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For the scientific usage, see Physical law

Natural law (Latin jus naturale) is law that exists independently of the positive law of a given political order, society or nation-state. It is simultaneously a legal philosophy or perspective, and a genre of law - depending on the jurisdiction in which the term is used.

As a genre, natural law is the law of nature—that is, the principle that some things are as they are, because that is how they are. This use is especially valid in Scotland, where "natural law" operates as a genre of law parallel to both civil and criminal law, and its discussion is not limited to human beings. The law of gravity, for example, is a natural law in this sense.

As a philosophical perspective, especially in the English and American legal traditions, the principles of natural law are expressed, obliquely or openly, in such documents as Magna Carta and the United States Declaration of Independence, when rights are discussed, explicitly or implicitly, as being inherent. For example, the expression "...that all men are created equal, that they are endowed by their Creator with certain unalienable Rights..." expresses a natural law philosophy.


History

The use of natural law, in its various incarnations, has varied widely through its history. It currently has meanings in ethics and jurisprudence, despite the core claims of both fields being logically independent. According to natural law ethics, the moral standards that govern human behavior trace to the nature of human beings, to a supreme being, or to the cosmos in general. According to natural law jurisprudence, the fundamental principles of all law derive from nature and the natural world, or from a supreme being, depending on the particular perspective—but it is never the creation of human societies or governments. Social contract theorists, such as Hobbes, Locke or Rousseau all believed in a natural law and in natural rights, which were transferred from the individual subject to the sovereign state. The state would then protect individuals from each other through the mediation of its monopoly on the legitimate use of physical force. The idea that the concepts of law and morality intersect in some way is called the "overlap thesis".

There are a number of different theories of natural law, differing from each other with respect to the role that morality plays in determining the authority of legal norms. This article will deal with its usages separately rather than attempt to give a single concept that ties them all together.

Greek philosophy was highly concerned with the difference between "nature" (physis, φúσις) on the one hand and "law" or "custom" (nomos, νóμος) on the other. What the law commanded varied from place to place, but what was "by nature" should be the same everywhere. It was in accordance with the latter that philosophers strove to live. The development of this tradition into a natural law is usually attributed to the Stoics. This law was how a rational human being, seeking his own true happiness, would act. These theories became highly influential among Roman jurists, and consequently played a great role in subsequent legal theory.

Despite its pagan origins, a number (though not all) of the early Church Fathers -- in the West more so than in the East -- sought to incorporate the natural law tradition into Christianity (the suspect devotion of the Stoics to pagan worship no doubt aided in this adoption). The most notable among these was Augustine of Hippo, who equated natural law with man's prelapsarian state; as such, a life according to nature was no longer possible and men needed instead to seek salvation through the divine law and grace. In the Twelfth Century, Gratian reversed this, equating the natural and divine laws. Thomas Aquinas restored Natural Law to its independent state, asserting that, as the perfection of human reason, it could approach but not fully comprehend the Eternal Law.

All human laws were to be judged by their conformity to the natural law. An unjust law was in a sense no law at all. The common law accepted this in determining the content of the law in a particular case. At this point, the natural law was not only used to pass judgment on the moral worth of various laws, but also to determine what the law said in the first place.

The natural law was inherently teleological in that it aimed at human happiness. Its content was therefore determined by a conception of what things constituted happiness, be they temporal satisfaction (as with the Stoics) or salvation (as with the Christians). The state, in being bound by the natural law, was conceived as an institution directed at bringing its subjects to true happiness. In the 16th century, the School of Salamanca (Francisco Suárez, Francisco de Vitoria, etc.) developed a philosophy of natural law.

By the Seventeenth Century, such a view came under intense criticism from some quarters. Thomas Hobbes instead founded a contractualist theory of Legal Positivism on what all men could agree upon: what they sought (happiness) was subject to contention, but a broad consensus could form around what they feared (violent death at the hands of another). The natural law was how a rational human being, seeking to survive and prosper, would act. In Hobbes' opinion, the only way natural law could prevail was for men to submit to the commands of the sovereign. Because the ultimate source of law now comes from the sovereign, and the sovereign's decisions need not be grounded in morality, Legal Positivism is born. Jeremy Bentham's modifications on legal positivism further developed the theory.

John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government. Locke turned Hobbes' prescription around, saying that if the ruler went against natural law and failed to protect "life, liberty, and property," people could justifiably overthrow the existing state and create a new one. Thomas Jefferson, echoing Locke, employed natural law in his appeal to unalienable rights in the Declaration of Independence:

We hold these truths to be self-evident, 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.


Hobbes' natural law
It has been suggested that this article or section be merged into Natural law. (Discuss)

As used by Thomas Hobbes in his treatise, Leviathan, natural law is a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or takes away the means of preserving the same; and to omit that by which he thinks it may best be preserved.

There are nine Laws. The first two are expounded in chapter XIV ("of the first and second natural laws; and of contracts"); the others in chapter XV ("of other laws of nature").

* His first Law of nature is that every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and advantages of war.
* The second Law of nature is that a man be willing, when others are so too, as far forth, as for peace, and defence of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himself.
* The third Law is that men perform their covenants made. In this law of nature consisteth the fountain and original of justice... when a covenant is made, then to break it is unjust and the definition of injustice is no other than the not performance of covenant. And whatsoever is not unjust is just.
* The fourth Law is that a man which receiveth benefit from another of mere grace, endeavour that he which giveth it, have no reasonable cause to repent him of his good will. Breach of this law is called ingratitude.
* The fifth Law is complaisance: that every man strive to accommodate himself to the rest. The observers of this law may be called sociable; the contrary, stubborn, insociable, forward, intractable.
* The sixth Law is that upon caution of the future time, a man ought to pardon the offences past of them that repenting, desire it.
* The seventh Law is that in revenges, men look not at the greatness of the evil past, but the greatness of the good to follow.
* The eighth Law is that no man by deed, word, countenance, or gesture, declare hatred or contempt of another. The breach of which law is commonly called contumely.
* The ninth Law is that every man acknowledge another for his equal by nature. The breach of this precept is pride.



In contemporary philosophy

The Roman Catholic Church understands natural law to be inherent to nature; this understanding is in large part due to the influence of Thomas Aquinas and his book Summa Theologica (1225-1274 A.D.), often as filtered through the School of Salamanca.

It understands human beings to consist of body and mind, the physical and the non-physical (or soul perhaps), and that the two are inextricably linked. It describes human persons as being inclined toward the good. There are many manifestations of the good that we can pursue. Some, like procreation, are common to other animals, while others, like the pursuit of truth, are inclinations peculiar to the capacities of human beings.

To know what right one must use one's reason and apply it to Aquinas precepts. The most important is the primary precept, self preservation. There are also four subsidiary precepts: procreation, education of children, living in society, and worshipping God. In addition to these, there are secondary precepts, which Aquinas did not specify like the other five. Therefore, for a deontological ethical theory they are open to a surprisingly large amount of interpretation and flexibility. Any rule that helps man to live up to the primary or subsidiary precepts can be a secondary precept, for example:

* Drunkenness is wrong because it injures one's health, and worse, destroys one's ability to reason, which is fundamental to man as a rational animal (i.e. does not support self preservation).
* Theft is wrong because it destroys social relations, and man is by nature a social animal (i.e. does not support the subsidiary precept of living in society).

Natural moral law is concerned with both internal and external acts, also know as action and motive. Simply doing the right thing is not enough; to be truly moral one's motive must be right as well. The motive must coincide with Aquinas's cardinal or theological virtues. Cardinal virtues are acquired through reason applied to nature; they are:

1. Prudence
2. Justice
3. Fortitude
4. Temperance

His theological virtues are:

1. Hope
2. Charity
3. Faith

According to Aquinas, to lack any of these virtues is to lack the ability to make a moral choice. For example, consider a man who possesses the virtues of justice, prudence, and fortitude, yet lacks temperance. Due to his lack of self control and desire for pleasure, despite his good intentions, he will find himself swaying from the moral path.

Martin Luther King, Jr. invoked the natural law in his "Letter from Birmingham Jail", stating that the man-made (positive) laws that he broke were not in accord with the moral law or the Law of God (natural law).

Hugo Grotius based his philosophy of international law on natural law. In particular, his writings on freedom of the seas and just war theory directly appealed to natural law. About natural law itself, he wrote that "even the will of an omnipotent being cannot change or abrogate" natural law, which "would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs." (De iure belli ac pacis, Prolegomeni XI). This the famous argument etiamsi daremus (non esse Deum), that made natural law no longer dependent on theology.


In contemporary jurisprudence

In jurisprudence, natural law is the doctrine that just laws are immanent in nature - that is, they can be "discovered" or "found" but not "created" by such things as a bill of rights; that they can emerge by the natural process of resolving conflicts, as embodied by the evolutionary process of the common law.

These two aspects are actually very different, and can either oppose or complement each other, although they share the common trait that they rely on inherence as opposed to design in finding just laws. In either case, natural law is considered something that exists independent and outside of the human legal process itself, rather than a principle whose origin lies inside the legal system.

Whereas legal positivism would say that a law can be unjust without it being any less a law, a natural law jurisprudence would say that there is something legally deficient about an unjust law. Legal interpretivism, famously defended in the English speaking world by Ronald Dworkin, claims to have a position different from both natural law and positivism.

Besides utilitarianism and Kantianism, natural law jurisprudence has in common with virtue ethics that it is a live option for a first principles ethics theory in analytic philosophy.

The concept of natural law was very important in the development of the English common law. In the struggles between Parliament and the monarch, Parliament often made reference to the Fundamental Laws of England which embodied natural law principles since time immemorial and set limits on the power of the monarchy. The concept of natural law was expressed in the Magna Carta, the English Bill of Rights, the United States Declaration of Independence, and others.

Natural law jurisprudence is currently undergoing a period of reformulation (as is legal positivism). Many legal philosophers, including Americans Germain Grisez, John Finnis, Robert P. George, and Canadian Joseph Boyle, have constructed a new version of natural law. The 19th-century anarchist and legal theorist, Lysander Spooner, was also figure in the expression of modern natural law.

"New Natural Law" as it is sometimes called, originated with Grisez. It focuses on “basic human goods”, such as human life, which are "self-evidently" and intrinsically worthwhile, and states that these goods reveal themselves as being incommensurable with one another.

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For more on the abbreviation "Crit" see: Crit (disambiguation)

Critical legal studies refers to a movement in legal thought that applied methods similar to those of critical theory (the Frankfurt School) to law. The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents.

History

Although the intellectual origins of the Critical Legal Studies (CLS) can be generally traced all the way back to American Legal Realism, as a distinct scholarly movement the CLS fully emerged only by the late 1970s. Many first-wave CLS scholars entered legal education, having been profoundly influenced by the twin experiences of the radical civil rights movement and the anti-war movements of the late 1960s. What started off as a critical stance towards American domestic politics eventually translated into a critical stance towards the dominant legal ideology of the modern Western society. Drawing on the works of the Frankfurt school (except Jürgen Habermas) and French structuralism, the "crits" sought to demystify the numerous myths at the heart of the mainstream legal practice.

As a movement, the CLS peaked in the United States sometime in the first half of the 1980s. By the end of the decade, its institutional influence, however, started to fade rapidly. Today, the American CLS continues mainly as a school of thought, having spawned several successor networks and movements.

None of the European CLS networks has ever achieved the same institutional prominence as the American CLS. The British CLS movement, however, still continues, having started roughly at the same time as its American counterpart. One of the most prominent European scholars whose work shows strong CLS influences is the Finnish international lawyer Martti Koskenniemi.


Themes

Although the CLS (like most schools and movements) has not produced a single, monolithic body of thought, several common themes can be generally traced in its adherents' works. These include:

* The claim that, contrary to the common perception, legal materials (such as statutes and case law) do not completely determine the outcome of legal disputes, or, to put it differently, the law may well impose many significant constraints on the adjudicators in the form of substantive rules, but, in the final analysis, this may often not be enough to bind them to come to a particular decision in a given particular case. Quite predictably, once made, this claim has triggered many lively debates among jurists and legal philosophers, some of which continue to this day (see further indeterminacy debate in legal theory).
* The claim that, at the end of the day, all "law is politics." Many modern-day commentators have interpreted it as implying that in the eyes of the CLS scholars all "legal decisions" are just like "political decisions" in the sense that it is impossible to tell judicial and legislative acts apart. This interpretation is plausible if one considers both decisions as acts based on adopted norms. In fact, legal pluralism (see Prof. Teubner's works in Germany) also claims that the concept of lawmaking does not have to be limited to states, much less legislatures. What the "law is politics" thesis is really about is the character of the arguments used in the legal and political decision-making processes, not the nature of the practical activities (let alone institutions) involved. What they have denied was the notion that in the modern Western society the discourses of law can be meaningfully separated from the discourses of politics: every type of argument normally made in the course of a legislative-deliberative process, they claimed, could be, and in practice usually is, also made in court. (This includes arguments about social welfare, rights, morality, distributive justice, economic efficiency, as well as institutional arguments.)
* The claim that far more often than is usually suspected the law tends to serve the interests of the wealthy and the powerful by protecting them against the demands of the poor and the subaltern (women, ethnic minorities, the working class, indigenous peoples, etc.) for greater justice. This claim is often coupled with the legal realist argument that what the law says it does and what it actually tends to do are two different things. Many laws claim to have the aim of protecting the interests of the poor and the subaltern. In reality, they often serve the interests of the power elites. This, however, does not have to be the case, claim the CLS scholars. There is nothing intrinsic to the idea of law that should make it into a vehicle of social injustice. It is just that the scale of the reform that needs to be undertaken to realize this objective is significantly greater than the mainstream legal discourse is ready to acknowledge.
* The claim that legal materials are inherently contradictory, i.e. the structure of the positive legal order is based on a series of binary oppositions such as, for instance, the opposition between individualism and altruism or formal realizability (i.e. preference for strict rules) and equitable flexibility (i.e. preference for broad standards).
* The postmodern claim that a belief in the only correct judicial deduction is a religious belief. Comparison of judicial reasoning with shamanic practices.

Prominent participants in the CLS movement include Duncan Kennedy, Karl Klare, Mark Kelman, Mark Tushnet, Morton Horwitz, and Roberto Unger.


Criticism

Many conservative and liberal scholars were highly critical of the critical legal studies movement. The idea that the law was utterly indeterminate was contested in a famous debate in the late 1980s. More conservative critics argued that the radical nature of the movement was inconsistent with the mission of professional legal education.


Continued influence

While the influence and prominence of CLS in the American legal academy seem to have waned in recent years, offshoots of CLS, including critical race theory continue to grow in popularity. Associated schools of thought, such as contemporary feminist theory and ecofemenism and critical race theory now play a major role in contemporary legal scholarship. An impressive stream of CLS-style writings has also emerged in the last two decades in the areas of international and comparative law.