Critical Analysis of the Concept of Natural Law Theory

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Introduction

The purpose of this essay is to discuss the extent to which aspects of human nature are reflected and out to be reflected in the concept of Natural Law theory. Natural Law is the name given to a set of theories in which there is a belief that there is a set of values, moral or otherwise, which must always be reflected in the law and to which law must conform.

This essay will briefly focus on the history of Natural Law, starting with Greek philosophers and ending with Hart and Fuller, two opposing theorists. Different theories and aspects of Natural Law will be discussed, with different philosophers' approaches being explained in order to demonstrate the different sides of the law, as well as discuss human nature and whether morality and the law should overlap.

Definition of Natural Law

Natural Law values are inherent in our human nature and therefore are universal and unalterable. A major function of law is to seek the common and individual good and to help society achieve goods, there are some basic goods and sociability is the most important.

Many philosophers have tried to explain Natural Law from their own perspective, but they all agree on the point that Natural Law is inherent in the nature of a man and is independent of any act of legislation or convention. This suggests there is something inbuilt into human nature that helps us differentiate good and bad. It is seen that most nations have a number of laws in common and it is wondered how this came to be. It`s suggested that this is due to a law of nature, or scientific laws that govern consistency in the natural world which extends into human behavior and society. The Justinian suggests that Natural Law orders characteristics that exist in humans and nature, and this is why most societies have a lot of laws in common.

Theories of Natural Law, History, and Philosophers

Initially, Natural Law was defined by Greek philosophers such as Plato and Aristotle; Plato did not have a theory on Natural Law, but his concepts involved it, whereas Aristotle developed it further. Aristotle was of the view that we as humans develop our virtue by living a good life and doing a good things in order to become better people. By doing so, we develop a good character and thus we live a happy life, however, if someone does actions that are regarded as bad, they will be unhappy and discontented with their life. By realizing all of this, humans learn to be virtuous beings by doing good acts for themselves and the society we live in. Following Aristotle, Cicero stated that natural law is universal, unchangeable, and everlasting. This means that the basic concept of good and bad will apply to everyone forever and cannot be changed as it is above human-made law.

Aquinas combined the classical Greek philosophy of Aristotle, with that of Western catholic thought. He felt that Aristotle`s take on Natural Law should be introduced into the Western world in order to advance the ways of thinking. Aquinas's view of Natural Law was religious he thought that God created Earth and the divine order and that he was the one who imposed laws of science and other structures which create Natural Law.

In the 17th century, Hobbes developed a new theory of social contract which was the first to challenge the idea of natural law. During the English civil war, many people were forced to take sides between the King and the Parliament, and in order to find a resolution to some problems, Hobbes developed the social contract. Originally, the aim of Natural Law was to encourage people to follow laws as they would bring about virtue, human perfectibility, and other positive traits of humans, but Hobbes did not see it this way he realized that humans were selfish and primeval beings. In order to impose the social contract, Hobbes compared a ruler or sovereign to Leviathan a sea monster that was the most powerful of all of God`s creatures. This was done as he believed that we must hand over all our powers to a sovereign, who would then create laws in order to rule.

Hobbes said that humans in our natural states are not good and moral, instead, we are motivated by animal desires which leave our lives to be violent, solitary, poor, nasty, brutish, and short. By saying this, Hobbes suggests that if we leave Natural Law and continue listening to our instincts, at some point people will get too selfish and violent and start breaking laws. I believe the social contract is a good alternative to Natural Law and that it could form a foundation for law today if it were to be developed further. The one person in charge should have advisors to make sure that the laws created and fair and just, but other than that, I think overall it would create a good foundation for law today as it would make everybody equal and make sure everyone follows the same laws. The law also must keep adapting to society as it grows, and I do not believe that natural law does that for example, even 30 years ago homosexuals were not accepted in everyday society as natural law does not show homosexuality in many other animals. Yet more people are coming out as homosexual, so I think that the theory which creates a foundation for law today must be able to adapt to such things.

Natural Law and Human Nature

I believe that Natural Law is not based on human nature, but that human nature is based on it, as the relationship that human nature has with Natural Law, is the same as any other being on Earth. Natural Law does state that there are laws that come from nature, and laws that are manmade which should be in line with Natural Law. Human beings are not able to produce natural laws such as the law of relativity, or the law of gestation as these inevitably apply to every creature on Earth. In nature, animals are born with the knowledge that they must mate in order to produce offspring and then they are to care for them. Similarly, Natural Law explains that when humans pair and create a child, they know that they must care for them. It is inherent within humans, and there is no need for a law to tell us that we must act as a caregiver for our children.

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Natural Law is something that is ingrained in us, because of it we automatically know what is good and bad. It is accepted in all modern societies that killing another human being is wrong and that if someone carries out this evil act, they should be punished. The idea of this shows that even without legislation and law, it is human nature that we understand that killing someone else is wrong. However, there is a problem with this law, even though everyone is raised to not kill others and steal, that is not the case. Certain people rebel and go against the law to commit crimes that are not supported by the Natural Law theory.

Law and Morality

Law can be defined in many different ways; Natural Law gives the view that laws are valid when they are in line with a higher authority, such as God according to Aquinas, or a shared morality amongst society according to Fuller. Under the natural law theory, Aquinas described the law as nothing else than an ordinance of reason for the common good made by him who has care of the community and promulgated. The legal positivism view is that a law is only valid if it is made by someone in power such as a king, it doesn`t matter if the laws are liked or not, they simply have to be made using the right process.

Firstly, the difference between law and morality must be understood. The law is a set of rules which has been established by someone in power, whereas morals are values that have been set by society and determine what is right and wrong. Whether law and morality overlap has been a historical debate, with legal positivism supporters such as Bentham and Austin arguing that there is no connection between the two, and others such as Kant and Fuller trying to show a link between them.

In the 19th century, Bentham and Austin further developed the idea of positivism, creating a separation between what law actually is, and what law ought to be. They also brought about the idea that law and morality could and should be kept separate. Legal positivists such as Hart decided that even if a law is immoral, it can be legally valid, they also believe that a statute or law does not need to have any implications about its morality. Even though Hart is a positivist, he acknowledges the fact that occasionally there is a close relationship between law and morality, but he does not believe they should be interdependent. Furthermore, he also believes that there needs to be a line drawn between what law should be, and what law ought to be.

Kant was influenced by Hume and developed his theories. Kant stated that people have to make their own decisions, and in order to do so, the brain has to work to decide what knowledge amounts to. He referred to these as categories of thought, and one of the categories involved decisions about morality, and the basis of morality was for any empirical thoughts. Kant called his system of morality ‘the categorical imperative’, it is categorical as we must form the kind of judgment which applies to us and is imperative as humans must follow the universal laws of morality. Kant believed that since humans are rational beings who all have desires and free will, each person will want as much freedom as possible. The theory believes that humans deserve to have freedom provided they do not harm other humans by following the basic laws and by being moral, which is why it is important for law and morality to overlap.

Fuller was a scholar who theorized modern-day Natural Law and supported the idea that law and morality must be linked together. People who are opposed to the positivist view tend to argue that sometimes moral acceptability is a necessary condition for making a statute law. Fuller came about with the Natural Law theory and was concerned with justice, he decided that there were two main forms of morality in law: external and internal. The first form, external, says that law supports certain values which we as a society encounter on a regular basis. This is an instance where law and morality do overlap, law regulates and conforms to external morality, as it supports the systems of value found in our society. The second form is internal, which is necessary and inherent in any idea where the law is a system. Laws must include certain features before they are allowed to operate and work as a system. Fuller decided to reject the positivist theory of law and said that the main goals of society can be achieved by other means, rather than relying on the law.

Conclusion

Looking at the aforementioned information, it can be concluded that the topic of Natural Law theory is a complex one. Many philosophers and theorists have tried to explain it and either apply it to law today or disregard it as a good theory. It can definitely be said that the theory has come a long way and been developed well, starting with the Greeks and Romans who first introduced it, Aquinas who brought it to Western society, and finishing with the philosophers of today such as Fuller and Finnis.

I believe that Natural Law should not be based on human nature alone all living beings have the same awareness of the law; they all have the instincts to mate and produce offspring in order for them to survive. Even though Natural Law theory has been explored and developed for centuries, it is still a theory that is a work in progress and needs even more development in order for it to fully provide a foundation for law today and so, the social contract would be a good alternative.

Overall, the Natural Law theory is one where law and morality are compatible and interdependent, they cannot be separated as one will not succeed without the other. Therefore, I think that law and morality must overlap in order for the law to succeed, morality has to be taken into consideration so that no bad laws are created, and if they are, then it would be immoral to follow them.

Bibliography

Books

  1. David Lyons, Ethics, and the Rule of Law, (Cambridge University Press, 1st ed) 1984
  2. Duncan Spiers, Jurisprudence Law Essentials, (Edinburgh University Press, 1st ed) 2011
  3. H.L.A. Hart, Positivism and the Separation of Law and Morals, Harvard Law Review 71(4) 1958: pp. 593-629
  4. Thomas Hobbes, Leviathan, 1651
  5. Stathis Psillos and Martin Curd, The Routledge Companion to Philosophy of Science (1st ed, 2010) The Institutes of Justinian, Corpus Juris Civils 533

Articles

  1. Aquinas, Summa Theologica, Treatise on Law (1947): Q90
  2. Fuller, Positivism, and Fidelity to a Law ‘A Reply to Professor Hart, 71 Harvard Review 630’ 32 (1958)
  3. J.G. Moore, ‘Hart, Radbruch and the necessary connection between law and morals’, Law and Philosophy 2020
  4. Martin Bertman, ‘Hobbes and Hume in relation to Kant’, History of European Ideas, 2004

Websites

  1. ‘A critique of natural law theory, (New Civilisation, 2012)
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