Droit Naturel : Théories et Critiques

Natural Law: An Exhaustive Overview

Natural law is a concept asserting the existence of a set of unwritten, universal values and principles inherent in nature or human nature, expressing a higher ideal of justice. It stands in contrast to positive law, which refers to human-made legal rules specific to a given time and place. This course delves into the historical evolution, philosophical underpinnings, criticisms, and contemporary relevance of natural law, demonstrating its multifaceted role in shaping legal thought.

Part I: Natural Law in the History of Legal Ideas

Chapter 1. Classical Natural Law

The origins of Western legal thought can be traced back to Greek and Roman antiquity. During this period, the concept of natural law began to emerge, evolving from a unified understanding of cosmos and social order to a more refined philosophical concept.

1. The Greeks: The Discovery of Natural Law

The notion of natural law gained prominence in Greece around the 6th and 5th centuries BCE, coinciding with the rise of philosophy and democracy. Initially, there was no clear distinction between nature (phusis) and law (nomos); both were intertwined within a pre-ordained cosmic and social harmony, understandable by humans endowed with logos (reason). Each being had a telos (purpose), the pursuit of which fulfilled its nature and contributed to this universal order.

• Intellectual and Political Mutation: A significant shift occurred from mythical narratives to reason-based discourse. Questions of good, evil, right, and wrong were no longer external impositions but matters of rational understanding. This intellectual development paved the way for identifying universal principles and questioning traditional authorities.
• Emergence of Cities and Law: Politically, the formation of city-states, especially Athens, brought forth laws as a common work of the people (auto-nomia, self-governance). This elevated the status of law to an almost sacred level, as exemplified by Demaratus's statement that for Spartans, law was an "absolute master."
• Socrates, Plato, and Aristotle vs. the Sophists: Two main approaches emerged regarding the origin of norms:
  • Sophist Relativism: Sophists, such as Protagoras and Antiphon, observed the divergence of legal systems across Greek cities and concluded that law and justice were relative and conventional. They argued that laws were mere human conventions, with justice sometimes equated with the natural law of the strongest. Antiphon, for instance, saw justice as merely not transgressing city rules, denying access to transcendent legitimacy.
  • Subversive Sophists (Callicles, Thrasymachus): More radical sophists openly challenged the established order. Callicles, in Plato's Gorgias, posited that positive laws were framed by the weaker majority to protect their interests, while true natural law dictated that the stronger and abler should rule. This "law of nature" was a Darwinian-like principle of the strongest, leading to a direct incompatibility with democratic ideals of equality. Thrasymachus, in Plato's Republic, argued that justice was merely the interest of the ruler and stronger, and injustice was more profitable. He viewed legal discourse as a facade for power's arbitrariness.
  • Socratic Counter-argument: Socrates, Plato, and Aristotle countered the sophists by advocating an alliance between reason (logos) and law (nomos). They believed that reason could identify a non-contingent normative model of justice. Socrates, famously accepting an unjust death sentence out of respect for human law, exemplified natural law's legitimizing function. Plato argued that the right way of life sought the perfection of human nature, including justice as harmony in a hierarchical order. He saw justice as an ideal, accessible through reason, suggesting that democracy, with its premise of equality, could run counter to natural law.

c) Aristotle (-384-322): The Father of Teleological Justice

Aristotle, "the Stagirite," profoundly influenced Western thought. His philosophy was empirical yet teleological, meaning everything has a natural purpose or end (telos) to fulfill. For Aristotle, the nature of a thing is what it is meant to become.

• Teleological Thinking: This is central to his ethics. The final cause of a human being is to become a virtuous, justice-loving citizen. Man, being endowed with logos, is capable of grasping this natural order.
• Potency/Act Distinction: An embryo is a potential human; an adult is the actualization of that potential. Similarly, men are potential citizens.
• Four Causes:
  • Material Cause: What a thing is made of (e.g., wood for a table).
  • Formal Cause: The essence or specific form (e.g., the design of the table).
  • Efficient Cause: The agent or force that brings about change (e.g., the carpenter). This is the modern understanding of causality.
  • Final Cause: The purpose or end towards which a thing strives (e.g., a table's purpose is for eating).
• Origin of Society: Aristotle viewed the state as a natural phenomenon, not a mere convention. Families unite to form villages, which combine to form city-states. Man is a political animal (politikon zōon), meaning society is natural to his existence and flourishing. Logos allows humans to distinguish justice from injustice, which is the bond of men in states.
• Justice in Nicomachean Ethics: Justice is a virtue, a middle ground between excess and defect. It is unique among virtues because an "excess" of justice is hard to define.
  • Universal Justice: Observing the law, a complete virtue directed at others. Aristotle believed laws adopted by citizens were presumed just and in harmony with natural justice.
  • Particular Justice: Respecting equality.
    • Distributive Justice: Giving each person what they deserve according to merit (e.g., wealth, honor). This operates on a geometrical proportion: if person A is twice as meritorious as person B, A receives twice as much. . Money (nomisma) was invented to make different things commensurable, deriving its name from law (nomos), not nature.
    • Corrective Justice: Restoring balance in transactions, whether voluntary (contracts) or involuntary (torts, crimes). This follows an arithmetical proportion, aiming to restore the initial state regardless of the parties' status. It concerns "difference in wrongs" and restores equality.
• Political Justice: Applies only to citizens who are free, equal (absolutely or proportionally), and associate to fulfill their needs. For Aristotle, women, children, foreigners, and slaves were not citizens, and thus political justice did not fully apply to them. This reflected the fundamentally unequal nature of Greek society. Slavery was justified by analogy with the soul and body, where the master commands the slave for the slave's own good.
• Natural Justice vs. Conventional Justice:
  • Legal Justice: Purely conventional, a rule that could have been otherwise but is binding once adopted (e.g., driving on the left or right).
  • Natural Justice: Has the same validity everywhere, independent of acceptance or rejection. Aristotle argued against sophist relativism by stating that while laws vary, nature is not entirely unchanging, suggesting a variability in natural law itself. This variability is not relativism; there is one naturally best constitution everywhere.
• Equity (Epikeia): A correction of legal justice. Law, by its general nature, cannot foresee all particular cases. Equity allows for adjusting the application of a general rule in exceptional circumstances to align with the legislator's presumed intent, rather than blindly applying the letter of the law. It is superior to legal justice in such specific instances, serving as an amendment.

2. The Romans: Ius and the Influence of Stoicism

Roman law developed differently from Greek legal thought, initially heavily religious and ritualistic. The Roman ius, unlike the Greek nomos, evolved into a technical, jurisprudential science.

• Secularization and Legal Science: The ius gradually became secularized, marked by ritual but guided by experts (pontiffs, jurists). This led to the emergence of an autonomous legal profession and a science of law, absent in Greece. The Twelve Tables (451-450 BCE) represented an early effort to codify laws publicly, though interpretation remained with the pontiffs.
• Ius Gentium: Developed by praetors to resolve disputes involving non-Roman citizens, based on common customs, common sense, and good faith. This concept evolved into a common law of all peoples, later seen as closely related to natural law.
• Greek Intellectual Influence: Despite military conquest, Greece profoundly influenced Roman intellectual life, particularly through Plato, Aristotle, and the Stoics. Cicero, notably, transmitted Stoic ideas into Roman thought.

b) Cicero (-106-43): Reason, Nature, and Universal Law

Cicero, a Stoic philosopher and statesman, was instrumental in integrating Greek philosophical reflections on natural law into Roman thought.

• Stoicism: A philosophical school (founded by Zeno of Kition) that held nature, a rational and deterministic organic unity, to be identical with God. The supreme good was virtue, closely associated with reason and nature. Stoics believed in a universal human nature, leading to the idea of natural equality among men, expressed as the divine will permeating the cosmos. Chrysippus argued that law (nomos) governs everything, defining good/bad and just/unjust.
• Society and the Rule of Law: Cicero, echoing Aristotle, defined a people as an assemblage united by agreement on law (iuris consensu) and shared interests. This "consensus on law" and the "will to live together" were central to a republic. He stated that laws are the soul of the state, ensuring freedom by limiting arbitrariness ("the magister who administer law... obey the law in order that we may be free"). This directly opposed the absolutist view of "Princeps legibus solutus est" (the prince is above the law).
• Natural Law: Cicero famously articulated natural law as "right reason in agreement with Nature; it is of universal application, unchanging and everlasting." It summons to duty and averts from wrongdoing. This law cannot be altered or abolished by human legislation. It is accessible through reason, common to all humanity, and its author is God. He cited the example of Sextus Tarquinius's rape of Lucretia, an act unjust even without written law, because it violated the eternal law rooted in the nature of things. For Cicero, laws that enjoin what is injurious are not true law, regardless of popular acceptance. The law is the "just distinction between right and wrong."
• Equality and Common Humanity: Cicero emphasized the fundamental equality of all men through shared reason, stating that only customs and opinions mask this inherent similarity. He connected law to man's inclination to love others.
• Practical Impact and Warnings: While Cicero's philosophical arguments opened a path for questioning unjust positive laws (an unjust law is not true law), he was not an advocate for civil disobedience or revolution. His concept of natural law, lacking a subjective right for individuals to exercise against authorities, remained largely theoretical in its practical application to positive law. Furthermore, his views were not necessarily representative of all Roman jurists.

c) Roman Law and its jurists: Ius Naturale, Ius Gentium, Ius Civile

Roman jurists provided important definitions of law, albeit with different interpretations than Cicero.

• Gaius (2nd century AD): In his Institutes, Gaius distinguished between ius civile (peculiar law of a state) and ius gentium (law established by natural reason among all mankind, followed by all peoples). He did not explicitly use "natural law" but his "law which natural reason establishes" strongly evoked Stoic-jusnaturalist ideas.
• Paulus (shortly after Gaius): Distinguished civil law from ius naturale, the latter applying to "what is in all circumstances just and good."
• Ulpian (170-223 AD): Introduced a tripartite distinction: ius civile, ius naturale, and ius gentium. His definition of ius naturale was unique: "that which nature teaches to all animals," including humans, concerning unions, procreation, and upbringing. This "amoralist" conception contrasted with Aristotle's, Stoics', and Cicero's emphasis on human reason. Ulpian’s definition is controversial and may have been altered by Justinian's jurists.
  • Despite this, Ulpian also defined justice as "steady and constant will to give each one what is his by law" and law (ius) as "the art of knowing what is good and just" (ars boni et aequi).
  • Ulpian, however, is also credited with "Princeps legibus solutus est" (the prince is above the law), which justifies absolutism and seems irreconcilable with his declarations on justice. This highlights the practical limitations of natural law in Roman legal thought; slavery, for instance, was considered lawful by ius gentium despite natural law asserting all men are born equal.

Chapter 2. Medieval Natural Law

Following the fall of the Western Roman Empire in 476, the intellectual landscape of Europe was dominated by the Christian Church. This era saw natural law integrated with Christian theology, with a significant shift from nature as the primary source of certainty to God.

1. Introduction: Context and Shift

• General Context: The Middle Ages (5th-15th centuries) saw Europe shaped by migrations and the pervasive influence of the Christian Church. Christian monotheism became the ultimate spiritual and legal reference, shifting the source of natural law from immutable, immanent nature (Greek view) to a transcendent God who granted freedom but imposed divine commandments. Key thinkers include Augustine, Thomas Aquinas, William of Ockham, and Spanish Scholastics.
• Passage of the Year 1000: Marked a decisive break, separating visible and invisible worlds. This fostered human autonomy and the notion of material growth. Politically, tension between temporal and spiritual powers (e.g., Investiture Controversy) emerged, leading to a gradual assertion of temporal authority and the eventual rise of nation-states.
• Rediscovery of Aristotle: From the 10th-11th centuries, Aristotle's works, preserved and transmitted through the Arab world, were rediscovered in Europe. This intellectual renewal, alongside the development of universities and Roman law teaching, profoundly impacted Christian philosophy, especially Thomas Aquinas. Justinian's Corpus Iuris Civilis provided a structured legal framework missing in Augustine's earlier, more diffuse Christian legal thought.

b) Natural Law Through the Middle Ages: From Collective to Individual

• Christian Influence: Paul of Tarsus introduced the postulate of moral equality and individual freedom, combining Stoic ideas of universal human nature with Jewish concern for divine will. This internalisation of divine will (Paul's "law written in their hearts") shifted focus from the social group to the individual.
• Early Christian Views: Paul of Tarsus's writings (Letter to the Romans 2:14-15) were interpreted by early Christian thinkers like Augustine and Isidore of Seville as referring to natural law, linking law to nature and conscience.
• Isidore of Seville (570-636): Adopted Ulpian's tripartite distinction (ius naturale, ius gentium, ius civile) but altered its meaning. Natural law, for Isidore, referred to what is "common to all nations...from a natural inspiration and not from any institution" (e.g., union of man and woman, education of children, common possession, right to repel violence). He explicitly rejected Ulpian's inclusion of animals. He distinguished divine law (fas) from human law (ius).
• Gratian (c. 1140): His Concordentia discordantium canonum (Decree of Gratian) provided two definitions of natural law:
  1. "That which is contained in the law and the gospel," summed up by the Golden Rule (do unto others as you would have them do unto you). This identified natural law with divine law, marking a significant departure from antiquity.
  2. "Common to all nations by reason of its universal origin in a natural instinct." This echoed Roman definitions but, like Isidore, applied only to humans.
  Gratian asserted natural law's priority and superiority over all custom and positive law, declaring contradictory norms null. However, he also accepted institutions like slavery, revealing inconsistencies and the difficulty of reconciling Roman tradition with Christian dogma.
• Rufinus (1160): Defined natural law as "a certain force instilled in every human creature by nature to do good and avoid the opposite." This was a significant shift: from the Stoic cosmic determinism (external order) to a subjective, internal faculty of humans, marking the birth of subjective natural law (rights). He also distinguished between commands, prohibitions (invariable core), and demonstrations (permissive law) in natural law, allowing for evolution (e.g., private property and slavery are permissible, though not original).

2. Augustine (354-430): Divine Justice and Earthly Order

Augustine, a pivotal figure bridging ancient philosophy and medieval Christian thought, struggled with the relationship between reason and faith.

• Philosophy: Reason leads to faith. He initially emphasized human will but later, influenced by original sin, believed man needed divine grace for salvation.
• City of God vs. City of Men: Augustine made a famous distinction between the perfect City of God and the imperfect City of Men, mirroring Plato's ideas of the ideal and real worlds.
• Justice: He critically re-evaluated Cicero's definition of a republic as a people united by agreement on law and common interests. For Augustine, true law required true justice, which could only be found in the City of God, whose founder and ruler is Christ. He famously stated, "An unjust law is no law at all" (mihi lex esse non videtur quae iusta non fuerit). However, this did not lead to advocacy for civil disobedience. Instead, human laws, even if unjust from a divine perspective, were necessary for earthly peace and order and must be obeyed. Order, for Augustine, was paramount, making human laws binding for practical reasons, regardless of their intrinsic justice.
• Divine Will and Natural Law: Augustine's position on the independence of natural law from divine will is ambiguous. While often presented as a voluntarist (eternal law = will of God), he also suggested that certain acts are intrinsically evil, making them forbidden by law (independently of divine will).

3. Thomas Aquinas (1225-1274): Reconciling Aristotle and Christian Dogma

In the 13th century, Thomas Aquinas, a Dominican, sought to integrate Aristotle's philosophy with Christian theology.

• Context: The rediscovery of Aristotle's works challenged the intellectual world, prompting Aquinas to reconcile Greek reason with Christian faith. He viewed grace as perfecting, not destroying, nature, and thus reason should serve faith.
• Society: Echoing Aristotle, Aquinas argued that man is a social and political animal, naturally inclined to live in groups. Society is natural, and the light of reason (logos), a divine gift, guides man towards this end. This revalued the earthly city compared to Augustine's view.
• Princeps Legibus Solutus Est?: Aquinas argued that the sovereign is above the coercive power of human laws (as no one can coerce himself) but subject to their directive force by his own will and by divine judgment. A principle of canon law ("patere legem quam ipse fecisti" – suffer the law you have made yourself) binds the prince morally, but he retains power to modify or dispense with laws. He also admitted that if a king becomes a tyrant and abuses his power, the people may depose him, but this should be done by public authority, not private initiative, differentiating it from Locke's later ideas.
• Four Categories of Law: Aquinas proposed a comprehensive legal framework:
  1. Eternal Law: God's rational governance of the universe, identified with divine reason. Humans do not know it directly but access its manifestations through natural law.
  2. Natural Law: Rational creatures' participation in eternal law. Its first precept is "do good, avoid evil." It follows human natural inclinations: self-preservation (shared with all substances), union of male and female and care of children (shared with animals), and knowing truth about God and living in society (unique to rational beings).
     • Natural law is universally identical in its first general principles but allows for variability in specific applications (second precepts), which can have exceptions (e.g., returning a deposit to a madman).
     • It is generally immutable, but can be "added to" by human reason (e.g., private property, slavery), enriching it without diminishing its core.
  3. Human Law: Particular determinations derived from natural law by human reason. It transposes natural law into practicable rules (e.g., traffic laws).
  4. Divine Law: God's positive law, contained in the Old and New Testaments. It directs man towards his supernatural end, complementing natural law.
• Natural Law and Written Law: Written law manifests both natural and positive law. Natural law derives its force from nature, not human enactment. Unjust human laws, if contrary to natural law, are "corruptions of law" and not binding. Aquinas rehabilitated Aristotle's equity (epikeia) to correct mechanical application of law when it leads to injustice, though for Aquinas, this inequity was rooted in contradiction with natural law, a slight shift from Aristotle's original meaning.
• Augustine vs. Aquinas: Aquinas, influenced by Aristotle, brought reason back to the center and revalued the city of men, moving from Augustine's vertical vision to a more nuanced view where human rationality and equity are crucial.

4. The Franciscan Rupture: Voluntarism vs. Intellectualism

The Franciscan Order in the 14th century, particularly through Duns Scotus and William of Ockham, introduced a significant shift towards voluntarism (emphasizing will) in natural law theory, challenging the intellectualism (emphasizing reason) of Aquinas.

• Divine Omnipotence: Franciscans asserted that the idea of harmonious, immutable natural order limited God's absolute omnipotence. For them, God could theoretically impose any law, limited only by the principle of non-contradiction.
• Duns Scotus (1266-1308): Rejected the idea that will depends on reason, as this would limit divine will and freedom. He believed law was essentially an act of will, reducing natural law's scope to what God must impose (e.g., prohibiting other gods) to avoid self-contradiction. He emphasized a world of individuals rather than Thomistic generalities.
• William of Ockham (1287-1347): A nominalist thinker, he argued that only individuals exist, and universal concepts (like "city") are mere names/labels (conventional terms). This fostered individualistic thinking.
  • Property Debate: Ockham engaged in a debate with Pope John XXII regarding Franciscan poverty. The Pope argued that Franciscans, by using consumable goods, implicitly owned them, as property was a natural right (Adam's original "dominion"). Ockham countered that "dominamini" meant power to govern, not individual property. He distinguished between a natural "power of use" (jus utendi) before original sin and the later "power of appropriation" (property), a human creation authorized by natural law after sin. Renouncing ownership was lawful, but not the natural right of use.
  • Birth of Subjective Right: Ockham meticulously distinguished between ius positivum and ius naturale in its subjective sense (an individual right). This is considered by some to be the birth of the notion of "droit subjectif" (individual right), emphasizing individual freedom and the right to self-preservation.

5. Towards Modern Natural Law: Natural Right and Reason

The Renaissance and Reformation (16th century) significantly contributed to the secularization of public life and individual emancipation from spiritual authority, setting the stage for modern natural law. Natural law, increasingly associated with human reason and the individual, gained traction among legal scholars.

• Spanish Scholastics (School of Salamanca): Reacting to reformist doctrines, thinkers like De Vitoria and Suarez defended a Thomistic revival. They emphasized "sufficient grace" allowing all men to rediscover natural law and justice. They evolved natural law into a more rational law, seen as a set of laws conferring individual rights, rather than a transcendent end. They used deductive reasoning to form a system.
  • Humanism and Natural Rights: Horrified by the treatment of Native Americans, the Spanish Scholastics developed the idea of natural rights. The Valladolid Controversy (1550-1551) pitted Las Casas (arguing for equality of all humans, inspired by Stoicism) against Sepulveda (justifying enslavement based on Aristotle and Aquinas, viewing Indigenous peoples as naturally inferior).
  • Francisco De Vitoria (1492-1546): Considered a father of public international law, he reinterpreted ius gentium as law applicable to states. He argued that natural law and ius gentium did not justify enslavement or dispossession of Native Americans, as they possessed rights (e.g., to existence, self-preservation, property). Property, though human-created, was protected by natural law. He adopted a "permissive" natural law.
  • Francisco Suarez (1548-1617): Sought a synthesis of Thomistic intellectualism and Scotist voluntarism. He argued that natural law is prescriptive, expressing God's will, but presupposes actions are intrinsically good or bad. It gives these actions a binding character. He also adopted the concept of "ius" as a subjective right (moral power over property, self-defense, self-preservation). He grounded state theory in human will and consent, protected by natural law, with public authority limited by tyrannical abuse. He also adopted the Greek notion of epikeia, shifting its meaning to include Christian compassion in legal application.
• English Jurists: Showed a gradual shift towards natural law derived from human reason.
  • Christopher Saint-Germain (1460-1540): His Dialogues between a Doctor and a Student identified the law of nature with the "law of reason," written in every man's heart, immutable, and superior to any conflicting positive law. He integrated Aristotle's and Aquinas's equity (epikeia), adding a dimension of "sweetness of mercy."
  • Richard Hooker (1554-1600): Further separated natural law from its divine dimension, seeing it as discoverable by reason without revelation. He reiterated the importance of natural sociability (reminiscent of Aristotle) but also emphasized an individualistic, contractual basis for civil society, anticipating social contract theories. He defined law broadly as any rule guiding moral action, not just sovereign commands.

Chapter 3. Modern Natural Law

The 17th and 18th centuries, marked by the Scientific Revolution and the Enlightenment, transformed the understanding of natural law, placing human reason and the individual at its core.

1. The Context: A New Paradigm

• 17th Century and Scientific Revolution: A period of political instability (Thirty Years' War, English Civil War, Glorious Revolution) and intellectual upheaval. The scientific revolution, based on a mechanical conception of nature (Aristotle's efficient cause), replaced authority with reason as the basis of knowledge. Descartes's method of systematic doubt and clear/distinct ideas became a model. The world was divided into thought/extent and being/ought-to-be. Jurists began to emulate geometers, seeking mathematical certainty.
• 18th Century and Enlightenment: Further emphasized man and reason, advocating intellectual freedom and rejecting spiritual authority. Kant's motto, "Sapere aude!" (Dare to know!), captured the spirit. This period sought simple, elementary rules based on reason and natural law to replace complex traditions.
• Theories of Modern Natural Law: A crisis of legitimacy for traditional law (tied to religion) emerged. Religious (Reformation), political (state fragmentation), cultural (discovery of non-European civilizations), and socio-economic (bourgeoisie) factors led to reason and the individual becoming central.
  • Rationalist-Idealist Current (Grotius): Law as a coherent, deductive system.
  • Empiricist-Voluntarist Current (Hobbes): Focus on human nature and individual self-preservation, leading to a secularized natural law.
  Modern natural law, by shifting focus from nature and God to man's reason, contained the seeds of its own decline. However, it flourished with thinkers like Pufendorf and Wolff, who aimed for mathematical certainty in law, deriving man's obligations and rights from human nature through deductive reasoning.

2. Grotius (1583-1645): The "Descartes of Law"

Hugo Grotius, a Dutch jurist and prodigy, is considered a founder of modern natural law and public international law. His work, particularly On the Law of War and Peace, applied a rigorous, systematic, and deductive method to legal principles.

• Method and Style: Grotius sought to derive legal truths from "notions so certain, that no one can deny them, without doing violence to his own nature." He aimed to create a logically structured system, like Euclid's axioms, detached from particular facts. This "Cartesian" approach, emphasizing reason and clear first principles, influenced modern jusnaturalists.
• Meanings of "Ius":
  1. What is just: Echoing Aristotle/Aquinas, "ius" means what is not unjust, based on the "nature of society of rational creatures" (e.g., abstaining from others' property, fulfilling promises). Its source is human natural sociability.
  2. Subjective Right: "A moral quality annexed to the person, justly entitling him to possess some particular privilege, or to perform some particular act." This "faculty" or "rigorous right" (e.g., freedom, property, demanding what is due) was central to his argument for just wars in defense of individual rights.
  3. Law in extensive sense: Any compulsory rule of moral action, obliging to what is good (objective law).
  Grotius's presentation of subjective right before objective right indicates a paradigm shift towards individualism.
• Man and Natural Law: Man's desire for society, "peaceably, and in a Community regulated according to the best of his Understanding," is the "Fountain of Right." This natural sociability is the "Mother of Natural Law." Core principles include abstaining from others' property, restitution, fulfilling promises, and repairing damages. These are expressed as obligations, reflecting the revival of permissive natural law (e.g., private property is human-instituted but protected by natural law). Civil laws derive from this obligation to fulfill covenants, making nature the "Great Grandmother of Civil Law."
• God and Natural Law (Etsi Deus non daretur): Grotius famously stated that natural law would hold "though we should even grant... that there is no God, or that he takes no Care of human Affairs." While not an atheist, this rhetorical move, building on Gregory of Rimini, was revolutionary in the context of the Scientific Revolution. It secularized natural law, making it independent of divine will, discoverable by reason alone, and inherently binding. He aligned with intellectualists against voluntarists, asserting that actions are intrinsically good or bad, and God cannot alter this (like 2+2=5).
• Right of Resistance: Complex and nuanced. Grotius accepted resistance against an aggressor in the state of nature but generally rejected it in the civil state to avoid anarchy. While acknowledging that commands contrary to natural or divine law need not be obeyed, he insisted on accepting the sanction. He admitted a right of resistance only in extreme necessity (e.g., against a very cruel king). His primary stance favored the king's power over subjects, not subversion.

3. Thomas Hobbes (1588-1679): Security and the Sovereign Will

Thomas Hobbes, deeply influenced by the mathematical method, broke from previous traditions by grounding political theory in the observation of human behavior and passions, particularly the fear of death.

• Methodology: Hobbes applied a scientific, deductive method to political science, akin to Galileo. He criticized philosophers for lacking clear definitions, advocating for geometry-like certainty in reasoning.
• Break with Tradition: Rejected the idea of man as a political/social animal, and natural law as an ideal end. Instead, he saw man driven by passions, primarily the fear of death and the instinct for self-preservation.
• Natural Rights as Primary: For Hobbes, the essential moral fact is not duty but an unconditional, absolute right to life. Natural law aims at self-preservation. This required conceptualizing man as anterior to society (state of nature) and society as a conventional creation (social contract).
• State of Nature: A state of "war of every man against every man" (bellum omnium contra omnes), driven by relative equality of physical and mental faculties leading to competition and conflict. In this state, there is no justice, injustice, good, evil, or property. "Where no law, no injustice." Life is "solitary, poor, nasty, brutish, and short." This reflects the English Civil War context. While a war-like state, it is a conceptual device, not a historical claim.
• Right of Nature (Jus Naturale) vs. Law of Nature (Lex Naturalis):
  • Jus Naturale: "The liberty each man hath to use his own power as he will himself for the preservation of his own nature; that is to say, of his own life." It is a right to everything, even another's body.
  • Lex Naturalis: "A precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life." It is an obligation.
  Hobbes distinguished right (liberty) from law (obligation), which are inconsistent in the same matter. Reason (fear of death, desire for commodious living) suggests "articles of peace."
• Laws of Nature and Social Contract:
  1. First Law: "To seek peace and follow it." (Fundamental)
  2. Second Law: Men should be willing to "lay down this right to all things" if others do likewise, leading to the social contract.
  3. Third Law: Men must "perform their covenants made," which is the "fountain and original of justice." Justice is defined as the execution of covenants. Before a Commonwealth, there is no coercive power, thus no justice or injustice, no property.
  Hobbesian justice is purely conventional, based on human will, not intrinsic validity. Force and fraud are virtues in the state of nature. He dismissed Aristotle's distributive/corrective justice, asserting value is determined by market appetite.
• The Leviathan: The social contract creates a "mortal god" – the Commonwealth or state – to ensure peace and defense. The contract is between men, not with the sovereign. The sovereign cannot breach the covenant, and subjects cannot rebel, even if the sovereign acts tyrannically (as subjects are authors of sovereign's acts). This prioritizes security over freedom. The state, through law, defines justice and injustice (nominalism/conventionalism).
• Limits to Sovereign Power: While subjects cannot rebel, the right to self-preservation is not totally abdicated. One can disobey orders to harm oneself or not resist attackers. No one is obliged to self-incriminate. The obligation to the sovereign lasts only as long as he can provide protection.
• Absence of God: Hobbes developed a political philosophy largely free from divine authority. Natural law is derived from factual equality and the right to survive. God's existence is irrelevant to the justification of the social contract. He subordinated ecclesiastical power to civil power.
• Critique of Aristotle: Man is not naturally political; reason leads to disagreement, language to deception. Government replaces the "best regime" with efficient, legitimate rule. Hobbes ushered in egocentric, individualistic, materialist, irreligious modern man seeking organized power.

4. John Locke (1632-1704): Natural Rights and Limited Government

John Locke, a precursor of English empiricism and political liberalism, provided a theoretical justification for resistance against the sovereign, particularly influential in the English Revolution.

• Epistemology: Knowledge derived from experience, rejecting Cartesian innate ideas.
• Critique of Filmer: Attacked Sir Robert Filmer's absolutist claim of divine right of kings, arguing Adam had no inherent authority transmissible to descendants. Government needs another genesis.
• State of Nature: Distinct from Hobbes's state of war. Locke's state of nature is one of "perfect freedom and equality," but governed by the law of reason (natural law). This law forbids self-destruction or harming others' life, health, liberty, or possessions. Freedom is constrained by duty to respect others.
• Natural Rights: More elaborate than Hobbes's. Includes the right to do as one pleases (within natural law limits) and the natural right to property.
  • Derived Rights: To secure primary natural rights, individuals have the right to punish violations of natural law and the right to reparation for damages.
  • Property: Earth is common, but mixing one's labor with natural resources makes them one's property ("labour theory of property"). This is valid as long as "enough and as good" is left for others and resources are not wasted. Monetization (gold and silver, non-perishable) allowed for "disproportionate and unequal possessions" without injustice, thus providing a justification for capitalism.
• Social Contract: Men leave the state of nature due to its "inconveniences"—lack of established law, impartial judge, and effective enforcement. The primary purpose of forming a commonwealth is the "preservation of their property" (life, liberty, and estates).
• Limited Mandate: Power is entrusted for specific purposes. Government must rule by established, published, known laws, administered by impartial judges, and enforce them for "peace, safety, and public good." The people retain supreme power to alter or remove the legislature if it acts contrary to this trust. This "right to revolution" is central to Locke's theory, making natural law a powerful tool for challenging positive law.
• Religious Dimension: Locke's thought is more religious than Hobbes's, seeing natural law as a "declaration of the will of God."

5. Declarations: Enshrining Natural Rights

The American and French Revolutions, deeply influenced by Locke's ideas, enshrined natural rights in foundational declarations.

• American Declaration of Independence (1776): Asserted 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." Governments derive their "just powers from the consent of the governed" to secure these rights, and people have the right to alter or abolish destructive governments.
  • Critique and Evolution: Despite its clear language, the declaration's promise of equality was difficult to realize in practice (e.g., Dred Scott v. Stanford ruling denying personhood to enslaved people). Abraham Lincoln viewed it as an ideal to strive for.
• French Declaration of the Rights of Man and the Citizen (1789): Declared "natural, unalienable and sacred rights of Man." Men are born "free and equal in rights." Political associations aim to conserve "natural and imprescriptible rights" (liberty, property, security, resistance to oppression). Law is "the expression of the general will" (Rousseau's influence).
  • Similarities with Locke: Centrality of individual, purpose of political power to guarantee rights, right of revolution.
  • Differences: Explicit mention of property (faithful to Locke). Reference to a "Supreme Being" (spiritual, not strictly religious). Strong influence of Rousseau's "general will."
• Constitution of the Fourth Republic (1946): Reaffirmed 1789 rights, extending them to "every human being," regardless of race or belief, and emphasizing gender equality. The shift from "natural, inalienable, and sacred" to "inalienable and sacred" rights reflected a temporary discrediting of natural law terminology post-WWII.

Interlude: The Problem of the Grudge Informer (Fuller)

This hypothetical case illustrates the dilemma of legal validity and morality in a post-tyrannical regime, highlighting the tension between legal positivism and natural law.

• Scenario: A fictional country under the totalitarian "Purple Shirt" regime, which, while preserving formal legal structures, ruled through terror, perverting justice, and using secret, retroactive laws. Grudge informers reported enemies for minor offenses, leading to severe sentences, often death.
• Overthrow and the Dilemma: After the regime's fall, the new Minister of Justice faces public demand to punish informers.
• Five Deputies' Recommendations:
  1. First Deputy (Legal Positivist): Argues that the Purple Shirt laws were the law of the land, however detestable. Punishing informers retroactively would mimic the regime's own disregard for law. Prioritizes legal certainty and consistency.
  2. Second Deputy (Extreme Natural Law / Anarchy): Believes law ceased to exist under the Purple Shirts. It was an "interregnum in the rule of law," a "war of all against all." Informers' acts were neither lawful nor unlawful. Advocates doing nothing, seeing the period as a lawless dream.
  3. Third Deputy (Discretionary Natural Law): Rejects "either-or" extremes. Acknowledges some normal legal life continued. Advocates selective intervention where Purple Shirt ideology "perverted the administration of justice." Focuses on clear cases of injustice (e.g., murder by informer), using existing criminal code.
  4. Fourth Deputy (Legislative Positivist): Rejects selective justice as "Purple Shirtism itself." Proposes a new, comprehensive, duly enacted statute to deal with grudge informers, with appropriate penalties, to ensure legality and avoid twisting old laws.
  5. Fifth Deputy (Skeptical Pragmatist/Revenge): Finds the fourth deputy's proposal ironic (ex post facto law). Questions the practicality of drafting such a statute and the proportionality of punishments. Suggests allowing popular instinct for revenge to "straighten itself out" directly, without legal intervention, accepting some disorder.

Part II: The Decline of Natural Law

The 19th century witnessed a significant decline in natural law theories, influenced by historical thought, scientific advancements, and the rise of legal positivism. Critics like Hume and Bentham played crucial roles in this shift.

Chapter 1. The First Criticisms

1. David Hume (1711-1776): Empiricism and Artificial Justice

Hume, a Scottish empiricist, challenged the rationalist foundations of natural law, arguing that morality and justice are rooted in sentiment and human artifice, not reason or external natural order.

• Empiricism: All knowledge derives from experience (sensations, ideas). Rejected innate ideas and the demonstrability of God's existence or external causality. Causality is a psychological belief from observed regularities, not a logical necessity.
• Origin of Morality: Morality is based on sentiments (pleasure/pain), not reason. Reason is "the slave of the passions." Virtuous actions produce pleasure, vicious ones uneasiness. This poses a direct threat to natural law theories that link morality to reason.
• Justice: An Artificial Virtue:
  • Justice is not natural but an "artifice" or "contrivance" arising from human circumstances and necessity.
  • No action is virtuous without a motive distinct from its morality. There is no universal, natural motive for observing justice.
  • The origin of justice and injustice is not derived from nature but from human education and conventions.
• Origin of Justice and Property:
  • Society is necessary for man's survival and flourishing, as nature has left him relatively disarmed.
  • Threats to society: human selfishness (limited altruism) and the instability/scarcity of possessions.
  • The remedy is an artifice: a convention to stabilize possessions and ensure peaceful enjoyment of property. This "agreement" (not a promise) arises from a mutual understanding of common interest.
  • Justice, property, right, and obligation arise concomitantly with this convention.
  • Self-interest is the original motive; sympathy with public interest becomes the source of moral approbation for justice, developed through education and political artifice.
  • If humans had abundant resources or universal altruism, justice would be unknown.
• Three Fundamental Laws of Nature:
  1. Stability of possession (including occupation, prescription, accession, succession).
  2. Transfer of property by consent.
  3. Performance of promises (essential for credit and future exchanges).
  These laws are "entirely artificial, and of human invention," making justice an artificial virtue.
• Origin of Government: Government arises from the need to remedy human weakness (tendency to prioritize immediate over remote interests) and enforce justice. Rulers, being less swayed by personal passions in disputes, ensure impartiality. Government is an "advantageous" invention, but not always necessary. Loyalty to government is an obligation arising from interest, reinforced by moral sentiment.
• Critique of Social Contract: Hume rejected the social contract theory as a "pure fiction" or "falsehood." There's no evidence of such a contract, and people are born into obedience, not consent. Implicit consent (e.g., residing in a state) is theoretical and unfair, as a poor peasant cannot easily leave. Obedience to government stems from the necessity for society to subsist, not from keeping promises.
• Hume's Guillotine (Is-Ought Problem): His most famous critique: "I cannot forbear adding... I always remark'd, that the author proceeds... from an is, and is not, I meet with no proposition that is not connected with an ought, or an ought not." It's logically impossible to deduce an "ought" (norm) from an "is" (fact). This became a cornerstone of positivist critiques of natural law.

2. Jeremy Bentham (1748-1832): Utilitarianism and Legal Positivism

Bentham, a leading English jurist, is considered the founder of utilitarianism and a precursor of legal positivism. He vehemently attacked natural law and the social contract, advocating for law based solely on utility and certainty.

• Utilitarianism: Humanity is governed by "two sovereign masters, pain and pleasure." The principle of utility approves or disapproves of actions based on their tendency to "augment or diminish the happiness of the party whose interest is in question." Ethical hedonism: pleasure/pain are the sole criteria for moral goodness. The legislator's goal is to maximize happiness, achieving "the greatest happiness of the greatest number." This led to reforms like advocating for universal suffrage, women's rights, and decriminalization of homosexuality.
• Common Law and Legal Certainty: Criticized Blackstone's common law for its lack of certainty and being "judge-made" (retroactive). Advocated for codified statutes to ensure clarity, coherence, and predictability, essential for security and preventing "pain of disappointed expectations." Law must be clear, published, and widely known to the populace.
• Natural Law and Positive Law:
  • Denied the existence of "natural rights" or rights "anterior to the establishment of government." Called natural rights "simple nonsense: natural and imprescriptible rights, rhetorical nonsense - nonsense upon stilts."
  • Only rights established and maintained for the advantage of society are valid. Rights should be abolished if they cease to be beneficial.
  • Law is solely "declaratory signs of a volition conceived or adopted by the sovereign of a state." This makes Bentham a pure legal positivist, explicitly denying natural law's existence.
• Social Contract: Dismissed as a "pure fiction" and "falsehood," useless and misleading about the true, violent origin of governments. Obedience is a matter of habit.
• Critique of Obedience: While emphasizing sovereign command, Bentham also championed transparency and public control of government through freedom of the press and a "court of public opinion."

Chapter 2. The Transition: Kant and Rousseau

Both Rousseau and Kant, while not direct critics of natural law, inadvertently facilitated the shift towards legal positivism through their emphasis on the social contract and new conceptualizations of law.

1. Jean-Jacques Rousseau (1712-1778): General Will and Moral Transformation

Rousseau, a complex Enlightenment figure, theorized a state of nature and a social contract that profoundly influenced the French Revolution.

• State of Nature and the Good Savage:
  • In Discours sur l'origine et les fondements de l'inégalité parmi les hommes, Rousseau lamented the difficulty of knowing natural man, asserting human knowledge moves away from primitive state.
  • He criticized Roman jurists for applying natural law to all animals and modern theorists for defining it in complex, metaphysical terms inaccessible to common man.
  • Natural man is a "savage" wandering in forests, without strong social bonds, industry, or language, driven by self-preservation and pity. Not inherently wicked, but also not good; amoral.
  • He criticized Hobbes for projecting civil man's passions onto natural man.
  • What distinguishes man from animals is free will and perfectibility, which also lead to his misfortunes (moral decay from reason's development).
• Entry into Society and Origin of Inequality:
  • Property is the root of civil society and inequality. The first to claim land as "mine" founded civil society, leading to crime, wars, and misery.
  • Society began as a means for the rich to protect their property, enslaving the weak and establishing laws that enshrined inequality.
  • Civil law became common, while natural law was relegated to inter-state relations.
• The Social Contract:
  • In Du contrat social, Rousseau presented a more positive view of the civil state. Man, initially a "stupid and narrow-minded animal" in nature, becomes "an intelligent being and a man" through the social contract.
  • Only self-preservation remains a natural law principle mentioned; pity is dropped. Morality and reason emerge in the civil state.
  • Universal justice comes from God and reason, but without natural sanction, it's vain. Conventions and laws are needed to unite rights and duties and give justice efficacy.
  • The social contract requires total alienation of individual rights to the community. By uniting, each obeys only himself because he becomes part of the sovereign nation, guided by the general will.
  • This leads to the omnipotence of the sovereign (the people), which cannot be bound by any fundamental law or even the social contract itself. Consent is in residence; dissenters are merely mistaken about the general will.
  • The commitment to the general will means "he will be forced to be free"—a paradoxical statement highlighting the potential for totalitarianism in his theory, despite his aim to preserve liberty.

2. Immanuel Kant (1724-1804): Duty, Freedom, and Provisional Law

Kant, a central figure of the Enlightenment, sought to found morality on the subject while preserving universal standards and freedom. His philosophy created a transition towards legal positivism by distinguishing law from morality and viewing natural law as provisional.

• Copernican Revolution: Placed the subject at the center of knowledge. Knowledge is shaped by a priori forms (space, time) and categories of understanding (causality), limiting knowledge to phenomena. This allowed for human freedom (noumena) without contradicting natural causality (phenomena).
• Law and Morality:
  • Morality: Governs the internal forum (will), based on categorical imperative ("Act in such a way that you can raise your maxim into a universal law"). Intention is moral only if universalizable.
  • Law: Governs the external forum (actions), controlling only external interactions of wills. Requires only conformity to law, not virtue. Definition of law: "the set of conditions by means of which the will of one can agree with that of another, according to a general law of freedom." Maxim of right: "Act outwardly in such a way that the free use of your will may accord with the freedom of each according to a general law."
  This clear differentiation paved the way for legal positivism, but Kant still recognized a normative core in law beyond positive law, tied to human dignity and coexistence.
• Natural Law and Society:
  • Distinguished natural law (a priori rational principles) from positive law (legislator's will). Natural law is "private law" (not publicly guaranteed); positive law is "public law" (civil law).
  • The one innate natural right is to exercise freedom in accordance with others' freedom under a universal law. In the state of nature, possession is provisional, legitimate ("jure") but not enforced ("de jure").
  • There's a "principle of private law" (natural law) that compels entry into a civil state for guaranteed, peremptory possession and "distributive justice." Natural law is thus provisional, incomplete, and perfected by positive law.
• Social Contract and Sovereign:
  • Individuals are members of the sovereign and subjects of the state, obeying laws as if they were obeying themselves (autonomy).
  • No right of resistance against the sovereign, joining Hobbes and Rousseau. Resistance destroys the civil constitution. Even if the state acts tyrannically, subjects cannot rebel; an original contract is a rational principle, not a historical fact.
  • Admitted the right to criticize the sovereign through "freedom of the pen," allowing citizens to make known injustices resulting from error or ignorance. This is the only legal way to resist.

Chapter 3. Legal Positivism

Legal positivism focuses on law as human-made rules, distinct from morality. It gained prominence in the 19th and 20th centuries, profoundly influencing legal theory.

1. John A. Austin (1790-1859): Command Theory

Austin, influenced by Bentham, provided an early, systematic theory of legal positivism, defining law as commands issued by a sovereign.

• Critique of Blackstone: Rejected the idea of judges merely "discovering" law; saw judge-made law as uncertain and inferior to codified statutes.
• Types of Law:
  1. Divine Laws: Set by God to humans.
  2. Positive Laws: Set by men to men, specifically by "political superiors" (sovereign) to "political inferiors." These are the proper matter of jurisprudence. The sovereign is generally obeyed and obeys no one.
  3. Positive Morality: Rules by opinion, some are commands, some are not (e.g., laws of honor). They lack clear author's intent or explicit sanction.
  4. Metaphorical/Figurative Laws: Weak analogy to proper laws (e.g., biological or physical laws). No identifiable author, not aimed at rational addressees.
  Divine and positive laws are "laws properly so called."
• Law as Command: A command is a desire from a rational being, expressed with a threat of punishment for non-compliance. Laws are general commands.
• Jurisprudence: The science of law is concerned solely with "positive laws" without regard to their goodness or badness ("The existence of law is one thing; its merit or demerit is another"). Confusion between law "as it is" and law "as it ought to be" (natural law/divine law) leads to error and anarchy.
• Natural Law: Acknowledged that "natural law" often refers to divine law, but found the term ambiguous. Rejected it as a subject of legal science. Criticized Grotius and Roman jurists for confusing positive law with morality or vague natural law.

2. Hans Kelsen (1881-1973): Pure Theory of Law

Kelsen, an Austrian jurist, developed the Pure Theory of Law, aiming to create a science of law free from value judgments, focused solely on "law as it is."

• Identity of Law and State: Argued that law and state are identical; only state law exists.
• Legal Norms: Valid not by content but by creation process, ultimately determined by a basic norm (Grundnorm). Any content can be law.
• Hierarchy of Norms: Law is a pyramid of norms, with each norm deriving validity from a higher one, up to the Grundnorm. A norm is the meaning of an act of will that prescribes, permits, or enables conduct (Sollen – ought). It acquires objective validity when empowered by a higher norm.
• Legal Positivism: Explicitly affirmed legal positivism: a positive legal order is any effective "order of constraint established by human acts," regardless of content. It seeks to know "real law and possible law," not "ideal or just law."
• Grundnorm and Natural Law:
  • Kelsen's Grundnorm is a "presupposed norm," a transcendental logical condition for the objective validity of positive law.
  • He distinguished it from natural law, which serves an "ethico-political function" as a value standard. Natural law theories, by asserting nature's commands as facts, commit Hume's error of deriving an "ought" from an "is."
  • Natural law theories fail because they lack clear, universally accepted content (e.g., conflicting views on property, democracy). Nature, as understood by science, has no will and cannot enact norms. Attributing will (commands) to nature requires a metaphysical (divine) assumption, which science cannot accept.

3. Herbert L.A. Hart (1907-1992): Concept of Law and Minimum Content

Hart, a British legal philosopher, refined legal positivism, distinguishing between different types of rules and identifying a "minimum content of natural law."

• Critique of Austin: Law is not merely commands; it includes structures that regulate coercion.
• Primary and Secondary Rules:
  • Primary Rules: Impose obligations (e.g., criminal law).
  • Secondary Rules: Rules about rules. Enable creation, modification, or identification of primary rules.
    • Rules of Recognition: Identify valid primary rules (by pedigree, authority, custom, judicial decisions). Their absence in elementary societies leads to uncertainty and static rules.
  • Open Texture of Law: Language's indeterminacy and future unforeseeability mean law has a core of certainty and a penumbra of doubt. Judges exercise discretion in "hard cases."
• Law and Morality: Hart is a legal positivist, defining it as "it is by no means necessarily true that the rules of law reflect or satisfy certain moral requirements." While morality influences law, a legal system doesn't need to conform to morality to be valid. Moral rules differ from legal ones by importance, immutability, voluntariness of wrongdoing, and social pressure.
• Minimum Content of Natural Law: Hart identified universal "truisms" about human nature and the world that explain common elements in law and morality, without metaphysical foundations:
  1. Human Vulnerability: Explains rules prohibiting bodily harm.
  2. Rough Equality: Leads to systems of reciprocal abstentions and compromises.
  3. Limited Altruism: Requires rules to manage human interaction.
  4. Limited Resources: Necessitates property rules and exchange mechanisms (promises).
  5. Limited Intelligence and Willpower: Requires sanctions to ensure compliance and protect those who voluntarily obey.
  This minimum content is a "core of common sense," not transcendent norms, but imposed by human nature.
• Broad vs. Narrow Concept of Law: Hart advocated a broad concept that includes immoral norms as valid law, as a narrow concept obscures the complexities of choice in dilemmas (e.g., grudge informers). A broad concept allows distinguishing legal validity from morality, highlighting the choices between evils. Retroactive punishment, for example, would be acknowledged as a departure from legality.

Part III: Natural Law Today, Criticisms and More Recent Theories

The decline of natural law in the 19th century stemmed from a focus on human reason, scientific progress, and historical contingency. Legal positivism, by focusing on law "as it is," relegated natural law to philosophy or theology. This final section examines the ongoing criticisms and contemporary theories of natural law.

Chapter 1. Natural Law is Not Law

The core positivist criticism is that natural law lacks the characteristics that define "law."

1. The Positivist Attack

• Difficult to Identify: Unlike positive law (identifiable author, formal source, date, content, official publication), natural law lacks clarity on its author, scope, and precise content, leading to legal uncertainty.
• Lack of Sanction: Positivists argue that effective law requires a sanction. Natural law, relying on divine or moral sanctions, is weak compared to positive law's enforcement mechanisms. Even Rousseau admitted natural law's ineffectiveness without sanction. Courts (e.g., Belgian Court of Cassation) generally do not recognize natural law as a basis for legal claims or review.
• Cannot Guarantee Social Peace: Positive law ensures social peace and public order. Natural law, especially modern theories emphasizing the state of nature, often describe a state of insecurity from which positive law is needed to escape. Even proponents like Augustine recognized the necessity of imperfect human laws for order.
• Shrinking/Outdated Domain: Historically, natural law filled gaps in international law or constitutional law. Positivists argue that these areas have become "positivised" (e.g., UN Charter, written constitutions, human rights conventions). Legal gaps are increasingly filled by general principles of law (which courts recognize), not natural law.

2. In Defense of Natural Law

Defenders of natural law offer counter-arguments:

• Identifiability: Not all positive law is perfectly identifiable (e.g., customs, general principles, case law). Positivist critique focuses too narrowly on formal sources, ignoring material sources (ethical, social foundations) and the dynamic interaction of "lived law" and "conceived law." Sometimes, positive law texts explicitly or implicitly reference natural law (e.g., a "right to regulate one's own funeral," "right of access of grandparents," "right of defence," "right of self-defense" in UN Charter, property rights in Irish Constitution, parental rights in German Constitution).
• Sanction: Not all positive laws have sanctions, yet remain law (e.g., judicial deadlines). Sanctions, while aiding effectiveness, are insufficient; legitimacy and voluntary adherence are crucial. Natural law's absence of direct sanction merely implies its need for positive law for enforcement, not its non-existence.
• Social Peace: The argument primarily targets modern natural law theories. It doesn't negate natural law's existence or usefulness, but highlights its need for positive law to establish social peace. Kant's idea of natural law needing completion by positive law supports this.
• Shrinking Domain: This is a "naivety" of positivists. The increase in positive law doesn't necessarily decrease natural law; rather, it can be seen as natural law's "shadow" extending, or its "victory" by being incorporated into positive law (e.g., general principles of law).

Chapter 2. Natural Law is Ambiguous

Natural law faces criticism for serving two seemingly incompatible functions: legitimizing and challenging positive law.

1. Legitimation Function

Historically, natural law often functioned to legitimize positive law. For Aristotle, conflict was not conceived. For Christian thinkers like Augustine and Aquinas, positive law was a necessary, albeit imperfect, concretization of natural law, adapted to human sinfulness or practical needs. Even in Hobbes and Grotius, natural law rarely served to directly challenge positive law.

2. Challenge Function

This function implies that natural law can challenge the validity or application of positive law. This is its "subversive capacity."

• Right of Resistance/Revolution: In its radical form, seen in Locke and the American/French Declarations, and echoed in the German Constitution, natural law provides a basis for justified resistance or revolution against tyrannical or rights-violating governments.
• Civil Disobedience: A less radical form of challenge, refusing to apply a law deemed contrary to a higher norm.
  • Definition: A public, non-violent, conscious, political act contrary to law, typically by a collective, to change law/policy, invoking higher principles, and accepting sanction (Rawls, Habermas).
  • Constitutive Traits (François Ost):
    1. Conscious, intentional violation of positive law.
    2. Publicly expressed.
    3. Collective movement.
    4. Peaceful means.
    5. Aim to change a norm.
    6. Invokes higher principles (e.g., rule of law, human rights, religious principles).
    7. Accepts risk of sanction.
  • Legitimacy: Presumption of legitimacy in democratic law. Civil disobedience can be legitimate when this presumption is rebutted, especially when institutions fail to address injustice.
    • Subsidiarity: All legal remedies must be exhausted first.
    • Proportionality: The injustice must be serious, and the act of disobedience proportional to the goal of changing the norm.

Chapter 3. Natural Law is Undemocratic

A significant criticism is that natural law is inherently undemocratic because its principles, by definition, exist independently of human will and thus escape democratic majorities.

• Argument: Natural law's inherent non-dependence on human will appears to bypass democratic decision-making processes.
• Qualification: A purely formal definition of democracy is insufficient. Democracy, according to Hugues Dumont and Mathias El Berhoumi, requires spaces for discussion and rules (fundamental rights and freedoms) that ensure collective autonomy and equality. If natural law is identified with these fundamental rights, it becomes indispensable to, rather than anti-democratic, within a substantive understanding of democracy. This highlights the complex relationship between democracy and the rule of law.

Chapter 4. Natural Law is Not Natural

This critique questions whether natural law is truly "natural," especially in its tendency to infer "ought" from "is" (the "naturalist argument").

• The Naturalist Argument: The idea that "what is natural is good" or "because something is, it must be." This risks confusing descriptive facts with prescriptive norms. Hume's guillotine highlighted the logical gap between "is" and "ought."
• Legal Normativity vs. Scientific Law: Kelsen sharply distinguished these: scientific law uses the principle of causality ("if A is, B is"), aiming to explain and predict. Legal normativity uses the principle of imputation ("if A is, B must be"), mobilizing a will to prescribe, prohibit, or authorize. Law's validity depends on the possibility of B not being realized.
• Belgian Court of Cassation Examples: Belgian judgments, despite being from a positivist system, sometimes implicitly appeal to "the nature of things" to justify legal norms (e.g., in solidum obligation, primacy of international treaty law, tax exemption for public domain property). This shows how even positive law can fall into naturalist reasoning to justify decisions.
• Objections to Naturalist Argument:
  1. Lack of Consensus on "Natural": History shows no universal agreement on what is natural (e.g., equality, slavery, private property, right of resistance). This variability undermines claims of an immutable "natural" content.
  2. "Is" Does Not Imply "Ought": There's no inherent requirement to consider what exists as what is desirable. Darwinian concepts (law of the strongest) are descriptive, not prescriptive for human society. Law, through fundamental rights and positive discrimination, often intentionally deviates from "nature."
• Rejoinder: Many natural law theorists do not derive norms directly from facts. Aristotle's teleology links nature to final cause. Aquinas's first principles are self-evident to reason. Saint-Germain's "law of reason" is "written in the heart." The American Declaration's self-evident truths. Thus, Hume's guillotine may not be fatal to all natural law theories; it challenges the jump from "is" to "ought" without justification, which many natural law traditions claim to provide through reason or self-evidence.

Chapter 5. What Natural Law? Contemporary Issues

Despite its perceived decline, natural law continues to evolve and inform contemporary legal and ethical debates.

1. A Neo-Thomistic Natural Law? John Finnis

John Finnis, a prominent neo-Thomist, revives and reinterprets classical natural law theory in a modern context.

• Critique of Positivist Misconceptions: Challenges positivist caricatures of natural law (e.g., Kelsen's claim that natural law links validity to moral justice, or Raz's assertion that all law has moral value).
• Basic Goods: Finnis posits seven self-evident, universal, equally valuable "basic goods" necessary for a flourishing life:
  1. Life: Including self-preservation, physical health, procreation.
  2. Knowledge: Desirable in itself.
  3. Play: Entertainment, recreation.
  4. Aesthetic Experience: Appreciation of beauty.
  5. Sociability (Friendship): Including minimal peaceful cohabitation.
  6. Religion: Concern for transcendent order.
  7. Practical Reason: Ability to make intelligent decisions for one's life, adhering to nine requirements (e.g., coherent life plan, general interest, no arbitrary favoring).
• Law and Authority: Human inclination to live together and pursue the common good (a requirement of practical reason) necessitates coordinating actions, requiring authority (e.g., government). Law, as an effective source of authority, is a morally necessary component of society.
• Moral Obligation to Obey Law: Legal obligation is binding in all circumstances. Moral obligation, however, depends on whether the law protects or threatens basic goods. Disobedience is morally justified only if it doesn't undermine the entire legal system. These principles constitute the "first principles of natural law."

2. A Procedural Natural Law? Lon Fuller

Lon Fuller, an American legal theorist, offered a procedural natural law focused on the "internal morality of law" rather than substantive moral content.

• Critique of Is/Ought Dichotomy: Argued that the distinction between "is" and "ought" cannot apply to intentional human activities like law. An intention or purpose is both a fact and a normative criterion for judging facts.
• Substantive Natural Law (Communication): If forced to identify a central principle of "substantive natural law," Fuller would point to the injunction to "Open up, maintain, and preserve the integrity of the channels of communication by which men convey to one another what they perceive, feel, and desire." This is essential for human survival and enrichment.
• Internal Morality of Law (Eight Principles of Legality): Fuller's major contribution. He imagined a king, Rex, failing to create a legal system by violating these principles. For law to function and be effective, it must conform to these eight procedural requirements:
  1. Generality: Laws must be general rules.
  2. Promulgation: Laws must be published and known.
  3. Non-Retroactivity: Laws should generally not be retroactive.
  4. Clarity: Laws must be understandable.
  5. Non-Contradiction: Laws must not contradict each other.
  6. Possibility of Compliance: Laws must not demand the impossible.
  7. Constancy: Laws should be relatively stable over time.
  8. Congruence: Official action must be congruent with declared rules.
  These are "natural laws of carpentry," terrestrial in origin, ideals to strive for. A total failure of any one principle means no legal system exists. This "procedural natural law" acts as a check against arbitrary power, emphasizing the collaborative enterprise between government and citizens.

3. Some Contemporary Issues

Natural law concepts remain relevant for addressing modern challenges and emerging legal questions.

• Ecological Movement: The recognition of legal personality (and subjective rights) for animals, plants, or rivers reflects a "right of nature," moving beyond anthropocentric natural law. Michel Serres's The Natural Contract proposes a symbiotic relationship with nature, where humans assume responsibility, suggesting a "duty of symbiosis."
• Digital Explosion: The digital world, with its statistically objective correlations, presents a new form of "natural justice." Antoine Garapon and Jean Lassègue suggest that digital data and algorithms can impose norms, acting as a "new natural law internal to the world."

Conclusion

Natural law, despite its historical fluctuations and criticisms, remains a vital concept. It invites continuous questioning of positive law's purpose and limits. It serves as a "watchdog" or the "bad conscience" of positive law, ensuring critical evaluation rather than automatic legitimization or systematic contestation.

Complex legal and ethical dilemmas, such as "wrongful life actions" (e.g., French and Belgian Court of Cassation judgments), demonstrate that judges often must engage with considerations external to strict positive law. Natural law's function is to keep legal and ethical senses alert, providing a necessary framework for discussion and critical reflection on the law.