Natural Law Theories and

Constitutionalism
Fernando Simón Yarza

Content type: Encyclopedia entries

Product: Max Planck Encyclopedia of Comparative
Constitutional Law [MPECCoL]
Article last updated: September 2018

Subject(s):
Common law — Comparative constitutional law — Constitutions and amendments — Natural law
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

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 A.  Definition
1.  The theory of natural law defends that the ethical foundations of law are prior to, and
independent of, the will of men, and that there are certain universal and rational principles
of justice which every law must respect and promote in order to be legitimate. This theory
denies neither the necessity of positive law nor the duty to obey it. On the contrary, it
justifies both, since it is a foundational and a critical theory. As a foundational theory, it sets
the grounds for the need for positive law and the duty to obey it on principles of practical
reason. As a critical theory, it justifies civil disobedience when positive law radically
contradicts the ends that it is supposed to serve.

B.  Overview
2.  The main endeavour of the following pages is to offer the reader an insight into the
essential features of natural law theory, and into the influence of this theory on
constitutionalism. First, the outlines of classical natural law theory will be succinctly
sketched. A second section will be dedicated to the departure from classical natural law
theory in the work of Thomas Hobbes. Third, an exploration of modern natural law theory
will be made. The historical-theoretical section will conclude with the rise and fall of → legal
positivism in the nineteenth and the twentieth century.

3.  Finally, a section will be dedicated to a comparative description regarding the influence
of natural law thinking in contemporary constitutions and constitutional cases. The
explanation will draw on examples taken not only from the most famous Western
constitutional texts and jurisdictions (United States (‘US’) Declaration of Independence, US
Bill of Rights, French Declaration of the Rights of Man and of the Citizen, German Basic
Law) but also from other relevant examples around the world (Brazil, Argentina, and Chile
in South America; the Philippines, Japan, and India in Asia; and Egypt, Kenya, and
Cameroon in Africa).

C.  The Development of the Classical Theory of Natural Law

4.  The crucial moment for the emergence of the classical philosophical tradition of natural
law may be found in the writings of Plato. The Sophists had postulated a clear antithesis
between man’s nature (physis) and political conventions (nomos). Against this conception,
Plato connects human laws and human justice (nomos) to a nature (physis) which precedes
all conventions (see The Laws X, 889e–890a). This challenge to positivistic conventionalism,
as well as the assertion of what is ‘naturally just’, was the basis upon which the classical
philosophers founded what Isaiah Berlin called ‘the central tradition of Western political
thought’ (Berlin 25). Its most elaborate and accomplished expression may be probably
found in Thomas Aquinas’s theory of natural law, which will be closely followed in the next
paragraphs.

1.  The End of Government and of Positive Law

5.  The law is an ‘extrinsic principle’ (Summa Theologiae I–II, q. 90) of human acts. As a
‘principle’ of practical affairs, it displays a powerful influence, for good or for bad, on the
education and customs of a country (Summa Theologiae I–II, q. 92, a. 1; and Nicomachean
Ethics 1179b). The end of the political community—and therefore of the law—is always the
common good, which is made up by the set of conditions favourable to full human
development. According to classical natural law, the legislator should legislate taking into
account the integral good of the citizens, of the present and future generations. The
subordination of the law to the common good is not a mere option available to the legislator,

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 but it relates to the essence of law as its final cause. Thus, all the laws of the political
community derive in a certain sense—says Aquinas—from natural law.

6.  The idea that positive law has its source in natural law does not mean that every human
law can be deduced from an abstract world of Platonic ideas and forms. On the contrary,
most norms stem from natural law ‘as implementations (determinationes) of general
directives’ (Summa Theologiae q. 95, a. 2), and their validity depends upon their
authoritative positivation. As John Finnis has explained, the Thomistic concept of
determinatio should be translated as ‘concretization’, ‘implementation’ or
‘realization’ (Finnis, Natural Law and Natural Rights 281–90). In the same way as the
architect who constructs a building is simultaneously oriented and restrained by his
purpose, while at the same time enjoying a great amount of freedom to execute its task, so
the legislator has to promote the common good, which is simultaneously an end open to
creative freedom and a constraint (Summa Theologiae I–II, q. 95, a. 2; cf also Comment.
Nicomachean Ethics, V, 12, para. 1023). This, mainly, is the sense in which the classical
tradition states that positive laws stem from natural law.

2.  The Limit of Government and of Positive Law

7.  Both the government that exceeds its attributions or usurps the attributions of others
and the government that exercises them against their justificatory ends are considered by
the classical natural law tradition as illegitimate. The latter has been labelled as tyrannical,
since it behaves against the good that the ruler is bound to promote and preserve. With his
behaviour, the tyrant justifies disobedience (Summa Theologiae I–II, q. 96, a. 4, ad 3), since
‘justice being taken away, then, what are kingdoms but great robberies?’ (Augustine, De
civitate Dei IV, 4). In extreme cases, even tyrannicide could be justified (Super Sententiis II,
44, Dist. 2, q. 2).

8.  What has been generically said regarding illegitimate government is valid for the law.
The aphorism lex iniusta non est lex (‘unjust law is not law’) assumes that the end or final
cause of the law (the common good) is an integral part of its definition. This expression,
which Aquinas borrows from Augustine (Summa Theologiae q. 92, a. 1, ad 3; and De libero
arbitrio I, 5), dates back at least to Plato (Hippias Major, 284d). As occurs with so many
practical aphorisms, in order not to misunderstand it further interpretation is required.

9.  This aphorism does not attempt to deny the ‘corruptions of law’ their legal nature in a
purely positive sense, but to define law by invoking its ‘focal meaning’, the ‘central case’ by
reference to which all other uses of the term find their meaning. As occurs with other
concepts (eg friendship, virtue, being, etc), the equivocity in the uses of the term ‘law’ is
due to their proximity to a central meaning of the concept, because of whose likeness the
other uses are justified. Aristotle called this phenomenon homonymy or equivocity pros hen
or ‘for reference to something’ (cf Aristotle, Metaphysics IV, 2, 1003a–b and 1159a;
Eudemian Ethics 1236a; and Politics 1275a–b; Owen 180–199; Finnis, Natural Law and
Natural Rights 9–18). Natural law tradition maintains that the concept of law should not be
defined through a ‘factual’ or ‘positive’ common denominator which every possible use of
the concept could meet, but through its focal meaning. And in this focal sense, the concept
of law must include a reference to its purpose. According to the classical natural law
tradition, the law is, in its focal meaning, an ordinance of reason for the common good.

10.  In any case, the classical natural law tradition does not suggest that every just
proposition is law: it must be valid in a legal, positive sense. Following HLA Hart’s
categories, every positive law must be backed by a valid ‘rule of recognition’ and, in the
case of the ultimate rule of recognition, it must be ‘socially accepted’ (cf Hart (1961) 109).
Still, this is not an obstacle to say that the law is, in its central case, just. Rejecting the idea
of justice as an essential part of the concept of law, legal positivism tends to characterize

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 law by its efficient cause: auctoritas, non veritas, facit legem (Hobbes (1670) II, Chapter
XXVI, 202). By contrast, from a teleological conception of law, natural law thinking affirms
that law emanates ‘from the reason and will’ (a ratione et voluntate) of the legislator
(Summa Theologiae I–II, q. 97, a. 3). As long as it ignores the common good it departs from
reason, ceases to be a ‘central case’ of the law and it becomes a ‘peripheral case’,
weakened or debilitated due to its disconformity with the central meaning of law.

D.  The Reappearance of the Antithesis physis/nomos: Thomas

Hobbes
11.  In contrast with the classical, teleological view of human nature—which affirms a
natural, rational foundation behind human laws—some versions of modern political
contractualism imply a return to the antithesis physis/nomos posed by the Sophists.

12.  The political contract as such has precedents that date back at least to Plato. The
implicit contract assumed by the citizen is an image deployed by Socrates to justify his duty
to die for the sake of the laws (Crito 51e–53a). Also among the Roman and Medieval jurists
we can find evidence of the idea of a political compact grounded on popular consent (in this
vein, cf Tierney (1982) 39–42; Tierney (1997) 249; and Siedentop 249). In all these cases,
contractualism does not presuppose a non-social or a non-teleological state of nature. It is
just an image that explains the due reciprocity between rulers and subjects in their
respective duties of protection and obedience, but it does not turn human society into an
artefact, into a superadditum alien to a prior, non-political nature.

13.  In contrast with the classical compact-based explanations, some modern versions of
contractualism conceive of natural man as a being oriented towards the mere satisfaction of
his desires. At the beginning of Modernity, we find a paradigmatic example of this
understanding in Thomas Hobbes (1588–1679). Human nature has for Hobbes a non-
teleological character, in the sense that ‘a common rule of good and evil’ does not exist.
Conversely, ‘whatsoever is the object of any man’s appetite or desire; that is it, which he for
his part calleth good; and the object of his hate and aversion, evil’ (Hobbes (1651) I,
Chapter VI, para. 7, 35).

14.  Man is determined, according to Hobbes, by the object of his desire, and happiness is
just the ‘continual success in obtaining those things which a man from time to time
desireth’ (Hobbes (1651) I, Chapter VI, para. 58, 41). The potentially infinite character of
desire is linked to the will for power, which leads man to assure the means for satisfying any
desire that could eventually appear in the future (Hobbes (1651) I, Chapter XI, 66). The
emergence of a sovereign power is just the consequence of the selfish interest for self-
preservation, given that the unlimited expansion of desires in the state of nature leads into
the ‘war of every man against every man’ (Hobbes (1651) I, Chapter XIII, para. 13, 85). As
there is no common authority or natural law that goes beyond the passions of men, the state
of nature is a state of ‘the right of all men to all things’ (Hobbes (1651) I, Chapter XV, para.
2, 95). Under these circumstances, the transference of power to an absolute sovereign
capable of imposing peace takes place. The ‘law of nature’ is the law of passions, among
which fear and the instinct for self-preservation play a leading role (Hobbes (1651) I,
Chapter XIII, para. 14, 86). Fear of self-destruction leads to a repression of one’s own
desires and to the submission of the will to an absolute authority (Hobbes (1651) II, Chapter
XVII, para. 1, 111).

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 15.  This grounding of political order by Hobbes has had a great influence on modern
positivism, and it implies a rejection of classical natural law theory and a return to the
antithesis physis/nomos of the Sophists. In fact, the basis of political obligation according to
Hobbes coincides entirely with that expressed by Glaucon in his discussion with Socrates in
The Republic. According to Glaucon, the good lies in the satisfaction of one’s desires. Thus,
committing injustice constitutes the highest good when the unjust man is able to avoid the
punishment. Nevertheless, ‘the excess of evil in being wronged is greater than the excess of
good in doing wrong’, and this is the reason why individuals ‘take the other determine that
it is for their profit to make a compact with one another neither to commit nor to suffer
injustice’. This is, according to Glaucon, ‘the beginning of legislation and covenants
between men’; and ‘the genesis and essential nature of justice’ (Republic II, 358e–59a). We
can see in Glaucon the Hobbesian positivist avant la lettre, or in Hobbes the modern
Glauconian.

E.  Modern Natural Law and Constitutionalism

16.  From his radically individualistic and antiteleological premises, Hobbes creates an
unlimited state—the Leviathan—in which citizens lack any rights. In clear contrast we find,
for example, the work of John Locke (1632–1704), whose contractualist model presupposes
a natural law theory which shares some similarities to the classical one.

17.  Nevertheless, the seeds of Locke’s modern natural law theory were not originally
postulated by Locke himself but by two great continental legal theorists: Hugo Grotius
(1583–1645) and Samuel von Pufendorf (1632–1694). The relevance of these two authors in
modern natural law thinking is difficult to exaggerate, and it is not circumscribed to
continental Europe. John Locke was well acquainted with Grotius’s De iure belli ac pacis
(1625), and he regarded Pufendorf’s De iure naturae ac gentium (1672) as ‘the best book of
the kind’. This work constituted one of the main sources of inspiration for his Two Treatises
on Government (see Laslett 75).

1.  Modern Natural Law: Origins

(a)  Hugo Grotius
18.  Hugo Grotius is widely considered as the true founder of modern natural right theory.
From a substantive point of view, his idea of natural right approaches the classical one,
since it also refers to principles of justice whose deontic validity is prior to any positivation.
The distinctly modern elements introduced by Grotius’s natural right lie in the following
points.

19.  First, Grotius’s work entails a secularization of the doctrine of natural law, to a great
extent due to the end of the religious unity in Europe (see Sabine 420 ff). In line with the
previous tradition, Grotius defines natural law as ‘the rule and dictate of right reason,
shewing the moral deformity or moral necessity there is in any act, according to its
suitableness or unsuitableness to a reasonable nature’ (Grotius Book I, Chapter 1, X.1, 150–
151). Nevertheless, Grotius makes explicit that natural law would be valid etiamsi daremus
non esse Deus: ‘all we have now said would take place, though we should even grant, what
without the greatest wickedness cannot be granted, that there is no God, or that he takes
no care of human affairs’ (Grotius Prolegomena XI).

20.  The most relevant innovation introduced by Grotius, the point in which he clearly
departs from the Aristotelian tradition, is the rational-scientific method that he deploys to
deduce natural law, that is, the assertion of a rational evidence of natural law which would
be analogous to the evidence offered by empirical knowledge: ‘for the principles of that law,
if you rightly consider, are manifest and self-evident, almost after the same manner as those
things are that we perceive with our outward senses, which do not deceive us, if the organs

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 are rightly disposed, and if other things necessary are not wanting’ (Grotius Prolegomena
XL, 110–11). This assimilation of natural law thinking with scientific knowledge signals a
true shift with regards to the classical tradition.

(b)  Samuel von Pufendorf

21.  Together with Grotius, Samuel von Pufendorf is the most important early exponent of
modern, rational natural law theory. The scientific approach to moral issues started by
Grotius was followed by him even more radically, up to the point of attributing the same
level of scientific certainty to moral and mathematical statements (Pufendorf I, Chapter II,
Section 9, 22).

22.  One of the most influential aspects of the thought of this German jurist has been his
contractualist explanation of political obligation. Though it has previous roots in the work of
Althusius, modern contractualism finds a fundamental development in Pufendorf’s De iure
naturae ac gentium. According to Pufendorf,

on the whole, to join a multitude, or many men, into one compound person, to which
one general act may be ascribed, and to which certain rights belong ... it is
necessary that they shall have first united their wills and powers by the intervention
of covenants; without which, how a number of men who are all naturally equal,
should be linked together, is impossible to be understood (Pufendorf 1717, VII,
Chapter II, Section 6, 469).

23.  It is also important to note that, in spite of having been influenced by Hobbes,
Pufendorf’s contractualism does not assume a natural state of absolute license. Pufendorf’s
‘state of nature’ and ‘natural rights’ seem to be closer, in this sense, to the ideas we find in
the work of John Locke, whose importance for modern constitutionalism demands a more
detailed comment in the following paragraph.

2.  Modern Natural Law and Constitutionalism: John Locke

24.  Deeply influenced by modern natural law as exposed by Grotius and Pufendorf, the
most important natural law thinker of early constitutionalism is perhaps John Locke. As will
be seen, he had the ability to expose many commonsensical ideas in the new contractualist
style previously used by Hobbes and Pufendorf, and to write them in a clear and easily
readable style.

25.  The first thing we should note about Lockean contractualism is that, unlike what
happens in Hobbes’s Leviathan, men in the state of nature do not lack constrictions nor
have a right to everything. It is ‘a state of liberty, yet it is not a state of licence’ (Locke
2013, II, para. 6, 270) nor is it a ‘state of war’ (Locke para. 19, 280 ss). It is a state of self-
jurisdiction similar to the one proposed by Pufendorf, not a lawless state (Locke II, paras 7
ss, 271 ss). What characterizes men in the state of nature is that they are born free and
equal with respect to their right to rule, so that nobody can claim an initial or native right to
command the rest. They are all, however, under ‘the law of nature, which is the law of
reason’ (Locke I, para. 101, 215). This means that their own right of self-jurisdiction is
limited by natural reason, with the consequence that it only justifies legitimate retribution
(Locke II, para. 8, 272), namely, the punishment of breaches of natural law.

26.  Besides, the Lockean state of nature is not an asocial or pre-social state, as occurs, for
example, in Rousseau. Locke quotes Hooker to support his assertion of the individual
insufficiency to bear a worthy life and of the natural inclination ‘to seek communion and
fellowship with others’ (Locke 2013, para. 15, 278). In this vein, together with ‘the chief
end’ (Locke para. 123, 350) of preserving the three natural rights—life, estate, and liberty—

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 and threatened by ‘the inconveniences’ of human condition in the state of nature, he also
grounds the civil union in ‘the love, and want of society’ (Locke II, para. 101; 334; see also,
eg, para. 93, 328).

27.  Notwithstanding what has been said, we always find in Locke an individualistic
element which is characteristic of the modern contractualism and natural law thinking
inaugurated by Grotius and Pufendorf, and which has also had a deep influence in modern
constitutionalism. This individualistic element—absent in the classical tradition—may be
summarized in the following two important principles for modern constitutional thought.

a) On the one hand, Locke defends a strong equality among men in the state of
nature, before their entrance into a political community through individual consent.
The subjection to the authority by consent appears as a simple corollary of the non-
existence of a natural right to rule over other men, that is, as a corollary of the
natural equality of all men regarding their political status. Through the social
‘compact’ or ‘agreement’, the individual gives up his self-jurisdiction in favour of the
political body. Thus, a disperse multitude is reduced to a social unit, capable of
conferring legislative power on whoever it considers appropriate for the advancement
of the public good (Locke II, para. 96, 331; and para. 136, 359).

b) On the other hand, natural law appears in Locke as a doctrine of the ‘natural
rights’ of man, which every political power should respect and promote. The end of
public authority is, according to Locke, the protection of the natural rights of man:
life, estate, and liberty (Locke II, para. 137). Widely spread by Locke, this doctrine
has, nonetheless, disputed origins (see Strauss 181–182; Villey; Tierney (1997); Siedentop
208 ss). For the purposes of this article, it suffices to remark that, among the great
philosophers who have emphasized the centrality of natural rights, the most
influential in the history of constitutionalism has been John Locke (in the same line,
see Strauss 165).

F.  Crisis and Recovery of Natural Law Theory in the Nineteenth

and Twentieth Century
1.  Rise and Fall of Legal Positivism
28.  The theory of natural law is intimately connected with the origins of constitutionalism
(cf the important essay written by Corwin 149–185). Nevertheless, it suffered a deep crisis
in the second half of the nineteenth century and in the first half of the twentieth century,
both in Europe and in the US. Deeply influenced by Hobbes, legal positivism reintroduced
the old opposition between ‘nature’ (physis) and ‘law’ (nomos). Yet, the idea of natural law
would be recovered by European and American jurisprudence after the Second World War.
As the prominent Spanish political theorist Manuel García-Pelayo explained, the rise of legal
positivism at the end of the nineteenth century was connected, at least in part, with the will
of the jurists to preserve the established social order. It is understandable, then, that its
crisis would conversely be linked to the repudiation of the legitimacy of the totalitarian
regimes of the 1930s. In this sense it might not be surprising that, in the English translation
of his Allgemeine Staatslehre, Hans Kelsen did not include the passage in which he had
disdained as a ‘natural law naïveté’ (‘naturrechtliche Naivität’) the denial of full juridical
validity to despotic governments (the change is noticed with astonishment by Strauss 4; see
further Kelsen (1925) 335–36; and Kelsen (1949) 300).

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 29.  The loss of meaning in legal theory and the unawareness among scholars of the
legitimizing force of the very concept of law was forcefully criticized in Germany by Gustav
Radbruch. A ‘convert’ from legal positivism to natural law theory, Radbruch censured the
prevailing German legal philosophy throughout the late nineteenth and early twentieth
century (cf Radbruch (1946); and Radbruch (1947)). Such a reaction against the
justificatory effects (not intentions) of positivism on any piece of legislation, disregarding its
content, took place not only in Europe, and led to a certain revival of natural law theory. In
1958, the Harvard Law Review published an important debate between HLA Hart and Lon
Fuller on the separation of law and morals, and the meaning of fidelity to the law (cf Hart
(1958); and Fuller (1958)). In a highly influential book following this discussion, The
Morality of Law (1965), Fuller extensively explained the concept of → rule of law and
identified it as an internal morality of law. The legal positivism of authors such as Kelsen or
even Hart became the object of successive criticisms, and it gradually lost its academic
hegemony.

2.  Natural Law and the Universal Declaration of Human Rights

30.  After the Second World War, the shared idea of a set of objective human values was the
origin of the contemporary doctrine of human rights embodied in the Universal Declaration
of Human Rights (‘Universal Declaration’). In fact, the Universal Declaration was the object
of an important philosophical discussion by the Committee on the Theoretical Bases of
Human Rights. Created in 1947 by the → United Nations Educational, Scientific and
Cultural Organization (UNESCO), the Committee included prominent philosophers and
political scientists such as Edward Hallet Carr, Richard McKeon, or Jacques Maritain. The
Committee sent a questionnaire to several thinkers belonging to different philosophical and
religious traditions of the world, so that they could give their point of view concerning a
universal declaration of rights.

31.  The questionnaire gave rise to an important brief showing the readiness of such
diverse group of intellectuals—many of whom were non-Westerners—to embrace human
rights discourse. Some of the persons consulted said that, though human rights discourse
had originated in the West, their own philosophical traditions recognized the ideas
underlying such discourse. From the Chinese tradition, for example, Chung-Shun Lo said
that the basic ethical concept is ‘the fulfilment of the duty to one’s neighbour, rather than
the claiming of rights’ (Lo 187). Yet, this would not mean that the concept of ‘right’ is
opposed to that tradition, since rights correspond to basic human needs which are common
to all men. In spite of its non-insistence on rights-claims, Confucianism commands ‘a
sympathetic attitude of regarding all of one’s fellow men as having ... the same rights’ (Lo
187; → Confucian constitutionalism). The same happens in the Hinduist and Buddhist
traditions. Though there is no natural rights theory comparable to the one developed by
Western liberalism, both Buddha and Manu spoke of the freedoms and virtues which are
necessary to lead a flourishing life, and they proposed—according to the political scientist
SV Puntambekar in his response to the questionnaire—a code of ten ‘essential human
freedoms and controls or virtues’ (Puntambekar 200). As Mary Ann Glendon has
emphasized, the results of the UNESCO survey indicated that the principles underlying the
Universal Declaration ‘were present in many cultural and religious traditions, though not
always expressed in terms of rights’.

32.  This universal concern towards the very concept of human rights has been more
recently revisited by Amartya Sen in a critique of what he labels as ‘the Westernizing
illusion’. Despite accepting that ‘the idea of human rights as an entitlement of every human
being, with an unqualified universal scope and highly articulated structure, is really a
recent development’, Sen emphasizes that ‘there are limited and qualified defences of
freedom and tolerance, and general arguments against censorship, that can be found both

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 in ancient traditions in the West and in cultures of non-Western societies’ (Sen 40–43; see
also Dionisio). The wide consensus about the Universal Declaration shows the basic nature
of the principles at stake. According to Thomas Aquinas, the first principles of moral natural
law are universal (communissima), evident in themselves (per se nota), and they correspond
to the basic needs of human beings (Summa Theologiae I, q. 79, a. 12; Summa Theologiae I–
II, Art. 94, a, 2 and a. 6; and Nic. Ethics, VI, 1141a). Inasmuch as human rights correspond
to such basic goods and inclinations, they can be fairly considered as basic, universal
principles of natural law.

3.  Natural Law Theory and Judicial Activism in Rights Jurisprudence

33.  In the last decades, the very success of human rights discourse has led to a progressive
abandonment of strict legal positivism. It has been claimed that, through the positivization
of rights, constitutionalism ‘not only does not do away with the need to search for non-
positive law but, on the contrary, makes that an even stronger need’ (Viola 88). Essentially,
the existence of abstract right-clauses inevitably produces a fusion between moral and legal
reasoning. This fusion of law and morality is also reflected in the use of formal dogmatic
categories in constitutional rights jurisprudence, eg the principle of → reasonableness, the
idea of balancing (Abwägung) among rights, or the threefold → proportionality test
(Verhältnismässigkeitsprinzip), with its subprinciples of ‘appropriateness’ (Geeignetheit),
‘necessity’ (Erforderlichkeit), and ‘proportionality’ in the strict sense (Angemessenheit) (see
further Alexy; Möller; for a more critical approach, see Urbina). The application of such
broad categories opens the rights discourse to moral arguments.

34.  However, the fusion between legal and moral discourses at the expense of → statutory
law should not be considered as a necessary feature of natural law theory. → Judicial review
of legislation based on abstract right-clauses does not introduce an otherwise non-existent
moral limit of the law, but it simply transfers the ultimate decision regarding such limit from
the parliament to the courts. This judicial role has been defended and criticized by both
legal positivists and natural law theorists. It was certainly criticized by Hans Kelsen (see
Kelsen (1929) 68–70), but also by prominent contemporary natural law theorists. According
to John Finnis, for example, natural law theory should not replace the ‘rule of law’ or
Rechtsstaat with a non-institutionalized ‘rule of justice’ or Gerechtigkeitsstaat, since natural
law does not specify the proper means for its promotion and implementation (see Finnis,
‘Human Rights and Their Enforcement’ 19 ff). There is no substantive demand of justice
that precludes conferring the primary determination of the meaning of human rights to the
parliament but, on the contrary, there are serious reasons to proceed thus in a complex,
pluralistic society (see Waldron 209 ff).

G.  Natural Law and Natural Rights in Comparative

Constitutional Law
35.  The conviction that ‘what is just’ is not completely determined by the legislator, but
that the ius naturale exists prior to any positive definition, is closely linked to the very idea
of constitutionalism. Notwithstanding this assertion, it is evident that there is an
individualistic touch in the mainstream constitutional law discourse that is absent in
classical natural law theory. Therefore, constitutions place a stronger emphasis on natural
rights than on natural law (though the idea of natural law has never disappeared).

36.  In the US, the Declaration of Independence clearly states: ‘[w]e hold these truths to be
self-evident, that all men are created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty and the pursuit of
Happiness’. Inalienable rights do not seem to be mere concessions of the legislator but
human goods with which mankind has been previously endowed and that make up a ‘higher
law’ that everybody should respect. Natural law lies also in the foundations of the American

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 Bill of Rights. As a matter of fact, one of the arguments initially deployed by the Federalists
to reject the enactment of a bill of rights was that defining the scope of rights in a single
text would have the effect of producing limitations of the natural, non-written rights of the
people (cf Hamilton, Madison, Jay para. 84, 455). In order to circumvent this risk, the Bill of
Rights would finally include the ‘non-enumerated rights clause’ in the IX Amendment: ‘[t]he
enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people’.

37.  Regarding the US Supreme Court jurisprudence, the early case Calder v Bull (1798)
(US) deserves a very special mention. In this decision, the Court defined the scope of the
prohibition of ex post facto laws and gave rise to an important debate regarding the power
of judges to directly enforce natural law principles. Speaking for the Court, Justice Samuel
Chase deployed natural law arguments such as an appeal to ‘reason and justice’ and to ‘the
general principles of law and reason’. Moreover, he emphasized that ‘an act of the
Legislature (for I cannot call it a law) contrary to the great first principles of the social
compact, cannot be considered a rightful exercise of legislative authority’ (Calder v Bull
(1798) 388 (US)). In a concurring opinion, Justice James Iredell censured such methodology.
Given that

the ideas of natural justice are regulated by no fixed standard—said Iredell—the ablest and the
purest men have differed upon the subject, and all that the court could properly say in such an
event would be that the legislature (possessed of an equal right of opinion) had passed an act
which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice
(Calder v Bull (1798) 399 (US)).

38.  The debate between Justices Chase and Iredell clearly shows the difference between
the philosophical question whether natural law exists and the constitutional question
regarding who has the legitimate power to authoritatively decide about its meaning.
Neither Chase nor Iredell denied the existence of natural justice as such, but the later
placed in the legislator the power to define its content. In line with this thesis, Robert P
George has criticized what US Supreme Court Justice Hugo Black labelled ‘natural law due
process philosophy’ (Griswold v Connecticut (1965) 381 US 524 (US)), that is, the departure
from the rule of law by twisting or manipulating the meaning of constitutional clauses, eg
the American → due process clause (George 2269–83) (as paradigms of obnoxious activism,
cf Dred Scott v Sandford (1857) 393 (US); Lochner v New York (1905) (US); by contrast, for
an example of beneficial activism, cf Brown v Board of Education for Topeka Case (US)
(1954)).

39.  Natural law ideas are also present in various precepts of the → French Declaration of
the Rights of Man and of the Citizen (1789) (‘French Declaration’). The French Declaration
begins by stating that ‘men are born and remain free and equal in rights’ (Art. 1), and that
‘the goal of any political association is the conservation of the natural and imprescriptible
rights of man’; ‘these rights are liberty, property, safety and resistance against
oppression’ (Art. 2). According to Article 4, ‘the exercise of the natural rights of each man
has only those borders which assure other members of the society the enjoyment of these
same rights’, and ‘these borders can be determined only by the law’. The legislator is
explicitly limited by this higher law, since ‘the law has the right to forbid only actions
harmful to society’ (Art. 5). Finally, the celebrated Article 16 of the French Declaration

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 solemnly states that ‘any society in which the guarantee of rights is not assured, nor the
separation of powers determined, has no Constitution’ (→ separation of powers).

40.  In addition to the natural rights explicitly recognized by the French Declaration, it is
worth noting that the French Constitutional Council has based the existence of non-
enumerated constitutional principles, such as the principle of ‘human dignity’, on natural
law clauses enshrined in the above-mentioned texts. According to the Council, for example,
the ‘sacred and inalienable rights’ of man proclaimed both by the French Declaration and
by the Preamble of the Constitution of France: 27 October 1946 (Fr) ‘show that the
preservation of the dignity of the human person against any form of slavery or degradation
is a principle entitled with constitutional value’ (Decision No. 2013–674 DC (2013) (Fr);
Decision No. 94–343/344 DC (1994) (Fr), etc). However, ‘as an extremely volatile principle’,
human dignity ‘is sometimes even invoked on opposite sides of the same debate’ (Fink 29).
For instance, while the French Constitutional Council based its → abortion decision of 27
June 2001 (Decision No. 2001–446 (2001) (Fr)) on the principle of human dignity, the appeal
to the ‘human person’s inviolability’ was employed to oppose an abortifacient pill by the
Argentinian Supreme Court in its seminal decision Portal de Belén - Asociación Civil sin
Fines de Lucro c/ Ministerio de Salud y Acción Social de la Nación s/ amparo (2002) No 12
(Arg). As we can see, an agreement on the existence of natural law principles does not
equate to an agreement on their true meaning, even when the decision is made by a high
court.

41.  In Germany, the debate regarding the opportunity of an explicit mention to natural law
took place during the elaboration of the Bonn Basic Law. On the one hand, there was a
widely shared belief on the existence of certain inalienable natural rights. On the other, it
was also widely known that even the Nazis had invoked ‘nature’ as a source for their
theories. There was a vivid awareness of the risk of perverting the very idea of ‘natural
law’, as Carlo Schmid pointed out in the Committee dealing with basic issues
(Grundsatzauschuss):

never has the belief in rights arising from nature been stronger than today … the
great enthusiasm nowadays generated by natural law is a countermovement against
the radical rejection of natural law by German positivism, which has been made
fully responsible for the law’s denial under the Nazi regime. I cannot fail to note,
however, that the Nazi legal theory also referred to ‘natural law’ (see Rensmann
28).

42.  Considering this remark, the explicit mention to ‘nature’ was taken away from the draft
of Article 1 of the Basic Law for the Federal Republic of Germany (Grundgesetz für die
Bundesrepublik Deutschland) of 23 May 1949 (Ger). Yet, the idea of a higher law remained
through the reference to the inviolability of human dignity (Art. 1 para. 1) and through the
acknowledgement by the German people of the ‘inviolable and inalienable rights as the
foundation of every community, of peace and justice in the world’ (Art. 1 para. 2).

43.  Perhaps the most important case regarding the constitution as a value-system that
must inform the whole legal order is the seminal → Lüth Case (Ger) (1958). In this case, the
German Federal Constitutional Court stressed that the Basic Law ‘is not a value-free
system’, and that its fundamental rights section ‘also establishes an objective system of
values, thus expressing and reinforcing the validity of the basic rights’. This system of
values has as its central points ‘human dignity’ and ‘the freedom of the human being to
develop his personality amid the social community’. As ‘constitutional fundamental
decisions’, the values introduced by the human rights catalogue must inform the whole

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 legal system: ‘legislation, administration, and judicial decisions must receive their
directives and impulse from them’ (Lüth (1958) (Ger) 205).

44.  The conviction that certain principles of justice precede any positive law has a
foundational role in the preambles of innumerable constitutions throughout the world. In
Latin America, for example, the Brazilian people purport to create, ‘under the protection of
God’, a state ‘destined to ensure the exercise of social and individual rights, liberty, security,
well-being, development, equality and justice as supreme values’. The Constitution of the
Argentine Nation: 23 August 1994 (Arg) invokes in its preamble ‘the protection of God,
source of all reason and justice’, an unequivocal natural-law formula. Finally, in a way also
consistent with the classical theory of natural law, Article 1 of the Chilean Constitution
declares that the end of the state is to contribute to the creation of the social conditions
which permit each and every one of the members of the national community to achieve the
greatest possible spiritual and material fulfilment (Political Constitution of the Republic of
Chile: August 8, 1980 (as Amended to August 18, 2005) (Chile)).

45.  One of the most important Latin American cases regarding the theoretical discussions
on natural law theory is the Argentinian decision Simón, Julio Héctor y otros s/ privación
ilegítima de la libertad, etc (2005) (Arg), issued by the Supreme Court of Justice on 14 June
2005. The Simón case may be considered as one of the great human rights cases of Latin
American jurisprudence of the last two decades, and it has given rise to an important
theoretical debate on natural law. The case concerned the legitimacy of the pardons
granted by the Argentinian government to military officers responsible for crimes against
humanity during the Argentinian dictatorship. Those pardons had been granted according
to positive norms enacted in the 1980s, before the constitutional reform of 1994. Though
the Court declared the illegitimacy of the pardons, a clear disagreement between the judges
with regards to the grounds of the decision took place. While some judges voted against the
legitimacy of the pardons invoking a supra-legal natural law, others strongly criticized such
supra-legal reference and appealed instead to the international → ius cogens and human
rights treaties ratified by Argentina. The Court attempted to avoid the theoretical
discussion and expressly rejected any identification with a particular ‘natural-law’ or
‘positivist’ theory. In the end, however, it recognized the ‘pre-existence’ of the right not to
suffer unjust persecution. According to the Court, ‘there are principles which determine the
justice of social institutions and establish valid parameters of personal virtue which are
universally valid regardless their effective recognition by certain state organs or
individuals’ (No. 33).

46.  In Asia, we can find natural law expressions, for example, in the Constitution of the
Republic of the Philippines: 2 February 1987 (Phil). This constitution begins by ‘imploring
the aid of Almighty God, in order to build a just and humane society, and establish a
Government that shall ... promote the common good’. With respect to the Constitution of
Japan: 3 November 1946 (Japan), it is based on the ‘universal principle of mankind’
according to which ‘[g]overnment is a sacred trust of the people’. Besides, the Japanese
people recognize ‘that all peoples of the world have the right to live in peace, free from fear
and want’, and emphatically declares ‘that laws of political morality are universal’. The
natural-law references of the Japanese Constitution are particularly significant, given the
fact that the → Supreme Court of Japan (Saikô saibansho) has shown extreme self-restraint
in the exercise of its power of judicial review (see further, Law 1425–66). This shows that
the recognition of natural law is by no means incompatible with legislative supremacy.

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 47.  A very important constitutional case was, for example, the decision of the → Supreme
Court of India in Maneka Gandhi v Union of India (1978) (India), of 24 January 1978. This
decision contains several opinions which refer to the extent to which natural law may be
applied in a legal procedure. According to Chief Justice Beg, for example, ‘the idea of a
natural law as a morally inescapable postulate of a just order’ is ‘embedded in our own
Constitution’, and it finds expression in the recognition of ‘the inalienable and inherent
rights of all men’. Nevertheless, Beg emphasized that natural law should only be invoked in
the terms recognized by the constitutional text, thus avoiding any conflict between the legal
and the supra-legal order: ‘natural law rights were meant to be converted into our
Constitutionally recognized fundamental rights’, and ‘to take a contrary view would involve
a conflict between natural law and our Constitutional law’. Such ‘a divorce between natural
law and our Constitutional law will be disastrous’, and ‘it will defeat one of the basic
purposes of our Constitution’. Once more, we find here an understanding of natural law as a
foundational theory that should not be invoked to undermine the rule of law.

48.  On the African continent, the constitutional appeal to natural law principles is also
frequent. In Egypt, for example, the preamble of the Constitution of the Arab Republic of
Egypt: 18 January 2014 (Egypt) declares that ‘truth is above power’. The Constitution of the
Republic of Kenya: 6 May 2010 (Kenya) affirms in its Supreme Norm that the Kenyan people
strive ‘for a government based on the essential values of human rights, equality, freedom,
democracy, social justice and the rule of law’. Finally, the Constitutional Preamble of the
Constitution of the Republic of Cameroon: 2 June 1972 (Cameroon) declares ‘that the
human person, without distinction as to race, religion, sex or belief, possesses inalienable
and sacred rights’. Article 1 adds that the authority ‘shall recognize and protect traditional
values that conform to ... the law’, a statement that entails an implicit recognition of the
existence of a higher law which precedes and legitimates positive law.

49.  An interesting African case with theoretical remarks on natural law is Constitutional
Petition 6 of 2010 Nazlin Umar Fazaldin Rajput v Attorney General and 3 Others (2010)
(Kenya), decided by the Interim Independent Constitutional Dispute Resolution Court of
Kenya on 24 August 2010. In this issue, the Court dealt with one of the most basic
requirements of the rule of law, namely, that statutes must be published in order to be valid.
The Court did not hesitate to quote Blackstone’s claim that ‘a bare resolution confined in
the breast of the legislator without manifesting itself by external signs cannot be properly
called a law’, for ‘it is requisite that this resolution shall be notified to the people who are
expected to obey it’ (Blackstone ‘Introduction’ Section 2, 44). It also quoted Thomas
Aquinas’s statement that, ‘in order that a law obtains the binding force which is proper to a
law, it needs to be applied to the men who have to be ruled by it’, and ‘such an application
is made by its being notified to them through promulgation. Wherefore, promulgation is
important for the law to obtain its force’ (Summa Theologiae I–II, q. 90, a. 4).

H.  Assessment
50.  To conclude this article, it may be useful to begin by insisting on the statement—
already anticipated in the Introduction—that natural law theory has a dual role: a) a
foundational role, since it attracts attention to the principles or pre-positive foundations of
law; b) and a critical role, since it points out the conditions that law should meet in order to
be a ‘central case’ of law and not a mere corruption.

51.  In the Western philosophical tradition, the theory of natural law dates back to
Socrates’ criticism of the antithesis physis/nomos defended by the Sophists. Invoking the

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 existence of a ‘natural good’ or a natural teleology, the classical philosophical tradition
declares that the law should pursue that good as its final cause.

52.  Throughout modernity, the discourse of natural law loses its centrality and is (at least
partially) replaced by the discourse of natural rights.

a) In some cases (Hobbes, Rousseau), the discourse of natural rights clearly responds
to a non-teleological conception of man. Here, ‘what is natural’ is conceived of as
‘what is primitive’, and ‘what is primitive’ is that which belongs to a state of nature in
which human freedom lacks any constraint. This discourse tends to see any restrictive
convention as artificial and unnatural, so it is radically incompatible with the classical
theory of natural law.

b) In other cases, the discourse of natural rights seems to be more ambiguous and
sympathetic to classical natural law ideas. This is paradigmatically the case of John
Locke, who was strongly influenced by early Modern natural law thinkers—Hugo
Grotius and, even more, Samuel von Pufendorf—and by classical authors. Though
having a much more individualistic discourse than other previous classical writers
(especially regarding the → right to property), he also affirms the natural sociability of
man and his natural subjection to a law of justice which is nothing but the law of
reason (and which is prior to the existence of public authority).

c) In certain interpretations, the modern natural rights discourse is far from being
alien to the classical natural law theory. Natural rights may be considered as an
expression of natural law, since they affirm human basic goods indispensable to
human flourishing. Positive law should protect those rights; otherwise it becomes
illegitimate.

d) Nevertheless, the reduction of natural law to natural rights seems to be

insufficient, since it would imply an excessively individualistic account of the social
duties derived from human reason. There are ethical and political obligations of
practical reason that do not (at least immediately) affect individual goods. Therefore,
the idea of natural law cannot be exhausted in the natural rights of the individual.

53.  Embracing the theory of natural law is not the same as embracing judicial activism; nor
does it require accepting judicial review of legislation. By itself, the theory of natural law
determines neither who (which organ) is in charge of enacting positive laws and
regulations, nor who is authorized to solve the legal conflicts among citizens. There is no
universal principle of justice which determines the scope of the competence of judges,
officials, legislators, or monarchs. Only the free decision of the political community
determines the way it should organize itself, as well as the powers conferred to the different
branches of government. In this vein, the abuse of the idea of natural justice with the
consequence of undermining the rule of law has been duly criticized not only by positivists,
but also by natural law theorists, for the ‘rule of law’ is also a requirement of justice.

54.  Contemporary constitutionalism is more prompt to the use of the language of rights
than the language of natural law. Nevertheless, an approach to comparative
constitutionalism gives evidence of several provisions regarding ‘higher law’ or ‘natural
law’ in diverse constitutions throughout the world, as well as in the case law of several
supreme and constitutional courts. As ‘foundational’ provisions, ‘natural law’ clauses are

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 usually included in the preambles or—less frequently—in the first articles of some
constitutional texts.

Select Bibliography
Alexy, R, Theorie der Grundrechte (Suhrkamp 1985).

Aquinas, T, Opera omnia (Alarcón, E, (ed.)), available at www.corpusthomisticum.org

(15 October 2018).

Aristotle, The Complete Works of Aristotle (Princeton University Press 1984).

Berlin, I, The Crooked Timber of Humanity: Chapters in the History of Ideas (2nd edn
Princeton University Press 2013).

Blackstone, W, Commentaries on the Laws of England in Four Books vol. 1 (1753; JP

Lippincot 1893).

Budziszewski, J, Commentary on Thomas Aquinas’s Treatise on Law (CUP 2014).

Coke, E, The First Part of the Institutes of the Law of England, or, A Commentary
upon Littleton (1628; Johnson and Warner, and Samuel L Fisher 1812).

Corwin, ES, ‘The ‘Higher Law’ Background of American Constitutional Law’ (1928) 72
HarvLRev 149.

Dionisio, G, ‘Natural Law Tradition and Confucian Culture: Beyond East–West

Divide’ (2014) 1.1 Filocracia 62.

Dworkin, R, ‘The Forum of Principle’ in Dworkin, R, A Matter of Principle (OUP 1985)

33.

Dworkin, R, Law’s Empire (Harvard University Press 1986).

Dworkin, R, Taking Rights Seriously (Harvard University Press 1977).

Fink, M, ‘The Role of Human Dignity in Gay Rights Adjudication and Legislation: A
Comparative Perspective’ (2016) 14.1 ICON 26.

Finnis, J, ‘Human Rights and Their Enforcement’ in Finnis, J, Collected Essays vol. III
Human Rights and Common Good (OUP 2011).

Finnis, J, Natural Law and Natural Rights (OUP 2011).

Fuller, L, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’ (1958) 71.4
HarvLRev 630.

Fuller, L, The Morality of Law (Yale University Press 1965).

García-Pelayo, M, ‘Derecho constitucional comparado’ in García-Pelayo, M, Obras

completas vol. I (2nd edn CEPC 2009).

George, RP, ‘Natural Law, the Constitution, and Judicial Review’ (2001) 69
FordhamLR 2269.

Grotius, H, The Rights of War and Peace vol. 1 (1625; Liberty Fund 2005).

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
Oxford University Press - Main Account; date: 08 May 2019
 Hamilton, A, Madison, J, and Jay, J, The Federalist Papers (1788; Hackett Publishing
2005).

Hart, HLA, ‘Separation of Law and Morals’ (1958) 71.4 HarvLRev 593.

Hart, HLA, The Concept of Law (1961; 2nd edn OUP 1994).

Hobbes, T, Leviathan or the Matter, Form, and Power of a Commonwealth,

Ecclesiastical and Civil (1651; OUP 1998).

Hobbes, T, Leviathan, sive De materia, forma et potestate civitatis ecclesiasticae et

civilis (1670) in Molesworth, W, (ed.), Thomae Hobbes Malmesburiensis opera
philosophica quae latine scripsit omnia vol. III (Bohn 1841).

Jellinek, G, Allgemeine Staatslehre (1900; 3rd edn Springer 1921).

Justinian, Digestum, seu Vetus Pandectarum Iuris Civilis (a Porta, H, (ed.), 1558–60).

Kelsen, H, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’ (1929) 5

Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 30.

Kelsen, H, Allgemeine Staatslehre (Springer 1925).

Kelsen, H, General Theory of Law and State (Harvard University Press 1949).

Laslett, P, ‘Introduction’ in Locke, J, Two Treatises of Government (1689; Laslett, P,

(ed.), CUP 2013).

Lewis, CS, The Abolition of Man (OUP 1943).

Locke, J, Two Treatises of Government (1689; Laslett, P, (ed.), CUP 2013).

McIlwain, CH, Constitutionalism: Ancient and Modern (Cornell University Press

1947).

Möller, K, The Global Model of Constitutional Rights (OUP 2012).

Moreno, P, The US Supreme Court and Natural Law (Witherspoon Institute 2011).

Owen, GLE, ‘Logic and Metaphysics in Some Earlier Works of Aristotle’ in Düring, I,
and Owen, GLE, (eds), Aristotle and Plato in the Mid-Fourth Century. Papers of the
Symposium Aristotelicum Held at Oxford in August 1957 (Elanders 1960).

Plato, Collected Dialogues (Princeton University book 2009).

von Pufendorf, S, Of the Law of Nature and of Nations (R Sare et al 1717).

Puntambekar, SV, ‘Human Freedoms and Hindu Thinking’ in Human Rights.

Comments and Interpretations. A Symposium Edited by Unesco (UNESCO 1949).

Radbruch, G, ‘Die Erneuerung des Rechts’ (1947) 2.1 Die Wandlung 8.

Radbruch, G, ‘Gesetzliches Unrecht und übergesetzliches Recht’ (1946) 1.5

Süddeutsche Juristen-Zeitung 105.

Rensmann, T, Wertordnung und Verfassung (Mohr Siebeck 2007).

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
Oxford University Press - Main Account; date: 08 May 2019
 Sabine, GH, A History of Political Theory (Henry Holt 1937).

Sen, A, ‘Universal Truths: Human Rights and the Westernizing Illusion’ (1998) 20.3
Harvard International Review 40.

Siedentop, L, Inventing the Individual. The Origins of Western Liberalism (Harvard

University Press 2014).

Spaemann, R, Rousseau—Bürger ohne Vaterland (Piper 1980).

St Augustine, De civitate Dei in Aurelii Augustini opera, Corpus Christianorum Series

Latina vol. XLVII (Brepols 1955).

St Augustine, De libero arbitrio in Aurelii Augustini opera, Corpus Christianorum

Series Latina vol. XXIX (Brepols 1970).

Strauss, L, Natural Right and History (University of Chicago Press 1953).

Tierney, B, Religion, Law and the Growth of Constitutional Thought 1150–1650 (CUP
1982).

Tierney, B, The Idea of Natural Rights. Studies on Natural Rights, Natural Law, and
Church Law 1150–1625 (Eerdmans 1997).

Urbina, FJ, A Critique of Proportionality and Balancing (CUP 2017).

Villey, M, ‘La genèse du droit subjectif chez Guillaume d’Occam’ (1964) 9 Archives de
philosophie du droit 97.

Viola, F, ‘Introduction: Natural Law Theories in the 20th Century’ in Pattaro, E, and
Roversi, C, (eds), A Treatise of Legal Philosophy and General Jurisprudence vol. 12
Legal Philosophy in the Twentieth Century: The Civil Law World Tome 2 Main
Orientations and Topics (Springer 2016) 1065.

Waldron, J, Law and Disagreement (OUP 1999).

Select Cases
1 BvR 400/51 Lüth (15 January 1958) BVerfGE 7, 198 (Ger).

Brown v Board of Education (1954) 347 US 483 (US).

Calder v Bull (1798) 3 US 386 (US).

Decision No. 2001–446 DC Loi relative à l’interruption volontaire de grossesse et à la

contraception (27 June 2001) ECLI:FR:CC:2001:2001.446.DC (Fr).

Decision No. 2013–674 DC Bioétique (1 August 2013) ECLI:FR:CC:2013:2013.674.DC

(Fr).

Decision No. 94–343/344 DC Bioétique (27 July 1994) ECLI:FR:CC:1994:94.343.DC

(Fr).

Dred Scott v Stanford (1857) 60 US 393 (US).

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 Lochner v New York (1905) 198 US 45 (US).

Maneka Gandhi v Union of India (1978) AIR 1978 SC 597 (India).

Nazlin Umar Fazaldin Rajput v Attorney General and Others, Constitutional Petition 6
of 2010 (24 August 2010) High Court at Nairobi (Kenya).

Portal de Belén - Asociación Civil sin Fines de Lucro c/ Ministerio de Salud y Acción
Social de la Nación s/ Amparo (4 March 2002) 325 Fallos 292 (Arg).

Simón, Julio Héctor y otros s/ privación ilegítima de la libertad, etc (14 June 2005)
328 Fallos 2056 (Arg).

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