Natural Law (jurisprudence)

By Jaba Shadrack, UDSM - 2008

"The problem with employing natural law theories is that they can denounce legal heresies in the same way as medicine denounced medical heresies. This confirms the tendency towards being conservative or even reactionary. If we had adhered to the Greek concept of natural law we would probably still retain slaves. Moreover, most moral reform in law have stemmed from individuals acting against the contemporary societal mores" (Anonymous). Discuss this statement.

........................................................

Natural law, in jurisprudence and political philosophy is referred to as a system of rights or justice common to all human kind and derived from nature rather than that from the rules of society or positive law.

According to natural law proponents, evidently Cicero, a true law is a right reason in agreement with nature and of universal application, unchanging and everlasting. On the other hand, positivist jurists especially Hart contends that natural laws are mere rules of morality.

Generally speaking, legal theories works like a bicycle chain i.e they are inter dependant, the learned editor Dr. Doherty. M argues inter alia that natural law seeks to find coherent theory that will check upon an unjust legal system that lacks moral justification; the view that matches squarely with those of Sir Lauterpacht who asserts that it is in the light of natural law that positive law must be interpreted and, if need be, supplemented and corrected. Thus, it is in the light of aforesaid views of the two this essay will dwell in extenso by taking into consideration dynamism, conservatism and reactionary element of natural law theories in various historical eras.

I subscribe to the view that natural law theories in some way are both conservative, and reactionary. Finch, J.D, contends, mutatis mutandis, that it [natural law] can be employed as the vehicle of reform (or even of revolution) or of reaction; it can be used or abused, therefore, in the line of that view it is undisputable truth that natural law theories are dynamic (flexible) and have been employed by individuals from different historical epoch to address, justify or challenge the existing status quo, or societal mores.

Ancient Greek and Roman philosophers contends that natural laws are unchangeable (static) rules, this is contradicted by our understanding of evolution therefore, contemporary practice holds contrary views, and that natural laws must be accompanied with dynamism element as to the dictates of time and societal needs. This approach is justifiable by appraising the historical trends from Classical naturalists (ancient era) to Neo-Kantian naturalists in relation to other jurisprudential schools of thoughts especially, Legal positivism as follows.

In early ages, the conception of the laws of nature revolved around the existing social strata, this is exemplified by proportions of ancient Greek philosophers who centred their ideas to justify the mode of production that was prevailing in their societies (slavery and feudalism). For instance, Plato categorically divided his society into three classes namely as, men of gold (rulers), men of silver (soldiers), and bronze (producing classes). Again, Aristotle who came from the ruling class advocated much on the preservation of peace and the existing classes by observing laws. This conservatism tendency of natural law theories was also evident in Feudal English legal system whereas, the common law was too rigid (conservative) for example it did not recognise principles such as right to set-off, counter-claim, beneficial interest, and tort of negligence, to mention just a few. Moreover, women were discriminated and oppressed in all spheres of life by using natural law theories in justifying such social set up, besides at this historical epoch it was natural for a king (and queen) to be above the law.

However, these conservatism elements shown does not in themselves vitiate the essence of natural law theories, because even during the 18th century and afterwards where legal positivism was at its apex, the same social injustices were evident whereas holding of colonies were justified by positive laws as previously possession of slaves and serfs were justified by natural laws. Additionally, in medieval England, equity laws were administered according to the best conscience of the chancellors founded on the fundamental precepts of prevailing morality, also the common law courts convicted people on the ground that the moral feelings of the community had been outraged by such act.

In 15th to 16th centuries, the natural law theories shifted their attention from national law and promulgated the concept of international law, this is evident among the rationalist school of natural law pioneered by Hugo Grotius whose formulation of principles such as jus gentium, and pacta sunt servanda emerged at a time where intercourse between states through commerce (mercantilism) was emerging thus, his theories came to justify and regulate the social set up, therefore, the element of 'universality' under naturalist theories became self-evident as international law was emerging.

Around 17th and 18th centuries natural law was conceived as an instrument for prevention of autocracy and despotism, this is exemplified by constant political revolutions and nationalism in Europe and America, for example, in America, natural law theory was an important influence on the founders of American government, as evidenced by the principles of the U.S Declaration of Independence which refers briefly on laws of nature citing 'equality and other alienable rights as self-evident". John Locke and other scholars' philosophies of naturalism became a tool of the Glorious revolution, and lied down Bill of rights in England. Moreover, Montesquieu theories of social contract, liberty and separation of power fuelled much the French revolution, and afterward putting in place of The French Declaration of the rights of man and of the citizen, which asserts liberty, property, security, and resistance to oppressions as 'imprescriptible natural rights'.

Again, from the late 18th century natural law theory was a weapon in the battle over government powers to control and regulate economic affairs; defenders of Laissez-faire theory of capitalism some time invoked natural right theories.

In the second half of 18th to the late 19th century natural law theories declined dramatically, partly as a result of sceptical attacks by Geremy Bentham and later John Austin thus, legal positivism and utilitarianism became dominant legal philosophies of the time. However, towards the end of 19th century due to the rise of totalitarian regimes in Europe as Fascism and Nazism which culminated into World War II and led to high inequalities in societies, thus pure positivism failed to solve problems created by new social conditions therefore; this accelerated the revival of natural law theories (i.e. natural law with a variable content).

The revival of natural law thinking was evident in many international legal instruments, and in many countries legal frame work afterwards as follows;

The end of World War II, and the establishment of United Nations (organisation), principles of natural rights (law) were incorporated in the U.N's Charter in 1945 especially 'peace and dignity' on its preamble, also article 38 of the statute of international court of justice cite principles of general application as source of international law; besides, the Universal Declaration of Human Rights (UDHR), 1948 to a large extent incorporates inalienable natural rights.

On municipal level, especially in England and other Commonwealth countries, principles of natural law (justice), are in some instances invoked to test the legality of administrative acts [Anisminic V. Foreign compensation commission and another], decisions of courts of law, recognition of foreign judgements and custom. Other rules emanated from natural law ideas are such as the test of reasonableness, quasi-contracts, privacy against undue encroachment, unjust enrichment (Lord Manifield's formulation), and protection against nationalisation of properties; in the case of Oppenheimer V. Cattermole and cooper (inspector of taxes) Lord Cross held inter alia that " legislation which take away without compensation from a section of the citizen body singled out racial ground all their property.....a law of this sort constitutes so grave an infringement of human right that the court of this country ought to refuse to recognise it as law at all ", subsequently, Lord Morris in Wiseman and another V. Borneman and another, observed that ".....natural justice; it has been said is only 'fair play in action' nor do we wait for direction from the parliament ". In U.S.A, the Supreme Court in the case of Marbury V. Madison (1803) asserted its right to declare any law or action unconstitutional in the light of natural rights embodied in the constitution, this practice is still been followed in U.S courts consistently.

Around 1945-1960s the anti-colonial sentiments in the third world nations by chanting slogans like 'freedom and liberty', 'right to self-determination', 'equality and dignity', et cetera revolved around natural law theories propounded by rationalist scholars. Moreover, currently most of these countries have Bills of rights in their constitutions, essentially, enumerating natural inalienable rights.

Conclusively, it is obvious that most of moral reforms in law arise out of individuals struggling against the existing societal practices for example philosophers , either by the use of prevalent norms or theories or by employing new one, but, not in the way Ross's put it that "like harlot, natural law is at the disposal of every one..." , this is due to the fact that, the purpose of any theory of law is to act as a tool of the ruling class to undermine the ruled, and affirm or fight against any unfavourable practices; this is the case even in legal positivism. All in all, any legal theory is based on justice as perceived at the material time, and aims at the realisation of the common good, and it consists of mainly two components namely as natural and positive law theories. Both elements are indispensable for whereas natural law provides the foundation, positive law supplies the form of the law. Therefore, natural law constitutes the normative basis of positive law, as Doherty, M asserts that "natural law reminds us that law is a social endeavour rather than a static fact", thus in my submission, law and morality overlaps in certain occasions.