller was of the view that all schools of natural law have one common objective,
that of discerning „those principles of social order‟ that would enable all people achieve a

12
MDA Freeman, Lloyd’s Introduction to Jurisprudence (8th edn Sweet and Maxwell, London 2008) 118.
13
Brian Bix, Jurisprudence: Theory and Context (5 edn Sweet and Maxwell 2009 London) 84.
14
JE Penner, McCoubrey and White’s Textbook on Jurisprudence (4th edn Oxford University Press, Oxford 2008)
102.

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„satisfactory life.‟ Fuller sought to explain the moral content of the law from the idea of „the
rule of law‟, i.e. governance by sound rules and judicial institutions as opposed to other sorts of
political decision making or ordering, such as military command or bureaucratic administration.
It should be noted that rule of law is not merely rule by law. A state that has fundamentally
oppressive laws that do not promote justice and fairness cannot be said to operate under rule of
law. The morality that Fuller describes is morality as „legality‟, meaning morally sound aspects
of governing by rules. For this reason, Fuller is often credited with devising a „procedural‟
natural law theory, in that he does not focus on the substantive content of legal rules and assess
them as to whether they are moral or not, but rather concerns himself with the requirements of
just law-making and administration of the law.

For instance, citing King Rex‟s example in The Morality of Law, Lon Fuller discusses the
various ways in which a ruler or those in governance may fail to make an effective and
acceptable law for society.15 Although King Rex had attempted to achieve legal reforms for his
subjects (by developing a new legal code), he was grossly unsuccessful due to a number of
reasons. For instance:
Legal experts who studied …[the new legal code] declared that there was
not a single sentence in it that could be understood either by an ordinary
citizen or by a trained lawyer. Indignation became general and soon a
picket appeared before the royal palace carrying a sign that read, “How
can anybody follow a rule that nobody can understand?”16

Using King Rex example, Fuller enumerates the various ways legislators may fail in making of
morally sound law, that is, law that is capable of being obeyed. They include:
- Failure to achieve rules at all, so that every issue must be decided on an adhoc basis;
- A failure to publicize or at least to make available to the affected party, the rules he is expected
to observe;

15
LL Fuller, The Morality of Law (1969) Reprinted in MDA Freeman, Lloyd’s Introduction to Jurisprudence (8th
edn Sweet and Maxwell, London 2008) 154-167, 154.
16
LL Fuller, The Morality of Law (1969) Reprinted in MDA Freeman, Lloyd’s Introduction to Jurisprudence (8th
edn Sweet and Maxwell, London 2008) 154-167, 155.

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- the abuse of retroactive legislation, which not only cannot itself guide action, but undercuts the
integrity of rules prospective in effect, since it puts them under the threat of retrospective change;
- A failure to make rules understandable;
- The enactment of contradictory rules;
- Enactment of rules that require conduct beyond the powers of the affected party;
- Introducing such frequent changes in the rules that the subject cannot orient his action by them;
- A failure of congruence between the rules as announced and their actual administration.17

D‟Amato observes that Fuller‟s theory advocates the necessity of taking into account the
community‟s needs, aspirations, goals etc in the making of law. He states:
I find throughout Fuller's philosophy the recurrent notion that if we sufficiently
take into account a society's purposes, aspirations, common needs, and goals, we
can achieve a complete account, understanding, and specification of its laws. The
proper construction of any statute, according to Fuller, rests upon an appreciation
of these shared purposes.18

John Finnis’s Modern Natural Law Theory

According to Finnis natural law theory:
Law enters the picture as a way of effecting some goods – social goods which
require the co-ordination of many people that could not be effected, easily or at
all, without it, and as a way of making it easier to obtain other goods.(fn). Thus,
the suggestion Finnis makes about law and about legal theory are in a sense
derivative of his primary concern with ethics. As to questions regarding the
obligation to obey the law, Finnis follows Aquinas; one has an obligation to obey
just laws; laws which are unjust are not “law” in their fullest sense of the term,
and one has an obligation to comply with their requirements only to the extent
that this is necessary to uphold otherwise just institutions.(fn)19

17
Lon L Fuller, The Morality of Law (5th edn Universal Law Publishing, New Delhi 2009) 39.
18
Anthony D'Amato, „Lon Fuller and Substantive Natural Law‟ (1981) Northwestern University School of Law
Faculty Working Papers, Paper 131 <http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/131>
accessed 25 September 2012, 213.
19
Brian Bix, Jurisprudence: Theory and Context (5 edn Sweet and Maxwell 2009 London) 77.

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For Finnis, the basic question relating to the social process (of which law is part) is an ethical
one, „how should one live?‟, and a meta-ethical one, „how (by what procedure or analysis) can
we discover the answer to ethical questions?‟ These ethical and meta-ethical (philosophy that is
concerned with the foundations or basis of ethics) questions are primary in legal theory, which
for Finnis is best understood as a small, if integral part of the larger project. 20 The answer that
Finnis provides for the basic question is that there are some inherent valuable goods that should
govern a man‟s life.21 In Natural Law and Natural Rights, Finnis lists the basic forms of human
good as being: a practical reflection, life, knowledge, play, aesthetic experience, sociability
(friendship), practical reasonableness and religion.22

Since there are various basic goods, there is no hierarchy of choice between them provided by
Finnis.23 However, some principles, for instance, moral choices, may be a basis of choosing
between two basic goods, for instance, whether to play or study (a simple choice) or whether to
tell a lie due to the benefits that may accrue and the cost of telling the truth ( a more complex
choice).24

Summary of John Finnis modern theory of natural law

- Law is a social institution whose purpose is to regulate the affairs of people and thus
contribute to the creation of a community in which all people can flourish, i.e. a
community in which everyone can realize the seven different basic values. In this way,
the law is a moral project;
- Law needs to be coercive (primarily by way of punitive sanctions, secondarily by way of
preventive interventions and restraints). He also observes that not all lawful coercion is
by way of sanction or punishment;
- The authority of the law depends on its justice or at least its ability to secure justice. And
justice may need to be secured by force; failure to attempt to resist by force the
depredations of invaders and pirates will normally be a failure in justice;

20
Brian Bix, Jurisprudence: Theory and Context (5 edn Sweet and Maxwell 2009 London) 75.
21
Brian Bix, Jurisprudence: Theory and Context (5 edn Sweet and Maxwell 2009 London) 75.
22
John Finnis, Natural Law and Natural Rights (2nd edn Oxford University Press, Oxford 2011) 85-89.
23
Brian Bix, Jurisprudence: Theory and Context (5 edn Sweet and Maxwell 2009 London) 75.
24
Brian Bix, Jurisprudence: Theory and Context (5 edn Sweet and Maxwell 2009 London) 76.

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- Finnis argues that law brings definition, specificity, clarity, and thus predictability into
human interactions, by way of a system of rules and institutions so interrelated that rules
define, constitute, and regulate the institutions, while institutions create and administer
the rules, and settle questions about their existence, scope, applicability, and operation.
- Finnis denies that positivism provides a full or accurate picture of law. While Finnis
welcomes the insights into the nature of law that have originated with positivists, in
particular the positivism of HLA Hart, he denies that these insights provide a sufficient
theory of law. Unlike positivists in their analysis, Finnis examines the influence of ethical
issues which are basic values for good human life, in the making and implementation of
law. Law enters the picture as a way of effecting social goods which require the co-
ordination of many people that could not be effected, easily or at all, without it, and as a
way of making it easier to obtain other goods;
- As to questions regarding the obligation to obey the law, Finnis follows Aquinas‟s ideas
that one has an obligation to obey just laws. On the other hand, laws which are unjust are
not „law‟ in their fullest sense of the term, and one has an obligation to comply with their
requirements only to the extent that this is necessary to uphold otherwise just institutions
(if such laws are relevant to the survival of the just institutions).