Scope & Natural Law

Jurisprudence is the knowledge of law in its various forms and

manifestations. Modern jurisprudence is very wide in its range and it
trenches in the fields of history, psychology, philosophy, economics and
anthropology. Its the lawyer extraversion. It is the lawyers examination of
the precepts ideals and techniques of the law in the light derived from
present knowledge in disciplines other than law.
Natural law theory asserts that there are laws that are immanent in
nature, to which enacted laws should correspond as closely as possible.
This view is frequently summarized by the maxim, an unjust law is not a
true law, in which unjust is defined as contrary to natural law.
Natural law central themes by Curzon:
a) Natural law is based on value judgements, which originate from some
absolute source, e.g revealed word by God. Hence, these judgements are
in accordance with nature and reason. b) The entire nature of the universe
is manifestation of these value judgements. Hence, these judgements are
immutable and eternally valid. c) It is only through proper human
reasoning that the natural law can be grasped and understood. d) Natural
law must overrule all positive laws. In fact, positive law is considered to be
law only if it is in conformity with the natural law. e) Law is an essential
necessity for mans life in society.
Thomas Acquinas (1225 1274)
He defines law as an ordinance of reason for the common good made by
him who has the care of the community and promulgated. Law is divisible
into four types, which are unified and inter-related.
a) Lex Aeterna This is eternal law, or divine reason, known only to God.
This Gods plan for the universe or His rational guidance of created
things. All creatures should obey the law, but man who endowed with free
will can afford to disobey. b) Lex Naturalis It is the result of mans
participation in eternal law and can be discovered by reason, which are
consequences of a mans exercise of reason to have the basic principle to
do good and avoid evil. c) Lex Divina It is Gods law for mankind as
revealed in the scriptures. It is not the same as natural law, but it is not
contrary to it. It provides rules as to how a mans life should be
conducted. d) Lex Humana It is a man-made law, supported by reason. It
must conform to natural law, and is enacted for common good.

Prof HLA Hart

Hart concedes that there is a core of indisputable truth in the doctrines of
Natural Law. To him, law is a social phenomenon, and it cannot be
understood without considering the social practices of a community. When
he talks of the minimum content of natural law, he means that there are
certain rules which are essential, if individuals are to survive and live
together in a community. Survival is an aim, a basic human desire or the
minimum goal for human law.
Hart call these rules as the consequences of human condition exhibiting
the following characteristics:
a) Human vulnerability to physical attacks. b) Approximate equality in
mental and physical abilities. c) Limited altruism we are neither devils
nor angels. d) Limited resources our requirements of food, clothes and
shelter are limited. e) Limited understanding and strength of will there is
no guarantee that we shall cooperate with others.
Hart argues that a certain minimum content of law is a natural necessity
which specified as follows:
1) Law must have restriction on the free exercise of violence. 2) Laws
must be based on mutual forbearance. 3) Laws must regulate the use of
property. 4) Laws must provide for the creation of obligation. 5) Laws must
provide for sanctions if they are not obeyed.

L.L Fuller
Fuller was mainly concerned with the conditions sine quibus non for the
operation of laws. He believed law is the enterprize of subjecting human
conduct to the governance of rules. Fuller lists 8 qualities of excellence
which are necessary for making laws. They comprise the inner morality
of law and the procedural natural law.
The 2 aspect of morality :
1) Morality of aspiration morality of good life. a. External morality
substantive natural law b. Internal morality procedural natural law 2)
Morality of duty basic rules which society cannot run without it.
He shows a necessary connection between law and morality. A rule
becomes law only if it has fulfilled some moral criterion. For instance,
unjust laws are not laws. He called the coherent legal system which
consist of inner morality of law and the procedural natural law as the
desiderata and they are as follows:
1) Generality 2) Promulgation 3) Prospectivity 4) Clarity 5) Consistency or
avoiding contradiction 6) Possibility of obedience 7) Constancy through

time or avoidance of frequent change 8) Congruence between official

action and declared rules.
A legal system with the above principles, would command obedience with
moral justification/fidelity of law.
Finnis
By the maxim of Lex inisuta non est lex, meaning thereby unjust law are
not laws. According to Finnis, unjust laws are not denied the title of law,
but should be dismissed as corruption of law or as law to a lesser
degree.
Unjust law though valid, are fringe meanings and they dont bind our
conscience. Finnis is not concerned with validity of unjust law but on
whether there can be moral duty to comply with unjust law.
Disobedience of such laws may consequently erode the legal system
which is just on the whole. If unjust law is disobeyed by 1 citizen, other
may follow suit and ultimately the law and authority may be discredited.
He enumerates 7 basic forms of human flourishing (basic goods) as
follows:
a) Life self preservation and procreation. b) Knowledge urge of
curiosity, renamed as truth. c) Play significant characteristic of human
beings. d) Beauty aesthetic experience. e) Sociability extending ones
hand in friendship. f) Practical reasonableness just and well organized
society so that a man can achieve the basic goods. g) Religion
relationship between basic goods and the universe.

These basic goods are :

1) Objective: this is evident from a survey of anthropological research. 2)
Basic: they are basic because all other existing values are subordinated to
them. 3) Fundamental: because there is no hierarchy within framework of
basic values. They constitute a common good for all human beings. 4)
Pre-moral: because they furnish the evaluative substrum of all moral
judgements. 5) Self-evident: these basic goods are not achieved by
reason on facts. They are self-evident to anyone of the age of reason.
These are universal goods and are seen as acceptable objects,
irrespective of the fact whether or not each individual tries for all them.
The basic good along with requirements of practical reasonableness,
comprise the principles of natural law, which are universal and not
changeable. They are as follows :
a) To form a coherent plan of life. b) To have no arbitrary preferences
among values. c) To have no arbitrary preferences among persons. d) To
maintain some detachment from ones project and show some

commitment for it. e) To pursue the good actively. f) To respect every basic
value and not to choose directly against any human good. g) To seek the
good of the community. h) To follow ones conscience. i) To recognize
impartiality among persons.
CASES
1. Corbett v Corbett
2. DPP v Shaw
3. Madzimbamoto v Lardner Burke