Related questions:
·
Examine
in details the mission and inputs of philosophy (natural law) in the evolution
of law.
·
Discuss
in details the contribution of natural law in man’s drive to civilized
existence.
·
What
is natural law? Examine why and how it has continued to be of interest and
relevance to the society.
(YOUR INTRODUCTION)
PHILOSOPHY AND NATURAL LAW: THE CONNECTION
In
a nutshell, it is established that philosophy is a universal discipline that
encompasses the evaluation of all sectors and beings of life. Likewise, natural
law has a nature of being objective and universal. It seeks to regulate the
maxims of law on a universal scale. In addition, philosophy has been
conceptualized to be ‘the search for value and the best forms of life’; in
other words, it has a mission to prescribe what ought to be the status quo in
terms of worldviews, values, lifestyles and the likes. Likewise, natural law
stands as a custodian and yardstick for establishing the principles by which
law and its administration should entail. In essence, philosophy is natural law
and natural law is philosophy, as the former is embedded in the latter.
THE CONCEPT OF NATURAL LAW
In
its budding stage, natural law was restricted to religious, metaphysical and
supernatural ideals. But now it has become a yardstick in evaluating political
ideology, legal system and economic policies. The rationale of positive law
springs from its derivation from natural law; also the validity of human rights
is based on natural law.
Like
philosophy, defining natural law has been an arduous task that is unending.
This is also buttressed by the fact that one has to initially consider the full
meaning of nature prior to its link with law; and several thinkers have
defaulted in this. Also, some civilizations in human history did not have the
concept of natural rights, which implies the link between the rights of man and
the gift of nature.
Generally
however, natural law (law of nature) has been defined as a law whose content is
set by nature and is thereby universal. Natural law entails the use of
rationality to evaluate human nature as well as deduce binding rules of moral
behavior. Positive law, which refers to man-made law, is not the same as
natural law. This is due to the fact that positive law derives from natural
law, and that it is the law of a given political community, society, nation or
state. Hence, natural law is a standard by which positive law can be
criticized.
Several
scholars have made immense contribution in the evolution of natural law. Some
of them are:-
·
Plato- says we live in an orderly
universe. At the basis of this orderly universe or nature are the forms and most
fundamentally, the form of the good which Plato describes as ’the brightest
region of being. Also, in the ‘Republic’, the ideal community is a city which
would be established in accordance with nature.
·
Aristotle- emphasized the distinction
between ‘nature’ on the one hand, and ‘law’, ‘custom’ or ‘convention’ on the
other. What the law commanded varied from place to place, but what was by
‘nature’ should be the same everywhere.
·
Cicero- says that both justice and law
derive their origin from God. So, wicked and unjust statutes are not laws in
any way. Natural law obliges us to contribute to the general good of the larger
society.
·
Hobbes- 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 that which takes away the means of preserving
same, and to omit that by which he thinks it may best be preserved.
From the
fore-going, one thing is obviously clear about natural law, which is, it aims
at preserving and protecting the natural rights of man, thereby making life
more worthwhile.
NATURAL
LAW AND THE EVOLUTION OF POSITIVE LAW
From
the fore-going, it is established that positive law is intrinsically connected
with natural law, which thereby plays an active role in its formation and
administration. Some ways in which natural law has served as a backbone and
yardstick for positive law would be evaluated below;
·
The ‘is-ought’ controversy
Regarding
positive law, there has always been the need to make a distinction between ‘what
is law’ and ‘what ought to be law’. This is as a result of the subjectivity and
relativity in moral attitude across various civilizations and cultures. Natural
law is self-evident, in that, man is by nature a moral being. This implies that
man has an intrinsic ability to automatically recognize what is right and what
is wrong, what is just and what is unjust, what is virtuous and what is
vicious. But due to the variation in human moral attitude, there is still some
difficulty in classifying what the law ‘is’ and what the law ‘ought’ to be.
This is akin to the idea that what may be truth for one person could be untruth
for another.
·
The sectionism of law
Again,
due to the capitalist nature of modern day society, the imperialistic attitudes
of the aristocracy, tends to distort the structural alignment of positive law.
The impact of this is that laws would now then be made to apply to just a
section of the people (usually the poor masses), and not the entirety of the
people. Therefore, the role of natural law in this regard, is to remind the imperial
aristocrats that ‘no one is above the law’, as man, by nature is intrinsically
equal. It also ensures that judges are made to be alive to their
responsibilities.
·
The abuse of political practice
Another
role which natural law has played in the administrative evolution of law is the
separation between political theory and practice. It is a widespread fact that
statesmen and political leaders alike, are used to presenting powerful
theoretical political blueprints. However, due to the menace of corruption,
these statesmen tend to falter on their words and end up being traitors. As
‘Baron Montesquieu’ puts it, ‘power corrupts, and absolute power corrupts
absolutely’. Hence, natural law comes in to checkmate this tendency to abuse
power by making sure that political leaders do more of practice and less of
theory.
·
The distortion of human rights
According
to ‘stammer’ a natural law theorist, he states that ‘while the ideal of justice
is absolute, its application must vary with time, place and circumstance. Such
explains the reason why some civilizations justify anti-human acts like slavery
(ancient Greece), killing (some Islamic countries) and so on. Nevertheless,
when weighed against the paradigms of natural law, one can obviously see the
logical error in these acts, as they ignore the dignity of human nature, as
well as distort the humanitarian provision within society. The reaction of
natural law to this is that, it promulgates that laws be used for the promotion
of human rights.
·
Using religion for sociological
exploitation
In
conjunction with Emile Durkheim’s sociological theory of religion, it is
established that religion as a creation of the upper class within society is
being used to exploit the poor masses and the unsophisticated orthodox, by
using the concept of God as well as doctrines of a blissful afterlife to weaken
their desires for worldly, natural rights, so that they can accrue more to
themselves. Accordingly, natural law has intervened by ensuring that God is not
used against the interest of man; and it does this by promulgating the
naturalist principle.
·
Law and morality
Natural
law endeavors to ensure that there is a close affinity between law and
morality. In other words, it has to make sure that both concepts are in
agreement and do not contradict themselves. It follows that law draws some
inspiration from Ethics, the normative science of morals or right conduct. It
is perhaps on this premise that some people argue that law is inseparable from
moral principles.
·
The interest of man
As
has earlier been explained, natural law has been very helpful in positioning
the law to serve the best interest of man. It has a voice that says the law
must be used to promote the common good, as well as foster the positive
promotion of human rights. In human history, there are some civilizations that
did not have the concept of natural rights, which implies a link between the
rights of man and the gift of nature. Such civilizations practiced barbaric
traditions which were a violation of the natural rights and interests of man,
e.g. ‘slavery’ and ‘killing for sport’.
·
Tyrannous governments
In
the political realm, natural law ensures that the state does not generate with
tyranny. It makes sure that we do not grow dictators in the state. It promotes
the very essence of law, which is to compel an individual member of the state
or society (most especially those in power), to surrender malicious and
injurious tendencies toward greed for monetary and utilitarian gains, in order
that the whole may survive. Since law is the hallmark and essence of the state,
natural law productively re-enforces it, as the life of man in society would be
continually in disaster, were it unregulated by law.
(YOUR CRITICISMS AND CONCLUSION)
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