The Theory of Natural Law

Definition and Study of Universal Laws
Nov 5, 2009, By: Estela Kennen

Natural law is that law which is above all man-made law, a law that is universally applicable. Natural law has existed in some form or another since ancient times.


While people throughout history have understood and posited natural laws in different ways, all natural laws share three factors in common: these laws are

* eternal
* immutable
* discoverable by human reason.

Natural Law Versus Positive Law

Natural law is the opposite of positive law which is the name given to laws made by humans, dependant on historic factors, and subject to constant change. Natural law is further seen as superseding positive law, always morally, and sometimes legally. Thus, to be “valid” any positive law must either conform to the universal law, or to deal with matters which do not concern natural law, For instance, Geddicks explains that during late colonial time and early nationhood, belief in natural law placed limits on positive law: “American judges and attorneys did not consider legislative acts that violated natural or customary rights to be real ‘laws’.” Natural and International Law.

Julius Stone posited that natural law sprang partially from the need of the ruler to be seen as legitimate. The foundation of international law also rests on natural law or something like it (eg, “fundamental human rights”). A natural law convincingly put forth has a weight that transcends religiosity and geographic boundaries, trumps local customs and sovereignty. “This is Justice with a capital J,” says the universally applicable natural law, “This is Truth, this is Right” and as thus, it must be obeyed. Confronted with a heterogeneous empire, for instance, the Romans found it useful to fall back on the idea of a universally valid law, and one that was accessible to man’s reason.

Natural Law Today

Natural law’s impact decreased significantly in the 1800’s under the weight of theories like empiricism and positivism that were rooted more in the measurable world. Today, the only people in the US that invoke the term natural law with any regularity are Catholic theologians. Nonetheless, natural law has potential applicability to many of the more contentious political and policy issues we face today, such as abortion, gay rates, and even land use and water rights.

The persuasive quality of the collective applicability of natural law is still relied upon today. DeHaven-Smith writes "Modern nations unite peoples of different races and creeds by declaring certain norms of behavior and attitude to be universally valid, regardless of a particular person's, group's or nation's customs, religious beliefs, or history."

References

* deHaven-Smith, Lance. 2006. “What Jesus Says to Public Administration.” In: Handbook of Organization Theory and Management: The Philosophical Approach eds, Thomas Lynch & Peter Cruise. Boca Raton, Fl: Taylor & Francis.
* Geddicks, Frederick Mark. "An Originalist Defense of Substantive Due Process: Magna Carta, Higher Law Constitutioanlism, and the Fifth Amendment." Emory Law Journal 58(3).
* Stone, Julius. 1965. Human Law and Human Justice. Stanford: Stanford University Press.


The copyright of the article The Theory of Natural Law in Law, Crime & Justice is owned by Estela Kennen. Permission to republish The Theory of Natural Law in print or online must be granted by the author in writing.
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