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NATURAL LAW

What is Natural Law? (Its basic philosophy)

1. ‘May be said to lie in the constant assertion that there are objective principles which depend
upon the nature of the universe…which can be discovered by reason…’Lloyd’s Jurisprudence

2. Principles of NL remain true even if they are ignored, misunderstood, abused in practice, of
left undiscovered.

3. Characteristics of NL

a) It refers to law which governs man’s natural tendency which points him naturally towards a
certain(natural) end, i.e. to seek ends which are natural to him (e.g. procreate, protect family,
ensure survival) J.G. Riddal. It is the natural way which man acts.

b) It is an idealist concept.

Idealism - the physical world is a mere manifestation of an ideal world which should be studied
in order that we can gain a better understanding of the physical world (Plato’s theory of ideas
427-347)

NL is idealism. It is an appeal to a higher law.

c) It is discoverable by reason. NL is discovered by man through the exercise of reason, which he

is naturally endowed with.

- Is seemed to be what law is ought to be instead of what it is.

Why do people seek NL?

A yearning to seek something higher in a generation which is dissatisfied with the world, but is
conscious of the relativity of values.

Natural law is divided into two periods

a. Classical Theory

b. Modern Theory

CLASSICAL THEORIES
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Idea

1) Man must become conscious that he is part of nature and the universe.

2) Nature is govern only by one law which man comes under its dominion.

GREEK THEORIES

Notion- there is a law higher than men.

‘Were the gods not higher than men? What dire results will ensue if man pitted himself against
the will of the gods?’

a) Pre Socrates

Heraclitus of Ephesus

Bk- ‘Logos’

Theory - law is found in the rhythm of event i.e. the destiny; order and reason of the world.
There is a system for everything even if it’s not known

‘All things move and nothing remain still’

‘Everything changes and nothing remains still….you cannot step twice into the same stream.”

NL provides the order for the world.

NL was used to oppose oppressive and unjust law.

Can man’s law go against the NL:

- Sophocles Bk ‘Antigone’ – natural law is opposed to written law. The former is

wise whilst the latter is arbitrary. Natural law is superior due to it following the
rhythm of the world.

NL is used to demand for social justice, equality etc….

b) Socrates

Classical Greek philosopher (See printed notes)

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c) Plato

Student of Socrates

A philosopher and mathematician

Bk- ‘Republic’, ‘Statesman’ ‘Laws’

He is an idealist. Taught that there are two worlds – the ideal world and the real world. The real
world must try to conform to the ideal world. Believes that there are two worlds one being the
world we are in right now (ie corrupted) and a world which is perfect with natural law. He also
believes that there is a door and only one person who is the “Philosopher King”

How can this be achieve? Only through a person who understands the ‘art of kingship’ and has
wisdom. Then only can he rule ideally.

He also believed in the inequality of man and as such be believed that it is justified to create a
caste system. It is natural as that inequality is part of men.

Who is this ‘philosopher king?’- He must have a good memory, always ready to learn
(teachable), a visionary, lover of wisdom, passion for the truth, justice, strength and he has the
ability of self-control. He is also expected to have the key to the perfect law and follow it to be
applied in this (our) corrupted world.

Once the philosopher king is found, he will make laws which his people must follow. He gives
reasons/justification for authoritarian rule.

Criticism

- This is an ideal - it cannot be achieved and is impossible in reality (TJ Saunder’s Intro in
Plato’s law)

- Very conservative in its application.

- Plato’s greatest critic was his pupil Aristotle.

 Ideals of perfection do not necessarily need any kind of independent existence.

 What exactly is an ideal? It is too subjective and ideal is different to person– e.g. an ideal Cat.
What colour would an ideal Cat be?

- Its impossible to realize. It is an inquiry into the nature of justice and the organization of
a perfect society or utopia.

c) Aristotle
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Bk- ‘Logic’

Student of Plato.

He views the world as being part of nature.

Man is part of nature for 2 reasons.

a) Man is part of matter

b) Man is created by God; therefore, he takes part in nature and its experience. (he has the
ability to achieve such experience)

However, man is different from other parts of nature because he is capable of forming his will in
accordance with his reason.

Definition of law- ‘reason free from all passion’

Aristotle also advocated that there must be a set of laws even though it is govern by the
philosopher king “god like man.’ In the land of the blind, he who has one eye is king.

Reason- no human institutions and human beings are perfect and as such, a state based on law is
the only practical means of achieving a good life, which is the goal of a political organization (‘a
polis’ Gk city states)

The universe is dynamic always moving forward to achieve an end (teleogly) and culminating in
the Gk city state (polis) where man can achieve his fulfillment.

Natural law are divided two types of laws:

a) universal laws and

b) conventional laws

A rule is natural that is has the same validity everywhere and it does not depend on our
acceptance.

A rule is conventional (man made) and it is not the same everywhere because govts are different,
but there’s only one natural form of govt. The application of law is different. The law is different
everywhere but generally have the same essence. Eg. Measures use in corn trade is standard but
their application is different- wholesale (more) and retail (less)

STOIC PHILOSOPHY
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1. Rep by Zeno (350-260 BC)

2. Stoic doesn’t believes in gods but believes in universal force

3. Object of Stoic philosophy-

Reason is THE universal force that binds men everywhere. Man must reason correctly
and to understand the nature of the universe of which man is part of, i.e, pantheistic (does
not believe in gods but believes in the force) materialism.

There is no distinction between man and God, matter and force.All are at the same level

Every part of the world is ruled by the same unchanging laws and it was thus subjected to
strict necessity. There is not chance or contingency (back up plan); everything is ruled
and governed by unvarying laws.

Thus everyone must follow nature and lead a life according to nature.

A wise man never departs from the path of virtue which are ‘the strength of will’ and
‘resignation based on rational insight.’ It is part of the divine order of the universe.

Law and justice are results of ‘reason’ conceived as a universal force.

There is only one common law of nature and it binds everybody in the world, irrespective
of caste, creed or nationality.

There are two types of natural laws ie

Absolute ideals of NL- ie where there is only one law for the world. There was neither
family, slavery, property nor government.

However, since all these institutions are needed because of the moral deterioration of
mankind, thus ‘Relative’ NL is need; ie man made laws which are guided by reasons,
approximate as closely as possible to natural laws. This is because men don’t follow
natural law and some man made law are made to compliment the natural law

ROMAN CONCEPT

A) Cicero

‘De Re Publica’
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1. Law is the right reason in agreement with nature; it is of universal application,

unchanging and everlasting; it summons to duty by its commands and averts from
wrongdoing by its prohibitions.” De Re Publica Bk III

2. There would not be different laws at Rome and at Athens or different laws now and in the
future but an eternal and unchangeable law would be valid for all nations and at all times
and there would be one master and one ruler. That is God over us all, for his is the author
of the law, its promulgator and its enforcing judge.

3. Law and justice are inseparable. Justice to Cicero is equality before the law.

4. A dictator or ruler of a totalitarian state may frame laws to suit his own interest at the cost
of the well-being of the ppl. Ruler or authoritatarian is not valid c.f Greek viz Plato
/Aristotle.

5. Laws of the nations are not good laws unless it is for universal well beings. These laws
are ‘pestilential in nature [and they are] no more deserved to be called laws then the rules
a band of robbers might pass in their assembly.

B) Gaius

Bk- ‘Institutes’

1. Developed the concept of natural law ‘Jus naturale’ from the Greeks. Created an
embodiment of laws and usage which is observed among different peoples.

2. “All nations who are ruled by law and customs make use partly of their own law and
partly of the law which is common to all men…

“…whatever law any people has established for itself is peculiar to that state. But
whatever natural reason has established among all men is equally observed by all
mankind and is called gentium, because it is the law which all nations employ.” (Int’l
Law)

3. He distinguished between ‘Jus Civile’ and ‘Jus Gentium.’

4. Jus Civile are laws which are applied to Roman citizens whilst Jus Gentium was a body
of rules applied mostly to non-citizens.

5. Jus natural- see notes

6. More specific than Aristotle’s or Plato’s theory

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NL AND THE MIDDLE AGES (MEDIVAL CHRISTIANS)

They linked NL with original sin.

The fall of man makes human institutions necessary. Thus, the church is given absolute
supremacy over the State. Reason - it strives to fulfil the demands of the eternal law.

Christian thinkers: linked NL and original sins

A) St Augustine

De Libero Arbitrio (Upon Free Will)

De Civitate Dei (Of the City of God)

See printed notes

B) St Thomas Aquinas

Summa Theologica (PRIMA SECUNDÆ PARTIS.)

1. Natural Law is derived from the law of God.

2. Law- ‘an ordinance of reason for the common good made by him who has the care of the
community and promulgated.’ See printed notes for more.

3. He classified laws into 4 types. See printed notes

Eternal Law- Now God, by His wisdom, is the Creator of all things in relation to which He
stands as the artificer to the products of his art… Moreover He governs all the acts and
movements that are to be found in each single creature…. Wherefore as the type of the Divine
Wisdom, inasmuch as by It all things are created, has the character of art, exemplar or idea; so
the type of Divine Wisdom, as moving all things to their due end, bears the character of law.
Accordingly the eternal law is nothing else than the type of Divine Wisdom, as directing all
actions and movements. “ Augustine says (De Lib. Arb. i, 6) that "the eternal law is the
sovereign type, to which we must always conform."

So then no one can know the eternal law, as it is in itself, except the blessed who see God in His
Essence. But every rational creature knows it in its reflection, greater or less. For every
knowledge of truth is a kind of reflection and participation of the eternal law, which is the
unchangeable truth, as Augustine says (De Vera Relig. xxxi). Now all men know the truth to a
certain extent, at least as to the common principles of the natural law: and as to the others, they
partake of the knowledge of truth, some more, some less; and in this respect are more or less
cognizant of the eternal law.
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Whether the eternal law is known to all?

For what man knows the things of a man, but the spirit of a man that is in him? So the things also
that are of God, no man knows, but the Spirit of God.

Although each one knows the eternal law according to his own capacity, in the way explained
above, yet none can comprehend it: for it cannot be made perfectly known by its effects.
Therefore it does not follow that anyone who knows the eternal law in the way aforesaid, knows
also the whole order of things, whereby they are most orderly.

Natural Law

Wherefore, since all things subject to Divine providence are ruled and measured by the eternal
law, as was stated above (Article 1); it is evident that all things partake somewhat of the eternal
law, in so far as, namely, from its being imprinted on them, they derive their respective
inclinations to their proper acts and ends. Now among all others, the rational creature is subject
to Divine providence in the most excellent way, in so far as it partakes of a share of providence,
by being provident both for itself and for others. Wherefore it has a share of the Eternal Reason,
whereby it has a natural inclination to its proper act and end: and this participation of the eternal
law in the rational creature is called the natural law.

“…the light of natural reason, whereby we discern what is good and what is evil, which is the
function of the natural law, is nothing else than an imprint on us of the Divine light. It is
therefore evident that the natural law is nothing else than the rational creature's participation of
the eternal law.

There are 2 types of Natural Law

a) General precepts of NL which are known to all and they cannot be blotted out from the heart’s
of men. It remains immutable and universal. NL is imprinted in infants and the damned. Since all
humans, are naturally inclined to act according to reason it would seem that natural law would be
the same for all.

The three principles of natural law are these:

1. Good is to be done and pursued, and evil is to be avoided.

2. (Pertaining to the similarity we share with animals), we pursue procreation and the education
of offspring.
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3. Humans have an inclination to know the truth about God and to live in Society. Other things
that pertain to this principle are shunning ignorance and avoiding offending those among whom
we live.

b) Secondary precepts of NL.

It is derived from the general precepts of NL

But, practical reason is busied with contingent matters, and "consequently, although there
is necessity in the general principles, the more we descend to matters of detail, the more
frequently we encounter defects." In matters of action, which natural law encompasses, "Truth
and or practical rectitude is not the same for all, as to matters of detail, but only as to general
principles..." Neither is "truth or rectitude" the same for all nor, where it is the same, is it equally
known by all.

Thus secondary precepts:-

needs more detailed and analytical thought into the issues;

includes principles which some men may not be aware/know of

is not obvious to all men (eg One must not kill (Gen Precpts); but one ought not bomb innocent
people at war.)

It can be blotted out from men’s heart in specific situations though evil persuasions, vicious
customs and corrupt habits.

There can be variation in the existing code of the secondary precepts of but not in the
main/general precepts of NL itself.

“Those things to which man is naturally inclined pertain to natural law. Among such inclinations
is one particular to man: The inclination to act according to reason. Reason characteristically
proceeds from the general to the particular, as Aristotle says. Speculative reason differs from
practical reason in this respect, however. Since speculative reason deals primarily with necessary
things which cannot be otherwise than they are, both its general premises and its particular
conclusions are unerringly true. Practical reason, however, deals with contingent matters
involving human activity. Thus, even if the general premises are necessary, the more we descend
to particulars the more frequently we discover defects.”

Divine Law

Reasons for divine law

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By the natural law the eternal law is participated proportionately to the capacity of human nature.
But to his supernatural end man needs to be directed in a yet higher way…. [It is not] enough for
[man] to proceed from principles imparted by nature, which are the precepts of the natural law…
there is need for certain additional principles, namely, the precepts of the Divine law. Hence the
additional law given by God, whereby man shares more perfectly in the eternal law.

The secret things belong to the LORD our God, but the things revealed belong to us and to our
children forever, that we may follow all the words of this law.

Whether there is but one Divine law

It would seem that there is but one Divine law. Because, where there is one king in one kingdom
there is but one law. Now the whole of mankind is compared to God as to one king, according to
Psalm 46:8: "God is the King of all the earth." Therefore there is but one Divine law.

Human Law

“…just as, in the speculative reason, from naturally known indemonstrable principles, we draw
the conclusions of the various sciences, the knowledge of which is not imparted to us by nature,
but acquired by the efforts of reason, so too it is from the precepts of the natural law, as from
general and indemonstrable principles, that the human reason needs to proceed to the more
particular determination of certain matters. These particular determinations, devised by human
reason, are called human laws,…”

Why are human laws needed?

1) But since some are found to be depraved, and prone to vice, and not easily amenable to words,
it was necessary for such to be restrained from evil by force and fear, in order that, at least, they
might desist from evil-doing, and leave others in peace, and that they themselves, by being
habituated in this way, might be brought to do willingly what hitherto they did from fear, and
thus become virtuous. Now this kind of training, which compels through fear of punishment, is
the discipline of laws. Therefore in order that man might have peace and virtue, it was necessary
for laws to be framed: for, as the Philosopher says (Polit. i, 2), "as man is the most noble of
animals if he be perfect in virtue, so is he the lowest of all, if he be severed from law and
righteousness"; because man can use his reason to devise means of satisfying his lusts and evil
passions, which other animals are unable to do.

2) Since then the animated justice of the judge is not found in every man, and since it can be
deflected, therefore it was necessary, whenever possible, for the law to determine how to judge,
and for very few matters to be left to the decision of men. Thus, human law is needed to proceed
to the more particular determination of certain matters.
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Human Law is part of the divine government. There is no difference between faith and reason;
on the contrary reason is a partial manifestation of faith.

Unjust laws

1. Human laws are either just or unjust.

2. Laws are said to be just either because of their end, when they are ordained to the
common good; or because of their author, when the law does not exceed the power of the
lawmaker; or because of their form, when burdens are distributed equitably among
subjects for the common good.

3. If they are just, they have the power to bind our conscience because of the eternal law
from which they are derived.

4. Human laws are valid if it follows natural law and is just.

5. As Aquinas puts it: “[E]very human law has just so much of the nature of law as is
derived from the law of nature. But if in any point it deflects from the law of nature, it is
no longer a law but a perversion of law” (ST I-II, Q.95, A.II).

6. "No reason of law or advantage of equity allows us to interpret harshly and render
burdensome those healthy measures which were originally enacted for man s welfare."

7. However laws are unjust in two ways: First, they may be such because they oppose
human good by denying the three criteria just mentioned. This can occur because of their
end, when a ruler imposes burdens with an eye, not to the common good, but to his own
enrichment or glory; because of their author, when someone imposes laws beyond the
scope of his authority; or because of their form, when burdens are inequitably distributed,
even if they are ordered to the common good.

Effect -Such decrees are not so much laws as acts of violence, because, as Augustine
says, "An unjust law does not seem to be a law at all." Such laws do not bind the conscience,
except perhaps to avoid scandal or disturbance, on account of which one should yield his
right. “Lex Injustia Non Est Lex.”

8. Second, laws may be unjust because they are opposed to the divine good, as when
the laws of tyrants lead men to idolatry or to something else contrary to divine law.
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Effect- Such laws must never be observed, because "one must obey God rather than
men".

RENAISSANCE PERIOD

A) Hugo Grotius

Bk-Opera Omnia Theologica, vol. III, De iure praedae commentarius (Commentary on the law
of prize and booty, henceforth referred to as "DIP") and De iure belli ac pacis ("DIB").

"the mother of right — that is, of natural law — is human nature" (Prol. §16).

‘The law of nature is a dictate of right reason, which points out that an act, according as it is or is
not in conformity with rational nature, has in it a quality of moral baseness or moral necessity;
and that, in consequence, such an act is either forbidden or enjoined" (I.1.10.1). If an action
agrees with the rational and social aspects of human nature, it is permissible; if it doesn't, it is
impermissible (cf. I.1.12.1). That is to say, the source of the natural law is the (in)compatibility
of actions with our essences as rational and social beings.’

For Grotius, a study of nature itself — and more specifically, a study of human nature — can
suffice to teach us the essentials of ethics, politics and law.

Natural laws apply to all rational and social beings as such. It doesn't matter what they think or
believe; if they are rational and social, they are bound by the law of nature (see, e.g., DIB
II.20.44).

B) Thomas Hobbes

Bk- De Cive

 What is natural?

‘Natural is what which God hath declared to all men by his eternal word born with them, to
wit their natural reason.’ (On Man, 1991:73)

 Man is in charge of society and we could fashion political instruments to allow us to pursue
our end and interests.

 How does Man do it- by exercising their reasons.

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‘Though nothing can be immortal, which mortals make, yet if man had the use of reason they
pretend to , their Common-wealths might be secured, at least, from perishing by internal disease.
For by nature of their Institution, they are designed to live, as long as Mankind, or as the Laws of
Nature or as Justice is self, which gives them life….’ (L29:221)

Bk-Leviathan (1651)

Hobbes contradicts himself form De Cive

 3 types of NL-Man’s reason, Man’s aim to seek peace and man’s inherent sense of
contractual negotiation.

 Hobbes focuses on Man’s self assertion and creativity.

 He creates a state of nature which man exists with three conditions of equality: equality
of strength, equality of prudence or ability, and equality of hope.
 Equality of strength does not imply that each person possesses the same amount
of physical strength as the next person, but only that 'the weakest has strength
enough to kill the strongest'. (Leviathan, EW III 110.) People are of equal strength
in the sense that each is endowed with enough physical strength to put the other in
fear. ‘Even the strongest must sleep, and then even the weakest can sneak up and
put a dagger to such a person's heart.’
 The second equality, of prudence or the ability to pursue one's own interests, is a
greater 'equality among men, than that of strength'. (Ibid.) Equality of prudence
results from the equal opportunity to learn from experience. 'For prudence is but
experience; which equal time, equally bestows on all men, in those settings they
equally apply themselves unto.' (Ibid.)
 The third equality, the equality of hope. ‘Men are equal in their hope in the
attaining of our Ends.’

 Condition of Man in its natural state-

 ‘Hereby it is manifest, that during the time men live without a common Power to
keep them all in awe, they are in that condition which is called Warre…as if of every
man against every man….consisteth not in actual fighting but in the known
disposition thereto…..which is worst of all, continual fear and danger or violent
death, And the life of man, solitary, poor, nasty, brutish and short.’ (L. 13:89)
 ‘ The desires and other passion of man are in themselves no Sin. No more are the
actions that proceed from those passions till they know a Law that forbids
them…’(L 13:89)….nothing can be unjust. The notions of right and wrong, justice
and injustice have there no place.’(L13:90)

 What is man’s aim?

‘ the liberty each man hath,to use his own power, as he will himself, for the preservation
of his own nature…in the absence of external impediments(Liberty).
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Seek peace and follow it. Thus to achieve this man is willing ‘to lay down this right to do
all things; and be contented with so such liberty against the other men, as he would allow
other men against himself.’ (L,14:91)

 On social contract: ‘all their Wills, by plurality of voices,unto one Will:which is as much
to say to appoint one Man, or Assembly of men, to beare their Person…this is more than
Consent…it is a real Unitie of them all, in one and the same Person….as if every man
should say to every man, I authorise and give up my right of governing my self to this
man or to this Assembly of men on this condition that thou give give up thy right to him
and Authorise all this actions in like manner… This is the generation of that
LEVIATHAN, or rather of the Mortal God to which we own under the Immortal God,
our peace and defence (L,17:120)

b) JOHN LOCKE
Bk-Two treaties of Government
Lived in England during the ‘Glorious Revolution.’ Also a time where parliament was
established in England
Used the idea of social contract to support the concept of limited government or constitution.

On the Natural State of Man- “A state of peace, goodwill, mutual assistance and preservation….’
‘If man in the state of nature be so free, as has been said; if he be absolute lord of his own person
and possessions, equal to the greatest, and subject to no body, why will he part with his
freedom?’ Second Treatise of Government, Ch. IX, sec. 123
Man being born, as has been proved, with a title to perfect freedom and an uncontrolled
enjoyment of all the rights and privileges of the law of nature, equally with any other man…,hath
by nature a power not only to preserve his property that is , his life, liberty and estate against the
injuries and attempts of other men, but to judge of and punish the breaches of that law in others,
as he is persuaded the offence deserves….’
The Law of Nature, which is on Locke’s view the basis of all morality, and given to us by God,
commands that we not harm others with regards to their “life, health, liberty, or possessions”
(par. 6). Because we all belong equally to God, and because we cannot take away that which is
rightfully His, we are prohibited from harming one another. So, the State of Nature is a state of
liberty where persons are free to pursue their own interests and plans, free from interference, and,
because of the Law of Nature and the restrictions that it imposes upon persons, it is relatively
peaceful.

Effect of a State of Nature without laws

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Since the State of Nature lacks civil authority, once war begins it is likely to continue. And this is
one of the strongest reasons that men have to abandon the State of Nature by contracting together
to form civil government. The State of Nature therefore, is not the same as the state of war, as it
is according to Hobbes. It can, however devolve into a state of war, in particular, a state of war
over property disputes.

Difference btw Locke and Hobbes

Premises

Issue Locke Hobbes

Man is not by nature a social
Human nature Man is by nature a social animal. animal, society could not exist
except by the power of the state.
In the state of nature men mostly kept
their promises and honored their
obligations, and, though insecure, it
was mostly peaceful, good, and
pleasant. He quotes the American
frontier and Soldania as examples of
people in the state of nature, where
property rights and (for the most part)
peace existed. Princes are in a state of “no society; and which is worst of
nature with regard to each other. all, continual fear, and danger of
The state of
Rome and Venice were in a state of violent death; and the life of man,
nature
nature shortly before they were solitary, poor, nasty, brutish, and
officially founded. In any place where short.”
it is socially acceptable to oneself
punish wrongdoings done against you,
for example on the American frontier,
people are in a state of nature. Though
such places and times are insecure,
violent conflicts are often ended by the
forcible imposition of a just peace on
evil doers, and peace is normal.
Knowledge of Humans know what is right and Our knowledge of objective, true
natural law wrong, and are capable of knowing answers on such questions is so
what is lawful and unlawful well feeble, so slight and imperfect as to
enough to resolve conflicts. In be mostly worthless in resolving
particular, and most importantly, they practical disputes. In a state of
are capable of telling the difference nature people cannot know what is
between what is theirs and what theirs and what is someone else’s.
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Property exists solely by the will of

the state, thus in a state of nature
men are condemned to endless
belongs to someone else. Regrettably
violent conflict. In practice
they do not always act in accordance
morality is for the most part merely
with this knowledge.
a command by some person or
group or God, and law merely the
momentary will of the ruler.
The gap between our ideas and words
about the world, and the world itself,
is large and difficult, but still, if one
man calls something good, while
another man calls it evil, the deed or It is the naming, that makes it so.
man referred to still has real qualities Sometimes Hobbes comes close to
Epistemology
of good or evil, the categories exist in the Stalinist position that truth itself
the world regardless of our names for is merely the will of the ruler.
them, and if one man’s word does not
correspond to another mans word, this
a problem of communication, not
fundamental arbitrariness in reality.
Men cannot know good and evil,
and in consequence can only live in
Peace is the norm, and should be the
peace together by subjection to the
norm. We can and should live together
absolute power of a common
Conflict in peace by refraining from molesting
master, and therefore there can be
each other’s property and persons, and
no peace between kings. Peace
for the most part we do.
between states is merely war by
other means.

Conclusions
Issue Locke Hobbes
We give up our right to ourselves
If you shut up and do as you are told,
exact retribution for crimes in return
you have the right not to be killed,
for impartial justice backed by
The Social and you do not even have the right not
overwhelming force. We retain the
Contract to be killed, for no matter what the
right to life and liberty, and gain the
Sovereign does, it does not constitute
right to just, impartial protection of
violation of the contract.
our property
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No right to rebel. “there can happen

no breach of covenant on the part of
the sovereign; and consequently none
If a ruler seeks absolute power, if he
of his subjects, by any pretence of
acts both as judge and participant in
Violation of forfeiture, can be freed from his
disputes, he puts himself in a state of
the social subjection.” The ruler’s will defines
war with his subjects and we have the
contract good and evil for his subjects. The
right and the duty to kill such rulers
King can do no wrong, because lawful
and their servants.
and unlawful, good and evil, are
merely commands, merely the will of
the ruler.
Civil society is the application of
force by the state to uphold contracts
Civil society precedes the state, both and so forth. Civil society is a creation
morally and historically. Society of the state. What most modern
Civil Society
creates order and grants the state people would call civil society is
legitimacy. “jostling”, pointless conflict and
pursuit of selfish ends that a good
government should suppress.
You conceded your rights to the
Rights Men have rights by their nature
government, in return for your life
Whatever the state does is just by
The only important role of the state is
Role of the definition. All of society is a direct
to ensure that justice is seen to be
State creation of the state, and a reflection
done
of the will of the ruler.
Authorization is meaningless, except
that the authorization gives us reason
to believe that the use of force is just.
The concept of just use of force is
If authorization does not give us such
Authorized meaningless or cannot be known. Just
confidence, perhaps because the state
use of force use of force is whatever force is
itself is a party to the dispute, or
authorized
because of past lawless acts and
abuses by the state, then we are back
in a state of nature.
.

c. Jean-Jacques Rousseau

 Rousseau has two distinct social contract theories. The first is found in his essay,
Discourse on the Origin and Foundations of Inequality Among Men, commonly referred
to as the Second Discourse.
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 According to Rousseau, the State of Nature was a peaceful and quixotic time. People
lived solitary, uncomplicated lives. Their few needs were easily satisfied by nature.
Because of the abundance of nature and the small size of the population, competition was
non-existent, and persons rarely even saw one another, much less had reason for conflict
or fear. Moreover, these simple, morally pure persons were naturally endowed with the
capacity for pity, and therefore were not inclined to bring harm to one another.

 As time passed, however, humanity faced certain changes. As the overall population
increased, the means by which people could satisfy their needs had to change. People
slowly began to live together in small families, and then in small communities. Divisions
of labor were introduced, both within and between families, and discoveries and
inventions made life easier, giving rise to leisure time. Such leisure time inevitably led
people to make comparisons between themselves and others, resulting in public values,
leading to shame and envy, pride and contempt. Most importantly however, according to
Rousseau, was the invention of private property, which constituted the pivotal moment in
humanity’s evolution out of a simple, pure state into one characterized by greed,
competition, vanity, inequality, and vice. For Rousseau the invention of property
constitutes humanity’s ‘fall from grace’ out of the State of Nature.

Social Contract

The normative social contract, argued for by Rousseau in The Social Contract (1762), is meant
to respond to this sorry state of affairs and to remedy the social and moral ills that have been
produced by the development of society.

The Social Contract begins with the most oft-quoted line from Rousseau: “Man was born free,
and he is everywhere in chains” (49).

Humans are essentially free, and were free in the State of Nature, but the ‘progress’ of
civilization has substituted subservience to others for that freedom, through dependence,
economic and social inequalities, and the extent to which we judge ourselves through
comparisons with others. Since a return to the State of Nature is neither feasible nor desirable,
the purpose of politics is to restore freedom to us, thereby reconciling who we truly and
essentially are with how we live together. So, this is the fundamental philosophical problem that
The Social Contract seeks to address: how can we be free and live together? Or, put another way,
how can we live together without succumbing to the force and coercion of others?

The most basic covenant, the social pact, is the agreement to come together and form a people, a
collectivity, which by definition is more than and different from a mere aggregation of individual
interests and wills. This act, where individual persons become a people is “the real foundation of
society”

So, just as individual wills are directed towards individual interests, the general will, once
formed, is directed towards the common good, understood and agreed to collectively. Included in
this version of the social contract is the idea of reciprocated duties: the sovereign is committed
 19

to the good of the individuals who constitute it, and each individual is likewise committed
to the good of the whole. Given this, individuals cannot be given liberty to decide whether it
is in their own interests to fulfill their duties to the Sovereign, while at the same time being
allowed to reap the benefits of citizenship. They must be made to conform themselves to the
general will, they must be “forced to be free” (64).For Rousseau, this implies an extremely
strong and direct form of democracy.

Conclusion for Rosseau.

We are endowed with freedom and equality by nature, but our nature has been corrupted by our
contingent social history. We can overcome this corruption, however, by invoking our free will
to reconstitute ourselves politically, along strongly democratic principles, which is good for us,
both individually and collectively.

Critisms-Rosseau

 The majority opinion is manipulative tyranny. JS Mill on Liberty ‘The will of the
people…. means the will of the majority and consequently, may desire to oppress a part
of their numbers.’

Revival of Natural Law (20th century)

A) John Finnis
A philosopher and a British advocate
Book ‘Natural Law and Natural Rights (1980)’
He reinstated Natural Law

The differences between Finnis’ theory and the traditional NL theories

 NL is not based on moral principles which is derived from observation and men’s rational
thinking. Instead NL is “….a set of principles of practical reasonableness in ordering
human life…..”. It is self evidently good.

 In fact he rejects much of the natural law tradition.

 Unjust laws are still laws.

Finnis’ theory of NL

 Although there are different cultures within society, there are certain basic goods that
exist in human beings.
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 These basic goods are self evident. “Here, each of us, however extensive his knowledge
of the interest….. is alone with his own intelligent grasp of indemonstrable (because it is
self-evident) first principles of his own practical reasoning….”

 Natural law is a ‘set of principles of practical reasonableness in ordering human life and
human community.’ NL is pre-moral.
What are the basic goods?
“…each reader must ask himself: “What are the basic aspects of my well-being?”…. At this
point in our discourse (or private meditation)…the proper form of discourse is:….is a good, in
itself, don’t you think?”
These basic goods are objective values in that sense that every r’ble person must assent to their
value as objects of human striving. Basic goods…“ aspects of the full-being of human persons,
aspects essentially immeasurable and incommensurable…’
It is aimed for its own sake and gained for its own sake.
They are self evidently good for man
‘…none can be analytically reduced to being merely an aspect of any of the others, or being
merely instrumental in the pursuit of any of the others…..’ They are all of equal importance.
The person committed to the proposition believes that his proposition is worth making and he
believes that it is worth pursuing or knowing.
There are countless objectives and forms of good but those not listed are ‘ways or combinations
of ways’ of pursuing one of the seven. ….’ But these other aspects… they are not themselves
basic values; rather they are ways of pursuing the basic goods….’
These basic goods cannot be added.
The importance of each basic goods varies with each individual. A basic good is most important
to us if we focus specifically on one basic good(s) at a particular stage in our life. The
importance of a particular basic good depends upon the importance which an individual place on
it which will vary at their different stages of their life.
It is wrong to choose any thing which contravenes any of the basic goods and it is duty for
humans to respect the 7 basic goods
There are 7 basic goods which are as follows:-
Finnis says that of the seven "basic goods," three are substantive (existing prior to action) and
four are reflexive (depending on our choices). The three substantive goods are: 1) human life
(health and procreation); 2) knowledge and esthetic appreciation; 3) skilled performance. The
four reflexive goods are: 1) self-integration; 2) authenticity/practical reasonableness; 3) justice
and friendship; and 4) religion/holiness.
 21

The nine principles of practical reasonableness then guide us how to act in fulfilling these
seven basic goods. A few are illustrative. 1) "Good is to be done and evil is to be avoided." As
you see, this comes right out of Aquinas and is also Aquinas' basic principle of moral action. 2)
In doing the good and avoiding evil, one ought to choose and will only those possibilities where
willing and action are compatible with "integral human fulfillment." 3) One is to respect every
basic value in every act...that is, never choose against a basic good. 4) Show no arbitrary
preference among people; 5) Foster the common good of one's community. 6) Form a rational
plan of life. 7) Have no arbitrary preferences among any of the basic goods (that is, consider
them all "equal").
Law enters into the picture as a way of effecting the realization of the basic goods. Laws
therefore should reflect the basic goods and flow from the principles of practical reasonableness.
Thus, law for Finnis is a combination of the 7 basic goods and 9 practicable reasonableness.
Finnis’s view on unjust law
Divided ‘law’ into 2 divisions:
a) the focal sense
This is law in its ideal form/ pure form (law which is philosophically deduced) where existing
forms are merely derivatives of it.
“All my analyses of authority and obligation can be summed up in the following theorem: the
ruler has very strictly speaking, no right to be obeyed: but he has the authority to give directions
and make laws that are morally obligatory and that he has the responsibility of
enforcing....Therefore, if he uses his authority to make stipulations against the common good, or
against any of the basic principles of practical reasonableness, those stipulations altogether lack
the authority they would otherwise have by virtue of being his. More precisely....[they] simply
fail, of themselves, to create any moral obligation whatever....

b) law in the secondary sense of that term.

“It may be the case, for example, that if I am seen by fellow citizens, to be disobeying or
disregarding this ‘law’, the effectiveness of other laws, and/or the general respect of citizens of
the authority of a generally desirable ruler or constitution, will probably be weakened, with
probable bad consequences for the common good.”\
“So if any unjust stipulation is, in fact, homogenous with other laws in its formal source, in its
reception by the courts and officials and its common acceptance, the good citizen may (not
always) be morally required to conform to that stipulation to the extent necessary to avoid
weakening ‘the law’, the legal system....as a whole....the ruler still has the responsibility of
repealing rather than enforcing his unjust law....but the citizen.....may meanwhile have
the....collateral...obligation to obey it.”
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LON FULLER
Prof of Jurisprudence in Harvard University
Book ‘The Morality of Law” 1969.

a) His definition of ‘Natural Law’

-NL is “the enterprise of subjecting human conduct to the governance of rules.”
-He does not view NL as oppose to the traditional juris.
“This natural laws have nothing to do with any ‘brooding omnipresence in the skies’ nor have
they the slightest affinity with any such proposition at that ‘ it is in violation of God’s law....They
are not ‘higher laws.’
-NL is viewed from a procedural aspect (procedures on how laws are passed) and not in its
substantive aspect (the content of the laws itself)
“....The term ‘procedural’ is not with substantive aims of legal rules but with the ways in which a
system of rules for governing human conduct must be construed and administered if it is to be
efficacious and...remain what it purports to be.
-The overriding task of the law is thus to keep open the lines of communication between
members of society.

b) Every law has two aspects of morality i.e.-

i) external morality (the morality of duty)- the moral aims and purpose of law, which determines
the authority and respect attaching to the legal system. What is the specific purpose of passing
these laws? It touches on the basic aspects of life. Can be enforced by law.
ii)internal morality (the morality of aspiration)-This is the ideal state to achieve /make ‘law as a
purposeful enterprise.’ This is the morality of excellent life, the good life and the fullest
realization of human powers. Man wants to lead as excellent a life as possible. To achieve it
these laws must follow the 8 desideratas. Cannot be enforced by law. It is the ‘procedural aspect
of Natural Law.’ These are 8 features of law that constitute that minimum condition to form a
legal system.
“Where the morality of aspiration stars at the top of human achievement, the morality of duty
starts at the bottom. It lays down the basic rules without which an ordered society is
impossible ....eg the Ten Commandments...It speaks in terms of ‘thou shall not’ and less
frequently of ‘thou shall.’ It does not condemn men for failing to embrace opportunities for the
 23

fullest realization of their powers. Instead it condemns them for failing to respect the basic
requirements of social living.”

The 8 desideratas.
Generally there are two points:
a) Law making is a purposive activity which can fail in its purpose. The basic object of law
making is to subject human conduct to the governance of rules. To achieve this objective
i) there must be rules, ii) they must be prospective not retrospective; iii) the rules must be
published; iv) it must be intelligible; v) the rules must not be contradictory; vi) compliance with
the rules must be possible; vii) the rules must not change constantly; viii) it must be congruent
between the rules as declared and the rules as applied by the officials.
b) the 8 desideratas represent the 8 ways in which the enterprise of law making can go astray. A
complete failure to follow any one of the 8 would result in something which that is not a legal
system at all and complete compliance with all the eight conditions represents a moral aspiration.
The 8 minimum conditions when perfectly complied with represents the moral ideal towards
which the law should strive to achieve.
They point to 8 min conditions for the existence of anything that is regarded as law/legal system.

Hart v Fuller Debate

See article y LB Cruzon.

Background of the debate: Nazi wife informer, mass killing of Jews,

state enforced disappearance. Def: their actions were legal.
Fullers argument: Natural Lawyers
Hart’s argument: Positivist. Must obey and follow man made law (law). Look at
the law (process) but not the content.
Nazi law according to the Positivist: Hart
Legal-follow the law; illegal if you don’t follow THE LAW…
NO LAW…NON LEGAL. (No legality)
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Eg: A/P S1 You must stop at the red light (xxx Act 2020)
Stop at the red light: LEGAL
Go at the red light: ILLEGAL
No A/P at all: Stop/Go
Hart’s remedy: German Parliament today (post war) pass another a/p…give this
a/p retrospective effect to overrule the laws in WWII

Hart’s Min Content of Natural Law

Bk- HLA Hart, The Concept of Law (Oxford: Clarendon Press, 1961)
He is reinstating the position of NL from a semi-sociological point of view.
There are certain truths which are Hart chooses what he feels is the lowest common denominator,
the basic indisputable minimum which (almost!) all people will agree on: survival, nothing more,
nothing less. 
There are two reasons that Hart provides for picking survival as the basic end for humankind.
First, that not only do almost all men wish, above all else, to continue living, but the very
structures of our thought and language (words like harm and benefit, illness and cure, disease
and safety) embody this desire. Second, while specifically discussing law, we are discussing how
best to govern the conduct of people who are living together; and to achieve that, they must be
living in the first place!
[Living is the end in itself]
Therefore, given that survival is an undisputed end, laws must contain certain content to make
sure that that end is realised. This Hart calls the minimum content of natural law. 

Man is not a suicide club

Therefore, Hart's idea of the minimum content of natural law can be defined in the following
manner:

"Proposition 1: Given that law is a mechanism for regulating the behaviour of individuals in a
social association, it must have a certain basic, minimal content in order that the association be
 25

viable.

Proposition 2: In turn, for the association to be viable, the survival and continued existence of at
least some of its members must be ensured.*

Proposition 3: The content which ensures such survival is called the minimum content of natural
law."

Obviously, the content of such law is based on certain facts grounded in human nature and the
state of human existence. Hart lists five(truism) such facts: 
Human vulnerability, which entails a restriction on the free use of violence;
Approximate equality, which again, restricts the use of aggression; 
Limited altruism, which requires systems of mutual forbearance;

Why do I do what I don’t want to do..the things that I am suppose to do I don’t

Limited resources, which require some system of property;

Limited understanding and strength of will, which require some form of sanctions. 

These five truisms about human nature, claims Hart, makes it a "natural necessity" that law has a
certain content that embodies the minimum forms of protection for persons, property and
promises.

Laws that are pass to protect these are called NL.

CRITICISM ON NATURAL LAW

1. You cannot extract an ‘is’ (what man’s nature is’ from an ‘ought’(what man ought to be) See
David Hume.

2. Natural law obliterates the difference between the scientific laws of nature and the rules of
morality. Kelsen

3. “Like a harlot, natural law is at the disposal of everyone. The ideology does not exist that
cannot be defended by an appeal to the law of nature. And, indeed, how can it be otherwise,
since the ultimate basis for every natural right lies in a private direct insight, an evident
contemplation, an intuition. Cannot my intuition be just as good as yours? Evidence as a criterion
of truth explains the utterly arbitrary character of the metaphysical assertions. It raises them up
 26

above any force of inter-subjective control and opens the door wide to unrestricted invention and
dogmatics.” (On Law and Justice, § 58) Alf Ross. See NL is used to justify authoritarism, respect
for King, democracy, protection of land, international law, Christianity, etc….

4. Natural law assumes that man is good and thus natural law can be deduced from them. Kelsen.

5. Nonsense on stilts. Ie. NL is subjective-Jeremy Bentham.

6. Finnis basic goods- does not explain to us why it is only 7 goods. How did Finnis lists his
basic goods.

Self evident=everyone in every generation….study? sample?data?

Why 7…ask…Monks, Nuns, Jesuit Priests…poverty…

All 7 basic goods equal importance…’practical reasonableness +9)

7. Civil disobedience on moral grounds- MacGuigan.

Religion—Rastafarian…

8. If it is possible to find rules of natural law and they are self-evident, then you don’t need
positive law. Yet N Lawyers state that positive law is necessary. (Pierre-Joseph Proudhon)
anarchist

9. NL justify positive law on the basis that man is bad. At the same time, their doctrine requires
an assumption that man is good because it is from human nature that natural law is said to be
deduced.

Positivism holds at its centre the belief that law isn't affected by morality,
but in essence {will be the} source of moral considerations.  For the reason
that morality can be a subjective {idea}, positivism suggests that the law
{will be the} source of morality, and that no extra-legal considerations
needs to be taken in to account. 
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