Natural Law

LAW MANTRATHINK BEYOND OTHERS
(National Monthly Journal, I.S.S.N 2321 6417)

NATURAL LAW

Introduction
From a purely factual standpoint the history of the natural law idea teaches one thing with
the utmost clearness: the natural law is an imperishable possession of the human mind. In no
period has it wholly died out
1
Heinrich A Rommen (1955, 215)
The concept what is natural law has been revealing around for centuries provoking so many
different answers. It has had very different meanings and has sometimes treated entirely
different purposes. D Entreves states, many of the ambiguities of the concept of natural law
must be ascribed to the ambiguities of the concept of nature that underlies it.
2
Evolution and
development of natural law theory may be studied under four categories. They are, the ancient
period, medieval period, period of Renaissance and the Modern period. This article will focus
on how the natural law has been the chief albeit not the only way to formulate ideals and
aspirations of various peoples and generations with reference to the principal moving forces of
the time
3
by referring to the influence of natural law in its historical and contemporary
context.
Ancient period, the idea of natural law was developed by Greek philosophers around 4
th

century B.C. The first Greek philosopher who pointed out that destiny, order and reason were
the three features of law of nature were stated by Heraclitus.
4
His idea was that there is a
necessary indeed between things and a definite order and rhythm of events. The next who is

1
Suri Ratnapala, Jurisprudence, Cambridge University Press, 2009, pp 119
2
M.D.A. Freeman, Lloyds Introduction to Jurisprudence, Eighth edition, Sweet and Maxwell, 2008, pp 84
3
Assignment Question
4
530-470 BC

identical is Socrates
5
who gained an important place among stoic philosophers. As his
observation, just like natural physical law, there is natural moral law. It is because of the
human insight that a man has the capacity to distinguish between good and bad and he is able
to appreciate the moral values.
6
Next important person in the line of natural law development
is Aristotle
7
, because he was able to interpret in more logical way the concept of natural law.
He gave his interpretation to natural law as reason unaffected by desires.
8
He suggested that
ideals of natural law has derived from the human conscience and not from human mind, he
stated because of that natural law is more important than the positive law which is an outcome
of the human kind. Aristotelian teleology teaches that all things have a potential for
development specific to their nature, the achievement of which is its particular good.
9
The
important factor is that Aristotle who was the pupil of Plato
10
in contrast of him, taught that
human beings have an inherent potential for good, the achievement of which it is the proper
function of the state to facilitate.
11
It will also give an important idea about the Greek natural
law philosophy by referring to the observations that Roscoe Pound has made.
12
The
interpretation or the theory given by Stoic had a great impact on the contemporary Roman
Legal System.
13
Romans did not narrow their observation on natural law theory only to a

5
470-399 BC
6
Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 87
7
384-322 BC
8
Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 87; it
embodies the basic principles of justice and morality which have universal validity independent of time and place.
He says that man is a part of nature in two ways, firstly he is a creation of God and secondly, he possesses insight
and reason which enable him to articulate his actions. But he did not categorically state that the positive law which
is contrary to principles of natural law is invalid. He said, so far its relation with positive law is concerned,
natural law is originally different but once the positive law has been laid down, it is not different.
9
Hilaire McCoubrey; Nigel D. White, Text book on Jurisprudence, Blackstone Press Limited, 1996, pp 67; Thus
the good of an acorn, anything which is a hindrance thereto is bad for it. The case of humankind is, of course,
more complex, primarily by reason of the attribute of rationality which confers powers of choice which may be
exercised for good or ill.
10
C. 427-347 BC
11
Hilaire McCoubrey; Nigel D. White, Text book on Jurisprudence, Blackstone Press Limited, 1996, pp 67
12
Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 88;
(1) it was the result of the views and ideas expressed by thinkers, philosophers and orators and not of jurists or
lawyers. (2) It was influenced by politically declared laws and tribal customwhich was not differentiated in social
order of those times. (3) Enacted laws were in fact the declared customs the validity of which was not affected by
their indifference to natural law principles. (4) There was a growing consciousness that law was a product of
wisdomand reason which is conferred validity.
13
According to them, the entire universe is governed by reason. Mans reason is a part of the universal reason.

theoretical discussion but they used it in transforming their narrow and rigid system into a
cosmopolitan one.
14
There were some jurists who believed in that Natural Law is superior and
higher than positive law and suggested that if there is a conflict of both the positive law may be
disregarded. But in general Roman lawyers did not bother with the conflict of natural law and
positive law.
15

The next period from 12
th
century to mid 14
th
century is known as Medieval age in the
European history.
16
In this period people believed that law is the greatest binding force both for
those who govern and governed, the thought that institutions of slavery present the evil desires
because they are not the creation of law, they believed in two facets.
17
The important
personality in this period is Thomas Aquinas
18
who had similar views about society as
Aristotle. He defined law as an ordinance of reason for the common good made by him who
has the care of the community and promulgated.
19
His idea was that positive law is valid only

Therefore, when he lives according to reason, he lives according to nature or lives naturally. It is the moral duty
of man to subject himself to the laws of nature. The laws of nature are universal application and binding on all
men..
14
Roma law was divided into three distinct divisions, namely, jus civile, jus gentium, jus naturale. The civil law
called jus civile was applicable only to Roma citizens and the law which governed Roman citizens as well as the
foreigners was known as the jus gentium. It consisted of the universal legal principles which conformed to natural
law or law of reason. Later both of these were merged to be known as jus naturale as Roman citizenship was
extended to everyone except a few categories of persons.
15
Cicero was a great Roma lawyer. According to his legal philosophy, which is contained in his famous work De
Legibus, true law is right reason in agreement with nature; it is of universal application unchanging and
everlasting .and there would not be different laws at Rome and at Athens, but one eternal and unchangeable law
which will be valid for all nations at all times.
16
Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 89; It
was dominated by the ecclesiastical doctrines which the Christian Fathers propagated for establishing the
superiority of Church over the state. They used natural law theory for propagating Christianity and for
establishing a new legal order and political ideology based on morals and theology. According to Christian Saints,
all laws are either human or divine. Divine laws are based on nature while human laws are based on custom.
17
worldly and Godly. They are radically different fromone another and there arises no question of conflict or
clash between them.
18
Hilaire McCoubrey; Nigel D. White, Text book on Jurisprudence, Blackstone Press Limited, 1996, pp 72;
Although in his great work, the Summa Theologica, St Thomas Aquinas (1225-74) refers to St Augustine with
great respect, the analysis of positive law which is adavanced in it difers dramatically from the Augustinian
model. The impact on Aquinas of the works of Aristotle which had been rediscovered by the 13
th
century is
obvious. Like Aristotle, and unlike St Augustine, Aquinas considered that positive law plays a proper and
natural part in the political and social life of human beings, which is not constrained or defined by a sole concern
with sin.
19

up to the limit where it is compatible with natural law, thus conforming to eternal law.
20
The
development in this period has impact in the contemporary world, with the Homosexuality
debate. The centrality of Aquinas natural law theory of morality is that each kind of thing or
species has its own characteristic way of life and way of behaving that is part of its inherent
nature.
21
Therefore it shows the connection of natural law together with morality even in the
modern days how it exists and how the evolution of natural law has helped to think on those
matters in deep and not by surface. Another important debate which derived to discuss in the
modern world is right to life argument together with abortion. The idea of natural law has been
the base level for those discussions, because according to St. Thomas Aquinas in the Summa
(Q. 94, 1a2ae), is the first specific precept of natural law is that the natural law related to the
life principle and relates to the tendency of all beings to remain in existence.
22

The period of Renaissance is the time period where the natural law started to develop and
therefore which is also named as the modern classical era. Natural law theories which were
spelled out by Grotius, Locke and Rousseau revolutionized the already existing concept and

20
Ibid He divided law into four categories; (i) law of God (ii) Natural Law, which is revealed through the reason
of man (iii) Law of scriptures or Divine Law (iv) Human Laws.
- Natural Law is a part of divine law. It is that part reveals itself in natural reason. This part is applied by
human beings to govern their affairs and relations. This human law or positive law therefore must
remain within the limits of that of which it is a part. Positive law is valid only to the extent to which it is
compatible with natural law and thus, inconformity with eternal law. According to him, Church is the
authoritative interpreter of the law in scriptures. Therefore, it has the authority to give verdict upon the
goodness of positive law also.
21
Lanre-AbassBolatito, The Natural Law Theory of Morality and the Homosexuality Debate in African Culture,
pp 04,
http://www.google.lk/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ved=0CC0QFjAA&url=http%3A
%2F%2Fwww.ajol.info%2Findex.php%2Fog%2Farticle%2Fdownload%2F84685%2F74673&ei=J ykZUcjQOs7N
rQenq4GwAw&usg=AFQjCNE_BviWskXCrxd5gCVF0bYvR65E1Q&sig2=tjzBgEkyMYckGrxTBrsteQ ,
accessed on 10.02.2013
22
Howard Kainz, Natural Law and Abortion, January 06
th
2010, http://www.crisismagazine.com/2010/natural-
law-and-abortion ; accessed on 11.02.2013; . As applied to humans, it is the law of self-preservation for each
individual the instinctive tendency we all have to nurture our existence and maintain it at all costs, unless some
supervening rationale demotes this tendency to secondary importance. The corollary duty for us who observe this
law operative in some other individual is to respect that tendency, and do nothing to impede it, as long as that
individual does not forfeit his rights in some way (e.g., by unjust, lethal aggression). Aquinas then goes on to
enunciate the second specific precept of the natural law, common to humans as well as other animals namely,
to nurture and make provision for their offspring. As applied to humans, who require immensely longer care and
education than other animals, the requirements are proportionally more stringent. This law is associated with the
instinctive desire of persons to have offspring and their willingness to invest immense energy in childrens
upbringing and well-being even to the point of personal sacrifice, and even to sacrifice of life.

held that social contract was the basis of society. Hugo Grotius
23
built his legal concept on
social contract
24
. In his view it is the duty of sovereign to safeguard the citizens because it
was given power only for that purpose.
25
Grotius who mainly concentrated on the political
orders stability laid the foundations of international law too. There are many incidents that
have derived from international law concepts which have highlighted the importance of
torture
26
, fundamental rights of citizens
27
and even applicability of international law when the
domestic law is silent
28
. All those exists today in the modern world is due to the development
of international law which arisen from Natural Law is significant and valuable at the same
time. The impact to the modern world developments which derived from the concept social
contract has been immense, because concepts such as separation of power, parliament
sovereignty, limited powers and democracy concepts basis was this social contract theory.
Grotius also mentioned few principles which he took away from the social contract theory.
29

Hobbes
30
too continues from social contract theory. He laid his theory on natural right of self-

23
1583-1645
24
M.D.A. Freeman, Lloyds Introduction to Jurisprudence, Eighth edition, Sweet and Maxwell, 2008, pp 105;
The social contract is a wholly formal and analytical construct that can be used as a means of presenting
conflicting political ideals. In Hobbes it is used in defence of absolutism: in Locke in support of limited
constitutionalism. Though explicitly rejected by Hume and Bentham, many liberal theorists continue to emphasis
it either in terms of consent theory or, as in Rawlss theory of justice, as something close to traditional notions of
social contract.
25
The sovereign is bound by natural law. The law of nature is discoverable by mans reason and this reason is self-
supporting reason of man. When the question arises should the Ruler be disobeyed if he does not act in conformity
with the natural law? Grotius answers this question in affirmative and says that howsoever bad the ruler may be, it
is the duty of the subject to obey him.
26
Filartiga v Pena-Irala, 630 F.2d.876 (1980), which the case was regarding a USA court decision, which held
that torture, is a crime under the International Law concepts.
27
Oppenheimer v Cattermole (1976) AC 249, held that laws that made by Hitler to take away soldiers citizen
rights violates human rights, and therefore there cannot be laws in that form.
28
Sepala Ekanayake v AG, C.A. 132/84. Decided on August 7th, 1986, where justice needs to take place that even
though the domestic law is silent on that, connecting it to international law concepts that justice could be rewarded
and the accuse can be punished was the importance of this case.
29
(i) Governments are equal (ii) Governments in their foreign relations are perfectly free (iii) and promises between
the Governments are of binding nature because to fulfill a promise is a principle of natural law.
30
Hilaire McCoubrey; Nigel D. White, Text book on Jurisprudence, Blackstone Press Limited, 1996, pp 77;
Thomas Hobbes (1588-1679) lived during the troubled period in England of the reign of Charles I, the Civil War,
the Comwellian Commonwealth and, later Restoration. His principal work, Leviathan, was published in 1651 and,
hardly surprisingly, reflected a concern with the maintenance of peaceable order and the avoidance of civil
collapse.

preservation of person and property.
31
He is a jurist who supported the absolute authority of the
sovereign. It is identical in his opinion which he has stated that Governments without sword
are but words, and of no strength to secure a man at all.
32
Later as time moved on it made
individuals to demand more freedom where new theory of natural law was needed and J ohn
Locke
33
gave an interpretation. According to him the use of Government and law is to uphold
and protect the natural rights. So far the article has discussed on it is evident of the
development of natural law and how jurists have intended to give interpretation to this concept
in different ways. Rousseau
34
stated that social contract is not a historical as stated by
Hobbes and Locke but it is a hypothetical incident.
35
The development of this social contract
theory could be related to the contemporary world as below. The basic level of social contract
theory is exercised is through elections of some people to for the government.
36
Most of the
countries a constitution exists and it is to reflect the will of the citizens and then to abide the
provisions of that so citizens will live accordingly respecting the procedure and the
community. Therefore The jurisprudence behind social contract theory is to promote peace
and harmony and as that it is the bed rock of democratic societies. Rousseau
37
was towards

31
Hobbes says that prior to the state of nature was solitary, poor, nasty, brutish and short. For getting self-
protection and avoiding misery and pain, man voluntarily entered into a contract and surrendered their freedom to
some mightiest authority that could protect their lives and property.
32
33
Hilaire McCoubrey; Nigel D. White, Text book on Jurisprudence, Blackstone Press Limited, 1996, pp 79; John
Locke (1632-1704) lived a generation on and in circumstances very different fromthose which had troubled
Hobbes. Lockes writings provided the theoretical accounting for the 1688/89 Glorious Revolution in which
James II was overthrown and replaced, jointly, by WiilamIII and Mary II, broadly upon terms set by Parliament,
or more technically, a body acting as Parliament.
34
1712-1778
35
Before this contract, man was happy and free and there was equality among them. By this social contract men
united for the preservation of their rights of freedomand equality, for this they surrendered their rights not to a
single individual sovereign but to the general will of the community.
36
Daudi Mwita Nyamaka, Social Contract Theory of John Locke in Contemporary World, pp 12,
http://works.bepress.com/cgi/viewcontent.cgi?article=1009&context=dmnyamaka , accessed on 10.02.2013, The
major problem facing many countries is non adherence by the governments to the social contract principles as
propounded by J ohn Locke. The said principles require the government and the people to exist under pactum
unionis and pactum subjectionis with due respect and adherence tothe duties and rights arising there from.
37
M.D.A. Freeman, Lloyds Introduction to Jurisprudence, Eighth edition, Sweet and Maxwell, 2008, pp 111;
As Barker has noted: Rousseau is a J anuslike figure in the history of natural law. He turns to it and belongs to it;
he turns away from it and belongs elsewhere. Rousseaus concepton of a state of nature is closer to Lockes than
Hobbess though without Lockes emphasis on the sanctity of property.

peoples sovereignty where as Locke was stressing on the individual.
38
In the 18
th
century the
natural law and concept of social contract was supported by Kant and Fichte. Immanuel
Kant
39
recognized natural rights because it was necessary for the freedom of individual than
acquired rights.
40
His view was that an action is right only if it co-exists with each and every
mans free will according to the universal law.
41
Along with these in the modern world the
argument that capital punishment
42
is deterrence to crime is still need to be proven
satisfactorily and also in any case the use of human beings as means of social end is a question
still need to discuss along with ethics. Especially when some of those executed are innocent
people. This debate too has been arguable together with the Natural Law concepts.
In the 19
th
century it was a period where natural law had to suffer. Because jurists such as
David Hume rejected the concept of natural law stating that it was vague, obscure and
contrary to empirical approach to law.
43
Auguste Comte stated that natural law is false, non
scientific and based on super natural beliefs.
44
Apart from these attacks historical researchers
started to state that social contract was myth. In this stage it became very hard for the natural

38
Rousseaus natural theory is confined to the freedom and liberty of the individual. According to him, state, law,
sovereignty, general will are interchangeable terms.
39
1724-1804
40
He propounded his famous theory of Categorical Imperative in his book entitled Critique of Pure Reason. His
theory embodied two principles; (1) It expects a man to act in such a way that he is guided by dictates of his own
conscience. Thus, it is nothing more than a human right of self determination. (2) The second principle expounded
by Kant was the doctrine of autonomy of the will which means an action emanating from reason and does not
mean the freedomto do as one pleases.
4141
42
Kansas University, Issues in Ethics: A Natural Law Approach, pp 01, http://www.k-
state.edu/assessment/resources/ethics/ethdisc.pdf ; accessed on 10.02.2013; In natural law tradition, to go against
the natural law is to act against the universal human good or to diminish authentic human existence. Good is
defined as that which contributes to human fulfillment. It is generally accepted that there are four basic goods or
needs that are required for our fulfillment as human persons -- life, truth, society, and reproduction. Life is
considered the fundamental good because all other goods or human rights depend on its protection. Thus, human
life can be ethically taken only when another human life or lives are mortally threatened. The principle of self
defense has been expanded to include entire nations within the framework of a just war theory. The issue in the
natural law tradition is whether or not those who have committed capital crimes and are now in prison present
enough of a threat to the lives of others to permit their execution under an expanded principle of self defense.
Revenge is not an acceptable reason, even in just-war theory. Even if it could be successfully argued in natural
law tradition that those guilty of capital crimes, by that fact, forfeit their lives (this is doubtful), there is justifiable
doubt about the actual guilt of those convicted, evidenced by the rising number of death row inmates who have
been proven innocent on review of their convictions.
43
44

law theories to survive. But towards the end of the 19
th
century due to some reasons
45
revival
of Natural Law theories took place. Dr. Allen has stated that this new natural law theory is the
new natural law is value loaded, value oriented and value conscious and its relativistic and not
absolute, changing and varying and not permanent and everlasting character.
46
Rudolf
Stammler
47
in his opinion law of nature means just law which harmonizes the purposes in the
society.
48
Another professor who has made an immense contribution towards natural law
theory is Professor Rawls who talks about two basic principles
49
which emphasis to ensure
maximum benefit to the community as a whole. Fuller
50
is one of the leading supporters of the
modern natural law. In his opinion the concepts such as law and morality are co-related. He
denied the separation between is and ought and said that good order is law which
corresponds to justice or morality.
51
According to Fuller, law is a purposive system, the
purpose being to subject human conduct to the control and guidance of legal rules.
52
He has
also stated 8 requirements
53
which he thinks which in indeed to make the law really effective in
every legal system. Unlike Fullers theory which states about procedural natural law, J ohn

45
Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 93-94;
(1) A reaction against 19
th
century legal theories appeared because they had given more importance to positive
law. (2) It was realized that abstract thinking or a priori assumptions were not completely futile. The changed
social conditions had their own problems which were not solved by the pure positivist approach.
46
47
1856-1938
48
According to Stammler, all positive law is an attempt at just law. Justice is a harmony of wills or purposes
within the framework of the social life. The harmony of wills or purposes varies according to time and place.
According to him, the fundamental principles necessary for a just law are two (a) principle of respect, and (b) the
principle of community participation.
49
first is equality of right to securing generalized wants including basic liberties, opportunities, power and
minimummeans of substance and social and economic inequalities should be arranged so as to ensure maximum
benefit to the community as a whole.
50
1902-1978
51
52
ibid
53
ibid
(a) There should be definite rules,
(b) These rules must be well publicized,
There should be no abuse of retrospective legislation,
(d) The rules must be easily understandable
(e) The rules must be practicable and not require a person to do something which is beyond his power or capacity
(f) The rules must not be contradictory with any other existing rule
(g) The rules should not be subjected to frequent change and
(h) There must be congruence between the rules promulgated and their actual administration

Finnis advanced the theory
54
of natural rights which unequivocally falls into the category of
naturalist. It relates very closely to the analysis of St Thomas Aquinas but on other hand
refers to an approach which clearly talks about to the modern period. This is a highly
significant contribution to the modern naturalist revival, not as an abolition or denial of other
schools of jurisprudence but rather as a redress of an imbalance which existed in conventional
jurisprudence from the middle of the 19
th
century to the later part of the 201th century.
55

Finnis sets out to describe Natural Law and Natural Rights what he considers to be the basic:
values of human existence and principles of all practical reasoning too.
56
Finnis has also
referred in his text to certain exceptionalness or an absolute human claim rights
57
which
includes many in detail.
With the explanations of Natural Law jurists, it is important to see the idea that positivists had
behind Natural Law concepts too. Significantly, regarding H.L.A. Hart and the minimum
content theory of natural law. Hart as a legal positivist accepts that there is a core of good
sense within natural law doctrines.
58
Many people believe that difference of him is that he

54
Hilaire McCoubrey; Nigel D. White, Text book on Jurisprudence, Blackstone Press Limited, 1996, pp 94-95;
Finniss core concern with theory of rights sets classical naturalist concern with the moral or ethical and
purposive nature of law into a modern discourse of rights which is firmly rooted in fundamental preoccupations
of the mdern legal and political world. Secondly, Finniss theory moves away fromthe still essentially formal
concerns of post positivist analyses, such as that of Fuller, and adds a modern naturalist voice to jurisprudential
debate. This serves the interest of a diversification of the range of analyses which may be seen as a prerequisite for
the adequate address of the broad issues arising from the operation of law in the modern world.
55
Hilaire McCoubrey; Nigel D. White, Text book on Jurisprudence, Blackstone Press Limited, 1996, pp 102
56
Peter Halstead, Key Facts Jurisprudence, British Library, 2010, pp 38; He does this by considering - How
such values and principles enter into any consideration of good reasons for action, and any full description of
human conduct and the sense in which such basic values are what he calls self-evident.
57
L.B. Curzon, Lecture Notes Jurisprudence, Cavendish Publishing Limited, 1995, pp 52; They include: the
right of an individual not to have his life taken directly as a means to any further end, the right not to be
positively lied to in situations in which one expects reasonable factual information, the right not to be condemned
on charges which are known to be false, the right not to be deprived of procreative capacities, the right to be
considered in any assessment of what is required in the name of the common good of society.
58
Howard Davies, David Holdcroft, Jurisprudence: Text and Commentary, Butterworths, London, 1991, pp 179;
For it is a truth of some importance that for the adequate description not only of the law but of many other social
institutions, a place must be reserved, besides definitions and ordinary statements of fact, for a third category of
statements: those the truth of which is contingent on human beings and the world they live in retaining the salient
characteristics which they have.

interprets it in a different way; also some believe such as prohibition of murder etc. were
commonalties which existed too.
59

Few incidents where we see the Natural Law application in the modern world are; firstly that
whether it is ethical to authorize a retaliatory strike and as an example whether U.SA. can
destroy Iraq. Natural Law analysis has discussed about the inviolable right of individual. But
in a conflict situation, natural law makes a distinction between life of an unjust aggressor and
an innocent human being.
60
All considerations of modern warfare are understandably quite
complex. In this case, the natural law tradition could offer considerations from the just-war
theory which include when war is justified and what acts are moral in a just-war situation.
61

Secondly, the debate on human rights which often arise in modern days is whether to look how
far we can go in depth in human rights. The right place for human rights is that they must be
subordinated to Natural Law. They must be founded not on cheap populism, but on a sound

59
Andrew, Harts Criticismon Natural Law, http://afterthelaw.blogspot.com/2009/10/harts-criticism-of-natural-
law.html, accessed on 11.02.2013, The Natural Law theorists understand such similarities as deriving from a
higher law which is universal, innate, and cognitively accessible to humans. Incorporationists such as Hart, on
the other hand, recognize this as a mere coincidence of social values. Whether or not these social values are also
referred to as morals is not an issue. The reason Hart allows for moral criticisms of the law is because
describing a law as immoral is equivalent to calling it a contradiction to the accepted social values of a given
society. He is unconcerned with which termone uses, but his understanding of the limitations of moral concepts
in the sense Natural Law Theory uses it requires that the law not be sheltered from all other considerations. This
openness to moral criticism also reinforces his separation of law as it is and law as it ought to be which he
claims Natural Law theorists fuse together. Despite allowing for moral criticismof the law, Hart does not imply
that a law that can be morally criticized is not a law at all. Among others, these distinctions lead to my conclusion
that Incorporationisms main critique of Natural Law is that it is simply too insular. It does not account for the
variety of moral perceptions in the world and is stubborn to the existence of any law not pertaining to these
unidentified moral values. Instead, Natural Law account for its inadequacies by broadening its perception of the
law.
60
Kansas University, Issues in Ethics: A Natural Law Approach, pp 01, http://www.k-
state.edu/assessment/resources/ethics/ethdisc.pdf ; accessed on 10.02.2013; When innocent life is attacked, the
person and/or the community has a right to self defense, e.g.the just-war doctrine. Since innocent life is inviolable,
unjust aggressors can be resisted by means that include, as a last resort, lethal measures. However, not just any
lethal measures can be accepted especially in conflict between nations with modern weapons of mass destruction.
61
Kansas University, Issues in Ethics: A Natural Law Approach , pp 01, http://www.k-
state.edu/assessment/resources/ethics/ethdisc.pdf ; accessed on 10.02.2013; 1) Some response is justified to
defend against other attacks, 2) no lethal response can be designed out of simple revenge - you kill our innocents,
we will kill yours, 3) the response must be judged to be a last resort among other options - limited conventional
warfare as opposed to a nuclear response, 4) the goals to be accomplished are sufficiently important to outweigh
the harms that can reasonably be foreseen, 5) consideration of the principle of discrimination which forbids the
direct killing of the innocent noncombatants e.g., the bombing of civilian population centers, 6) consideration of
the principle of proportionality that forbids acts within warfare that would inflict unnecessary or excessive harm
on civilians and/or military personnel. Finally, if you decide to bomb the cities of Iraq, what have you become in
the process? Have you perhaps become just like the enemy? In other words, does your act of lethal retaliation
diminish your own authentic humanity by making you a slayer of the innocent without sufficient reason?

anthropology, in which man is seen as capable of making reasonable and moral decisions, and
which therefore holds him responsible for his actions. They must be based on reality rather
than on imagination.
62
Thirdly, the impeachment saga that has taken place in Sri Lanka is also
identical. It is shown with this debate on the impeachment to the chief justice, identifying the
wide development of Natural Law by, this notion of natural justice is derived from the Natural
Law, meaning that justice is fused with morality and responsibility.
63
Reflecting the
constitution from the perspective of natural justice, the courts appear to be far better suited to
interpret the Constitution than elected representatives because they are organized as the most
appropriate institutions to achieve equality, generality, and morality.
64

After the changes of the development of natural law, at the same time it is important to see the
criticism of Natural Law theory too. In my opinion the main critic against the natural law
theory is that it complicates the nature of law and morality with science, secondly as an
example ought to be may not be used to be away to conform needs of the society, thirdly
even though legal disputes could be settled by courts disputes relating to morality and law of
nature wont be able to subject to judicial eye, fourthly rules of morality absorbed in natural
law are not amendable but the legal rules need to change with the modern needs of the
changing worlds and finally though law and morality seems to conflict with each other to
decide if any law is just or unjust it will need to be subject to the principles of morality too.
Therefore I have explained in this report the main four periods that Natural Law has been

62
Jakob Cornides, Universal Values or Particular Agendas Can We Still Speak Credibly of "Human Rights"? ,
December 2012, pp 21, http://works.bepress.com/cgi/viewcontent.cgi?article=1043&context=jakob_cornides,
63
Jude Fernando, Judiciary at war against the Constitution, January 09
th
2013,
http://www.colombotelegraph.com/index.php/part-ii-judiciary-at-war-against-the-constitution/ , accessed on
11.02.2013; This is different from justices narrow definition found in literature sympathetic to legal positivism,
where it is defined simply in terms of two principles that protects individuals against arbitrary exercise of power
by ensuring fair play.: (1) Audi alterampartem: no accused person, or person directly affected by a decision shall
be condemned unless given full chance to prepare and submit his or her case and rebuttal to the opposing partys
arguments; (2) Nemo judex in causa sua: no decision is valid if it was influenced by any financial consideration or
other interest or bias of the decision maker.
64
Jude Fernando, Impeachment Misadventure and the Advent of the Spring in Sri Lanka, January 08
th
2013,
http://groundviews.org/2013/01/08/impeachment-misadventure-and-the-advent-of-the-spring-in-sri-lanka/ ,

developed, analyzing the importance of it. Next the report has concentrated to show how these
changes have helped to develop the contemporary world incidents together with Natural Law
concepts. There by the conclusion that comes to at the end of the analysis is that Natural Law is
immensely significant that it has been developing throughout many eras.

By:- Jayani De Silva
LL.B. (Hons) (Colombo)

Natural Law

Enviado por

Dados do documento

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Natural Law

Enviado por

Direitos autorais:

Formatos disponíveis

LAW MANTRATHINK BEYOND OTHERS

(National Monthly Journal, I.S.S.N 2321 6417)

Você também pode gostar