JURISPRUDENCE

Chapter Four
[Natural Law]
 Concept and Nature of Natural Law

• The concept of Natural Law is based a conviction that there

are principles of law stronger than any statute, which can be
attained merely by light of reason from the nature
• It is called Natural Law because its principles can be achieved
by reason to deduce from nature certain rules which provide
an altogether prescription for human behavior, whereby the
nature is conceived as the supreme legislator.
• It concerns with the search for absolute justice and values
which are agreeable to nature and state of man, without
which peace and happiness of society can never be preserved.
• Classical Natural Law had also been associated
with the dictates of God. Blackstone’s
Commentaries on the Laws of England (1765)
observes;
– ‘Natural Law being coeval with mankind and
dictated by God himself, is of course, superior in
obligation to any other. It is binding all over the
globe in all countries and at all times. No human
laws are of any validity if contrary to this’
• According to Dias, the term of Natural Law has
been used to connote the following;
– As ideas to which legal development and
administration must conform
– A basic moral quality in law which prevents a total
separation of the ‘is’ from the ‘ought’
– The method of discovering the perfect law
– The content of perfect law deducible by reason
– The conditions sine qua non for the existence of law
 Essential Principles of NL
• There exist ‘absolute values’ which can be deduced by reason
from the observation and comprehension of nature.
• That the validity of man-made law should be tested by reference
to those identified ‘absolute values’. In this sense the Natural
Law stands as a higher law which invalidates any inconsistent
positive law
• That the “absolute values” are universal and eternal. That which
is in accordance with nature is ‘good’ and that which is against
nature is ‘evil’
• There exists in nature an order which is rational that can be
known by man. So, that norms of human conduct which are
agreeable to nature may be considered as ‘law of nature’
 Essential…
• Nature, if understood correctly, will provide
criteria for universal, eternal and
comprehensible values from which value-
statements may be derived.
• That laws lacking moral validity is ‘wrong’ and
‘unjust’
• Good is what in accordance with nature and
evil is what contrary to nature
 Development of Natural Law
• The Greek Periods
– The Sophists
• They differentiate between ‘nature’ and ‘law’
• Nature is primary, basic and permanent, whereas law is
secondary, not original and permanent.
• They put forth a relativist philosophy, that human ideas are
relative and there is no such thing as absolute standards.
• They regarded law as purely utilitarian and the result of the
suitability of the conditions. The law is promulgated because
of the self interest of the law maker and obeyed for the self
interest of the governed.
 Development…
– Socrates (470-399 B.C)
• Man possesses insight which reveals to him the
goodness and badness of things and makes him
know the absolute and eternal law, i.e., the
natural law
• He put forth the absolute philosophy that
principle of morality should not change
• Regarded law as closely related to justice and
morality
 Development…
– Aristotle
• Law of nature is the universal law which has the same force
everywhere discoverable by the application of reason
• Positive law ought to try to incorporate the rules of natural law
• The positive law should be obeyed even if contrary to natural law
• He differentiates between Natural justice and legal justice
• Natural justice is universal and not changeable. Ex. I must return
that which has been lent to me.
• Legal justice also known as positive or conventional justice,
which is binding because it is in the form of decree/command
issued by the political authority. It is changeable according to
circumstances. For example, the statute of limitation.
 Development…
• The Stoics
– Hold that the entire world is governed by a ‘rational mind’ or ‘reason’
which draws distinction between right and wrong
– Thus, the law is the result of one`s concept of right and rectitude in light
of reason
– Their maxim ‘live according to nature’ which is governed by one` reason.
– They contemplate NL as the law of reason. As long as a man lives
according to his reason, he is said to be in conformity with NL.
– Stoics period represents the Golden Age whereby people lived in an age
of absolute NL, where there was no family, slavery, ownership of
property or government, which was later demolished by greed and
selfishness.
– Hold the view that positive law must conform to the natural law
 Development…
• The Roman Period
– Cicero (106-43 B.C) representing the Roman period put forth the idea of ‘true
and primal law’ which was in conformity with ‘right reason from the High God’
– he views NL as right reason in agreement with the nature, he says;
• True law is right reason in agreement with the nature. It is of universal
application, unchanging and eternal; it summons to duty by its commands
and deters from wrong by its prohibitions…it is a sin to alter this law. Nor it is
allowable to attempt to repeal any part of it, and to annul it wholly is
impossible.
– He stresses the following features of NL
• Immutability and universality
• Stands as a ‘higher’ law
• Ascertainable with the help of reason
– Law which is contrary with reason is invalid
 Development…
• Christian Jurists
– Augustine, he considers ‘law of nature’ as the perfect law and a
man lived in ‘golden age’ when he lived in a state of innocence and
justice governed by rules of reason.
– After the fall of man, the law of nature could no longer be realized.
It was replaced by human law and institutions of property and
government
– Even though human law is not perfect and does not necessarily
make men good, the law should be defended and upheld so as to
maintain peace among mankind.
– The human laws were to be ignored if they came into conflict with
the natural law. If they were unjust, they could not be the law.
 Development…
– Gratian published a collection of texts known as
Decretum Gratianum, where he noted that the
law of nature was to be considered as the law of
God
– Hence NL was immutable and prevailed over man-
made law
– Man-made law, secular or ecclesiastical, which
was contrary to NL would be totally rejected
 Development…
• Medieval Period
– The observation of Thomas Aquinas represents the dominant
understanding of NL during this period
– He asserts that the rule and measure of human acts is the
reason through which some God`s purposes may be discerned.
– He considered God`s law as ‘the reason of his wisdom’ and
human laws and institutions are best-founded when built upon
reason. [he seems to associate human reason with the reason of
God`s wisdom]
– Accordingly, he defines Human law as an ordinance of reason
for the common good made by him who has the care of the
community, and promulgated.
 Development…
– Aquinas divided law into four types, which are unified
and interrelated
• Lex Aeterna (the eternal law/divine reason)- known only to
God, by which all things are ruled. It is considered as the
God`s plan for the universe or His rational guidance of
created things. All unreasoning creatures must obey it, but
man who is endowed with free will can afford to disobey.
• Lex Naturalis (the Natural Law)- it is the law resulting from
man`s engagement in eternal law and can be discovered by
reason. As man possesses God`s given reason he may share
in Divine reason and derive from it a natural inclination to
such actions and ends that are fitting. It is immutable
 Development…
• The general precepts of NL consequential of a man`s
exercise of reason are
– The basic principle is to do good and avoid evil
– In every man, there is an aptitude to be good in accordance with
the nature
– On account of his reason, a man has a natural aptitude of learning
the truth about God and to live in society
• Lex Divina (Devine law)-the God`s law for mankind as
revealed in the scriptures to provides rules as to how a
man`s life should be conducted. It is to overcome the
limitations of the law known through human reason, and
provide a guide for man`s reason. It is not identical with
natural law, but it is not contrary to it.
 Development…
• Lex Humana (Human Law)-it is human made-law, supported
by reason. It must conform to natural law, and is enacted for
common good. It is a necessity because NL cannot find
solutions to day-to-day problems. It is also to compel persons
to act reasonably, mainly because people are self-centered.
– Lex Humana is either just or unjust
• It is just when it has the power of binding in conscience
• It is unjust in two ways
– When it is contrary to human good. Example, when the law imposes
unequal burden on the people
– When it is opposed to divine good. Example, laws of tyrants inducing
to idolatory
 Development…
– Unjust law does not bind in conscience, except
perhaps to avoid scandal or disturbance or to
avoid further harm to the peoples` rights.
• The Renaissance Period (14th to the 17th
century)
– Signified the period of transition where the people
no longer showed allegiance to the church or
emperor-where the power of national sovereign
had increased
 Development…
– During this period, people were critical of the
state of affairs and conscious of their power
– The effects of the above, were
• The protestants denied the authority wielded
by the church
• Natural law adopted an aspect which was more
secular
• The authority of divine law was superseded by
the intellectual authority of reason.
 Development…
• The Decline of the Natural Law (19th to 20th
centuries)
– The contributing Factors
• Scientific theories had stolen a march over the unproved
hypotheses upon which the theory of NL was based.
• Law became secularized-people lost faith in religion and
reason which were the basis of natural law
• There was a belief that improvements in law could be
brought empirically without appealing to ‘pure reason’
which formed the basis natural law theory
 Development…
• Psychological and anthropological research stressed
that law and justice were determined by adaptation to
the environment and other variables. This casted doubt
over the immutable status of the natural law.
• Some of the postulates of natural law had been
challenged by the positivist`s jurists. For example,
Jeremy Bentham described NL as ‘a mere work of the
fancy’
 Development…
• Revival of the Natural law (20th century)
– The factors are
• The Analytical and historical schools were seen as not
providing adequate solutions to problems relating to
indispensable values, such as justice and fairness which have
been the main concern of the Natural law.
• The aftermath of the 1st World War which categorically
destroyed the economic, social and political stability has
caused the people to return to the standards propagated by
the NL which were based on the higher and universal values.
Further, it was also considered necessary to have certain
norms to evaluate man-made rules of law
 Development…
• During the 2nd World War there was brutality and
anarchy in many countries, causing people to question
relativism in politic and law. For instance, Radbruch, a
Germany political philosopher, rejected relativism and
called for minimum absolute postulates for a just law.
• The overall bad effects of the two World Wars had led to
insecurity and uncertainty in life. This caused the people
to search for a new moral order.
• With the growth of militant ideologies, such Fascism and
Marxism, the people felt the need for the development
of ideologies to run counter the militant ideologies.
 Criticism of NL
1. Natural law has failed to prove, using scientific methodology,
metaphysical validation. For example, David Hume said that natural
law is only real in the sense that some individuals entertain the
feeling that it exists. He believed it was a figment/ fantasy of the
imagination of fertile minds. Hume holds that knowledge of matters
of facts can be derived solely from the data of experience-so called
‘transcendental knowledge’- Hume limits the scope of knowledge to
(i) mathematical truth
(ii) factual truth of sense and experience (no inference)
This knowledge is extremely limited in the sense that
all the laws of nature, universal knowledge of nature are not
included in here, but are classified as "beliefs" with high probability.
Its truth cannot be asserted meaningfully.
2. The natural law school looked to right reasoning as a guide to
discussing the most perfect form of laws. Right reasoning, is a standard
that cannot be verified through empirical scrutiny, as such it lends
itself to the interpretation of the most powerful individuals in the
society.
3. Another demerit of natural law is what is described as “the multiple
conscience problem”. That is, different individuals may have different
conceptions of fairness, rightness and justice with respect to the same
issue. Two equally devout people can both assert that they are acting
in accordance to natural law even though they are acting in opposite
manner. Against this background, the theory could lead to anarchy if
everyone is left to act according to the notion of what is right and just
to him as dictated by his reason without any formal sanction.
4. Another flaw of the natural law school is that, natural law is
unpredictable in character. Natural law serves as a tool in
both the hands of the oppressors and the oppressed. Where
these uncertainties result to bad ideology such as slavery,
colonialism, dictatorship, the philosophy tends to do more
harm than good. A good example is series of chronological
revolutions presently occurring in the Arab World. The ousted
oppressors such as Hosni Mubarack of Egypt, Ghadafi of
Libya, etc. all relied on natural law to justify their dictatorial
rulership, likewise the liberation movements and majority of
the masses for their own action in ousting their leaders.
 NL Modern Theories
• Lon Luvois Fuller (June 15, 1902 – April 8, 1978)
• He was a noted legal philosopher, who criticized legal positivism
and defended a secular and procedural form of natural law theory.
Fuller was professor of Law at Harvard University for many years,
and is noted in American law for his contributions to both
jurisprudence and the law of contracts. His debate in 1958 with
the prominent British legal philosopher H. L. A. Hart in the
Harvard Law Review (Vol. 71) was important in framing the
modern conflict between legal positivism and natural law theory.
In his widely discussed 1964 book, The Morality of Law, Fuller
argues that all systems of law contain an "internal morality" that
imposes on individuals a presumptive obligation of obedience.
 NL Modern Theories…
• In his 1958 debate with Hart and more fully in The Morality
of Law (1964), Fuller sought to steer a middle course
between traditional natural law theory and legal positivism.
• Like most legal academics of his day, Fuller rejected
traditional religious forms of natural law theory, which view
human law as rooted in a rationally knowable and
universally binding "higher law" that derives from God.
• He rejected the idea, that an unjust law is not a law. On the
other hand, Fuller also denied the core claim of legal
positivism that there is no necessary connection between
law and morality.
 NL Modern Theories…
• According to Fuller the purpose of law is to subject ‘human conduct to the
governance of rules’.
• Instead of postulating a substantive natural law approach which proclaims a
higher law than that enacted by the state, he adopts a procedural natural
law approach.
• He maintains that certain Moral standards, which he calls “Principles of
legality," are built into the very concept of law, so that nothing counts as
genuine/good law that fails to meet these standards.
• He argued that the law should have two aspects of morality; External and
Internal Morality
• External morality refers to the morality of aspiration or ideas to achieve a
meaningful co-existence in society. It is the concern of the substantive law.
• Internal morality which concerns with or stipulates the procedural version is
regraded as the precondition of a good law.
 NL Modern Theories…
• As far as Internal morality is concerned, he argues that all
legal rules must meet eight minimal conditions in order to
count as genuine laws. The rules must be (1) sufficiently
general, (2) publicly promulgated, (3) prospective (i.e.,
applicable only to future behavior, not past), (4) at least
minimally clear and intelligible, (5) free of contradictions, (6)
relatively constant, so that they don't continuously change
from day to day, (7) possible to obey, and (8) administered in
a way that does not wildly diverge from their obvious or
apparent meaning [that there must be a congruence
between the declared rules and the official actions].
 NL Modern Theories…
• If any of the eight principles is flagrantly
lacking in a system of governance, the system
will not be a legal one.
• The more closely a system is able to adhere to
them, the nearer it will be to the rule-of-law
ideal, though in reality all systems must make
compromises and will fall short of perfect
ideals of clarity, consistency, stability, and so
forth.
 NL Modern Theories…
• Hart criticizes that the eight desiderata are
‘unfortunately compatible with very great
inequity, and that ‘the compliance with the
eight desiderata is no guarantee of a just
order, for example Nazi Law of 1934 and the
apartheid South Africa legal system fulfill all
the eight desiderata, yet they were unjust
‘laws’.
 NL Modern Theories…
• H. L. A. Hart,(18 July 1907 – 19 December
1992)
– He is a positivist jurist
– However, he conceded that there is a ‘core of
indisputable truth in the doctrines of the NL’
– He opined that law is a social phenomenon, it
cannot be understood without considering the
social practices of a given community.
 NL Modern Theories…
– He propagated for the minimum content of the
NL, which he meant that there are certain rules
which are essential, if the individuals are to
survive and live together in a society. He
considered survival as the basic desire or
minimum goal for human law.
– He formulated the need for minimum content of
NL based on the his observation of ‘human
conditions’ which are called ‘simple truism’
exhibiting the following characteristics;
 NL Modern Theories…
• Human vulnerability to physical attacks
• Approximate equality of human in mental and
physical ability
• Limited altruism-human are neither angels nor
devils
• Limited resources of human requirements of
food, clothes, shelters etc.
• Limited understanding and strength of will in the
sense that there is no guarantee that human shall
cooperate with each others
 NL Modern Theories…
– The minimum content of law which considered by Hart as
‘natural necessity’ are as follow;
• Laws must have restrictions on the free exercise of violence
• Laws must be based on mutual forbearance
• Laws must regulate the use of property
• Laws must provide for the creation of obligation
• Laws must provide for sanctions if they are not obeyed
– Hart says that a law contrary to any of the five requirements
is void.
– He argues that without such minimum content, laws could
not serve the minimum purpose of survival which men need
in associating with each other
• Dias criticizes that the requirements put by
Hart are too vague. For example, does
vulnerability require that law should be used
to discontinue hazardous activities, or only to
provide suitable compensation when injuries
are sustained?
• Similarly, the approximate equality is vague.
What is the criterion of equality and who
applies it?
 NL Modern Theories…
• John Mitchell Finnis (born 28 July 1940)
• Finnis is a legal philosopher and author
of Natural Law and Natural Rights
(1980, 2011), a seminal contribution to
the philosophy of law and a
restatement of natural law doctrine.
 NL Modern Theories…
• NL before Finnis was based on moral values that are
objective and universal discernable by reason from the
study of the nature of the universe and man.
• The law that lacking moral principles is not law, Nazi
law which was full of injustice was not law from the
NL`s perspective.
• According to Finnis, unjust laws are not denied the
title of ‘law’ but should be dismissed as ‘corruption of
law’ or ‘law to a lesser degree’.
 NL Modern Theories…
• To him, unjust laws enjoy fringe meanings and
do not bind conscience.
• However, on the issue whether unjust laws
deserve obedience, he believes that
disobedience of such laws may erode the legal
system, if the laws are disobeyed by one
citizen, others may follow suit and
consequently, the law and authority may be
discredited.
 NL Modern Theories…
• In his effort to restate the concept of NL, he
observes that NL consists of two sets of principles;
the basic goods and requirements of practical
reasonableness
• Basic Goods
– By the term he means that there are certain basic
values that human beings want to have in their lives;
– There are; life, knowledge, play, aesthetic experience,
sociability of friendship, practical reasonableness and
religion.
 NL Modern Theories…
– Life-a basic value which corresponds to the human being`s drive for
self-preservation, all human societies concern for the value of life,
none allows killing without a fairly definite justification. Life includes
health, freedom form pain and the institution of marriage, the
procreation of children, etc.
– Knowledge is described as the pure desire to know, simply out of
curiosity, as well as a concerning interest and desire for truth.
– Play, a large and irreducible element in human culture, involving
‘engaging in performances which has no point beyond the
performance itself, enjoyed for its own sake’.
– Aesthetic experience is considered similarly to play however; it
does not essentially need an action to occur, may be found in the
appreciation of beauty in art or nature.
 NL Modern Theories…
– Sociability where it is realized through the creation of friendships, to be
in relationship of friendship is regarded as a fundamental form of good.
– Practical reasonableness connoting the employment of one`s
intelligence to solve problems of deciding what to do, how to live and
shaping one`s character. It involves that one seeks to bring an
intelligent and reasonable order into one`s one actions and habits and
practical attitudes.
– Religion; Finnis gives this term a wide meaning- recognition of, and
concern about, an order of things ‘beyond each and every man’. thus, it
involves the concern about an order of things that transcends our
individual interests. Also concerns with "all those beliefs that can be
called matters of ultimate concern; questions about the point of human
existence".
 NL Modern Theories…
• The Attributes of the Basic Good
– Objective
– Basic: the other values are considered subordinate
– Fundamental: there is no hierarchal order within the
framework of the basic good. They are common good
for all human beings
– Pre-moral: because they furnish the ‘evaluative
substratum of all moral judgments.
– Self-evident: the basic good are self-evident to
anyone of the age of reason.
 NL Modern Theories…
• Practical Reasonableness
-by this term, he means that there are some requirements of
practical reasonableness that would help structure the
pursuit of goods; they are
 A coherent plan of life-One should have a harmonious set of
purposes as effective commitments
 No arbitrary preference among values. One ought not to omit
or unreasonably exclude or exaggerate any of the basic human
goods.
 No arbitrary preference among persons. One should maintain
impartiality in regard to others and their interests.
 NL Modern Theories…
Detachment and commitment-One should be both open-
minded and committed to one`s project.
The relevance of consequences- One should not squander
opportunities through inefficiency. Actions should be
reasonably efficient.
 Respect for every basic value in every act- One should
avoid acts that achieve nothing but damage or impede one
or more of the basic forms of human good.
The requirement of the common good-One should act to
advance the interest of one`s community.
Following one`s conscience- One should not do what one
feels should not be done.
 NL Modern Theories…
• The basic goods and the methodological
requirements have been observed as to
present guidelines for one`s course of action.
And that the requirements tell human being
how to act in striving for the basic human
goods.
 NL Modern Theories…
• Attack
– That he has failed to ascertain any absolute value
objectively but has subjectively selected his own values.
For instance, he has not mentioned ‘pleasure’ or
‘money’ or ‘shelter’ or ‘food’ or ‘liberty’ in the list of
basic goods.
– That his theory might be significant to the legislators and
the public, but it has limited relevance to the judges who
have to follow the rules even if they do not agree with
the rules and find them as violating basic principles of
natural justice.
 Natural Law and Social Contract
• SC is not an agreement in a strict legal sense
• It implies an idea that individuals have
consented, either explicitly or tacitly, to
surrender some of their natural rights
(freedom)and submit to the authority of the
ruler or to the decision of a majority, in
exchange for protection of their remaining
rights.
 Natural Law and Social Contract..
• The essence of the SC is as follows
– In primeval times, individuals were born into a state
of nature which was generally anarchic.
– Man`s natural reason and his innate need to live
within society led him to create a society by
contracting with others.
– The essence of the SC is to surrender of some
natural rights and powers to a Sovereign in the
expectation that he would safeguard individuals and
protect them against oppression.
 Natural Law and Social Contract..
• Thomas Hobbes believes that in a state of
nature, a man’s life is full of fear and
selfishness. He describes human`s life as
‘solitary, poor, nasty , brutish and short’.
• To escape that bad condition (anarchy), man
chose to enter into SC, to surrender natural
freedom in order to create an orderly society.
 Natural Law and Social Contract…
• To effect SC, man entered into 2 types of Contract
which are irrevocable (one of Hobbes`s principles
of NL is that men must fulfill their promises)
– Pactum Unionis; man entered into a pact to respect
each other`s life and property. The main idea is to live
in peace (preservation and enjoyment of life)
– Pactum Subjectionis- it is a pact to obey the
government chosen by the people themselves. They
give up their rights and liberty to the social authority.
• John Locke (1632-1704) believes (in contrast to
Hobbes) that man`s state of nature is a state of
peace, goodwill, mutual assistance, and
preservation. However, this golden age had one
major problem, that is the property being
unsecured.
• Thus, people entered into SC to protect their natural
rights to life, liberty, property and enjoyment of
private rights in a civil society for common good.
• Jean-Jacques Rousseau (1712-1778) argues that
although man is born free, “everywhere he is in
chain’.
• He maintains that even man naturally (in golden
age) lived in freedom, equality, and happiness,
but with the advance of civilization, these virtues
disappeared. Thus, in search of peace and
happiness in life, man entered into the SC, and
surrendered his natural rights to the authorities.
 Summary

1. Natural law is universal, unchanging and everlasting; it is not limited by

time, space and geography;
2. That which is good is in accordance with nature but that which is evil is
contrary to nature. Therefore, natural law is good;
3. There exists an order in nature which is rational and which can be
known by man;
4. There are absolute values and ideals emerging therefrom, which serve
as the validity of laws. A law lacking in moral validity is wrong and
unjust. On this basis, natural law invalidates certain manifestations of
the positive law and provides an ideal towards which the positive law
should strive.
5. Existence of natural rights
6. That natural law is higher law to, and overrides
positive law. Senate and people cannot free us from
our natural obligations.
7. The principles of natural law are revealed to man
through his reasoning faculty
8. That natural law is immutable and of universal
application
9. That natural law could, neither be altered, repealed
nor abolished
• It is undeniable that many of the concepts that
have helped shape our society today were birthed
from natural law thinking. For instance, the
Fundamental Human Rights, embedded in Chapter
IV of the Constitution of the Federal Republic of
Nigerian, 1999 (as amended) was influenced by
natural law philosophy. Natural law is also said to
be the basis for the development of the concept of
equality and democracy across the globe.
• Natural law has acted as a lever of justice, progress
and reason, rather than as an instrument of
oppression and injustice.
• Natural law also serves as a test for the validityof
man-made laws. It has helped in providing the
philosophical basis for criticizing unjust laws. The
principles of natural justice; “Nemo Judex In Causa
Sua” and “Audi Alterem Patem” as well as the
repugnancy doctrine were greatly influenced by
natural law thinking.
• Natural law serves as a test for the validity of man-made
law.
• However, natural law philosophy stresses what ought to be
done (i.e. lex feranda) and not necessarily what is done (i.e.
lex lata).
• In practice, the judiciary interprets what the law is and not
natural law.
• Unless the principles of natural law are promulgated into
law, their violation cannot be legally punished. Also,
extremism in natural law must be discouraged to avoid its
negative character.