Within the history of civilization, the natural law is perhaps one of the oldest concepts of human morals and behavior. The western idea of natural law is based on the expression of the natural laws in ancient Roman and Greek literature1. The ideas of nature and law developed by various philosophers like John Locke, Grotius, Hobbes and Thomas Aquinas have a profound impact on the development of the natural law and natural law theory. However, the classical definition of the natural law transcends a wide range of ideas developed over time.It is called “natural” because of two major elements.
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First, it is worth noting that natural law, unlike customary and statutory laws, disregards the use of institutions and customs within a given society2. This means that none of the members of the natural laws can be derived from these sources.
Secondly, it is worth noting that natural law is not supernatural because it is not given by any divine power and does not require divine powers or interventions for interpretation3. However, the natural law is attractive because it is independent from divinity. In addition, it is freely accessible. Since modern law relies heavily on legal institutions and practices, it is difficult to apply the natural law theory in practice. Secondly, it lacks ground because humans cannot change it but can rely on it. Thus, it lacks metaphysical basis. Moreover, it has been argued that the natural law theory is inapplicable in the modern context because moral standards should not be ascertained by human reasoning. It is also difficult to acquire knowledge of what is considered“wrong” or “right”, which means that the natural law does not have anepistemological basis.
Thus, the purpose of this paper is to develop a critical view of the natural law and the natural law theory. Based on these discrepancies, this paper argues that the natural law theory lacks both epistemological and metaphysical basis, which makes it outdated and no longer has a place in the contemporary legal practice, despite its attractiveness due to accessibility and independence.
The concept of the natural law theory
The Dutch philosopher Grotius was the first person to separate natural law from religious attachment. Therefore, he is considered the father of the theory of natural law4. The western civilization derives much of its grounds from the natural law theory that Grotius developed. In turn, Grotius borrows heavily from the ideas of Aquinas. Both philosophers agree thathumans were created together with their natural inclinations5. Human have many emotions.
Nevertheless, all human emotions are derived from only two natural inclinations- the society and the survival. In this case, Aquinas and Grotius agree that human’s desire is to remain alive and to live together with other people, which make the core of human nature.However, Grotius argues differently because he says that a third element of this nature is the human mind. He argues that humans can follow one of the three elements, which he calls “motivators of human life”. According to this concept, humans have the freedom to follow one of the three elements that define their natural inclinations. They may also follow the emotions linked to their natural desire to live with other people in the same society. A person may also follow the third element- the human mind. Grotius argues that out of the three elements, the third element is the most important in the natural law theory.
The human mind has the potential to identify the actions needed to achieve at least one of the two natural emotional inclinations with little or no effect on the other6. The modern natural law theory is derived from this notion because the actions from the human mind make up the natural law. An important point in the natural law theory developed by Grotius is his ability to separate law from God or religious attachment, which is different from the ideas of Aquinas7. According to the concept of natural law developed by Grotius, the intention of God in making the natural law was not to allow people use their nature to identify the laws that God determines. Instead, God wanted humans to look around their nature and determine the appropriate law for use.
Why the natural law does not have place in the contemporary legal practice: Problems associated with natural law theory
Since Grotius first definition of the natural law theory, many western scholars and philosophers embarked on developing natural law definitions in order to fit the prevailing practical needs. In doing so, a wide range of literature emerged, which also attempted to increase the critical views of the natural law. In the modern context, a number of flaws have been identified in the natural law theory. As the number of studies on the natural law increased in the last few centuries, the number of flaws identified in the theory increased significantly. In addition, the tendencies towards the use of laws that rely on manmade institutions and customs as well as the dependency of the law on human interpretations, which yielded the western culture of the common and statutory laws, have made it difficult to apply natural law.
In addition, the differing opinions on the concept of right and wrong have made it difficult to develop a standard approach or universal code for the application of the natural law in legal practice8. Therefore, the main issue is to show ‘how’ and ‘why’ these observations make it difficult for the natural law theory to have aplace in the modern legal practice.
First, the natural law services no useful purpose in the modern context because it is an ineffective protection. Rollin’s work attempts to criticize the theory of natural law proposed by John Locke. According to John Locke, there is a natural law that states that killing is not right and should not be done9. However, Rollins says that this law cannot protect people from the act of murder. In addition, Locke states that a natural right to life will not protect a man from the bullet of an assassin or the blade of a mugger’s knife10. In his work “Labour Theory of Property”, John Locke states it is a natural right for every individual to own and retain property. However, Rollins says that this right cannot be as useful as erecting high walls on the property or fixing sturdy locks to prevent wrongful entry.
According to John Locker, humans have a natural way of knowing and distinguishing rights from wrongs and what is lawful and what is not11. Men can tell the difference between what belongs to them and what does not. However, Hobbes argues otherwise. According to Hobbes, man’s objective to solve disputes is very weak. He says that in nature, people cannot tell what belongs to them and what is not theirs12.
In his “The myth of natural Rights”, Rollins questions the need for natural law if it cannot protect the rights it advocates13. According to Rollins, the natural law was “natural” when the Second World War was in progress. Nevertheless, it did not prohibit the Nazis from executing the Jews. He says, “How many Jews did the natural laws protect from the Holocaust genocide”…of course, the answer is zero…” Rollins continues to argue that “…if all the Jews living in the European regions occupied by the Nazi had the natural right to property and life, why was the Nazi regime able to execute more than six million Jews?”14
According to him, this is a clear indication that the natural rights developed under the natural law theory have no value as devices for protecting humans. He continues to say that a bullet proof has always protected individuals from bullets, yet the natural rights have never and will not protect humans from the evils of murderers, assassins and other evil doers. Thus, this argument tends to state that natural rights are not the appropriate or the real rights because they lack metaphorical grounds15. Real rights are developed and enforced through customary or institutional laws. According to this argument, it is clear that there are no real rights without proper conferment and enforcement16.
This implies that statutory and customary laws are the only applicable set of laws because they allow humans to develop laws according to the prevailing conditions. In addition, they allow humans to interpret laws according to the understanding of the prevailing conditions. Moreover, it is worth noting that customary and statutory laws do not just state whether an action is morally right or wrong, but also seek to protect humans from the violation of their rights. Therefore, a customary or statutory law against murder ensures that humans are protected from killers and murders because it requires enforcement through incarceration. With natural law, it is not possible to separate wrong doers from the other people. It exposes people to subsequent violation of natural rights. Thus, it is not applicable in the modern context.
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Secondly, natural law has no place in the contemporary legal practice because it is a tool prone to manipulation. Natural rights theory is primarily a view that some a right is some metaphysical entity that resides in man, which makes them difficult for people to believe in the entity.17. In addition, it is morally obligatory for other people to treat the person “A” in manner “Y”.For a person to be treated in a given manner in the society there must be a right for him that demands other people to treat that person in that way. This means that that there are existing moral obligations as well as permissions. However, morality is a device used to control what people should do or ought to do. Since natural rights exist because there is a morality for a person to act or behave or treat another person in a given manner, morality can be controlled and manipulated18. In turn, this means that moral laws can be manipulated, making it difficult to apply and use them in the contemporary legal practice.
Thirdly, finding the epistemological basis of natural law has proved to be a relatively difficult task. Scholars have developed an objection to the use and application of the natural law theory based on the finding that its epistemological basis does not exist. They argue that even if there were natural laws, they would be “unknowable” to humans. To show the evidence of this finding, scholars have shown that the natural law theory is not open to empirical testing19. It lacks scientific basis, which means that it is not possible to accept it as a natural phenomenon20. According to Wilson, natural law is not subject to experimentation and both experiment and experimental refutation are not relevant to natural law theory.
The fourth weakness that makes natural law obsolete and inapplicable in the contemporary legal practice is the emergence of evolutionary explanations and objects of nature. Evolutionary explanation, a scientific method for examining the origin and occurrence of existence of natural things, has been used to describe how things occur and take place. It does this by simply looking at the existing inclinations of creation. While proponents argue that this nature is common to all humans. It assumes that the creator of mankind and natural law ensured that man existed to satisfy some aspects of his inclination.
However, this assertion lacks proof, especially if there is no revelation. The contemporary law does not need revelation but requires empirical testing. Therefore it is clear that the natural law, based on this assumption, is obsolete. In absence of revelation, it is impossible to find any proof to support this hypothesis. Scholars have shown that this assumption is speculative rather than factual or scientific. Some scholars have also argued that if this assumption is true, then it is clear that the creator created some inclinations but wants humans to avoid satisfying some of them. These inclinations, which the creator wants man to abstain from satisfying, are the natural inclinations that man wants to satisfy but are likely to cause harm.
In other words, these inclinations amount to wrongful acts. The implication is that natural law lacks the capacity to convince the human mind to take or not take an action because it lacks rational hypothesis. Thus, natural theory should only be a belief similar to other common beliefs in religion or myths.
This analysis shows that natural law theory is a hypothesis that lacks both epistemological and metaphysical grounds. In addition, natural law theory is not subject to scientific testing. If a hypothesis does not object to empirical testing, it becomes impossible to determine whether it holds true. In addition, natural law does not prevent humans from taking actions that harm others21. It also fails to prevent violation of the natural rights that is expresses. Unlike the customary and statutory laws, natural law does not allow humans to interpret and change interpretations. Since natural law does not meet these standards, it is obsolete and has no place in the contemporary legal practices. Thus, the natural law theory lacks both epistemological and metaphysical basis, which makes it outdated. It no longer has a place in the contemporary legal practice, despite its attractiveness due to free accessibility and independence.
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Burns, Tony,‘Aquinas’s Two Doctrines of Natural Law’ (2009), 48 Political Studies 3. Web.
Goyette, John, Mark Latkovic and Richard Myers, St. Thomas Aquinas and the Natural Law Tradition: Contemporary Perspectives (CUA Press, 2010). Web.
Haakonssen, Knud,Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge University Press, 2006). Web.
Laing, Jacquelineand Russell Wilcox, The Natural Law Reader (Wiley Blackwell, 2013). Web.
Rommen, Heinrich,The Natural Law: A Study in Legal and Social History and Philosophy (Herder Book Co, 2007). Web.
Wacks, Raymon, Understanding jurisprudence: Introduction to legal theory (Oxford University Press, 2009). Web.
Wilson, Jamesand Robert Green McCloskey, The Works of James Wilson (Harvard University Press, 2008). Web.
1 Heinrich Rommen, The Natural Law: A Study in Legal and Social History and Philosophy (Herder Book Co, 2007). 342.
2 Craig Boyd Shared Morality: A Narrative Defense of Natural Law Ethics (Baker Books, 2007), 56.
3 Jacqueline Laing and Russell Wilcox, The Natural Law Reader (Wiley Blackwell, 2013)., 46.
4 KnudHaakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge University Press, 2006), 36.
5 JohnGoyette, Mark Latkovic and Richard Myers, St. Thomas Aquinas and the Natural Law Tradition: Contemporary Perspectives (CUA Press, 2010), 67.
7 Tony Burns, ‘Aquinas’s Two Doctrines of Natural Law’ (2009), 48 Political Studies 3, 78.
9 James Wilson and Robert Green McCloskey, The Works of James Wilson (Harvard University Press, 2008), 91.
10 Wacks, Raymon, Understanding jurisprudence, introduction to legal theory (Oxford University Press, 2009) 43.