Natural law

• 1. Introduction

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  Natural law is the claim that some moral and legal standards are built into the nature of things and can be found by human reason, whatever any government decrees. The Roman historian Livy gives the idea a voice during the siege of Falerii. A man brings the Roman commander Marcus Furius Camillus a treacherous offer, and Camillus calls him a villain. Rome and the Faliscans, he says, have no formal treaty, but they share a fellowship rooted in natural instincts. There are rights of war, he adds, just as there are rights of peace.

  Camillus is speaking as a soldier, yet the idea he invokes has occupied philosophers, lawyers, theologians and revolutionaries across many centuries. Its Latin names are ius naturale and lex naturalis. It can mean a theory of ethics, of politics, of civil law or of religious morality. So where did it come from, and did the thinkers credited with it really believe it? Can a rule passed by a legislature be unjust and still count as law? And why have men as different as Cicero, Aquinas, Hobbes and Locke each claimed it for their own purposes?

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• 2. Greek Roots

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  The scholar John Wild observed that Plato never laid out an explicit theory of natural law, yet his picture of nature holds many of its ingredients. Plato saw an orderly universe resting on the Forms, with the Form of the Good at the summit. He called it "the brightest region of Being," and he held that anyone who sees it is led to act wisely. In the Republic, the ideal community is "a city which would be established in accordance with nature."

  Greek thinkers also drew a sharp line between nature on one side and law, custom or convention on the other. Laws differ from place to place, but what exists by nature ought to be the same everywhere. That made a "law of nature" sound more like a paradox than a plain fact. Socrates, Plato and Aristotle answered the relativism this distinction invited by insisting on natural justice, also called natural right.

  Aristotle is often named the father of natural law, but the title may owe much to Thomas Aquinas. Some scholars argue that Aquinas merged natural law with the natural right Aristotle describes in Book V of the Nicomachean Ethics. They add that his influence bent some early translations of those passages, which newer translations render more literally. Aristotle calls natural justice a branch of political justice, the scheme of distributive and corrective justice that the best political community would establish.

  His strongest evidence for a natural law appears in the Rhetoric. There he separates the particular laws each people sets up for itself from a common law that accords with nature. He points to Antigone in the play by Sophocles, who buried Polyneices despite a ban, and he says the act was just by nature. He quotes her words: "Not of to-day or yesterday it is, But lives eternal: none can date its birth." He also cites Empedocles, who urged people to kill no living creature, because the prohibition is not just for some and unjust for others.

  Many critics doubt that Aristotle meant any of this literally. In their reading, he only notes that appealing to a higher law can help in argument, especially when your own city's law works against your case. They add that he judged two of the three candidates in that passage to be wrong. His fatherhood of the tradition is therefore disputed. Aristotle even suggests in the Politics that the best regime might not rule by law at all.

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• 3. Stoics and Cicero

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  The English historian A. J. Carlyle found the shift from Aristotle to Cicero and Seneca "so startling in its completeness" that he singled out one example. That example was the equality of human nature. Charles H. McIlwain agreed, calling the idea of human equality the Stoics' most profound contribution to political thought. The move from natural justice to a true natural law is usually credited to these Stoics, and it arrived as large empires and kingdoms rose in the Greek world.

  The Stoics believed God is everywhere and in everyone, so each person carries a divine spark. The universe, in their view, had a rational and purposeful design. Natural law was the means by which a rational being could live in harmony with that design, and it inspired actions that accorded with virtue. Unlike Aristotle's higher law, it made no fuss over whether its source was natural or divine.

  Cicero carried the idea into Roman thought. In De Legibus he wrote that justice and law both spring from what nature has given humanity. Natural law, for him, obliges each person to contribute to the good of the wider society. He argued that "wicked and unjust statutes" are anything but laws, since the very word implies choosing what is just and true.

  In De Re Publica he gave the idea its most famous form. True law, he wrote, is right reason in accordance with nature, and "It is not one thing at Rome, and another thing at Athens." Neither the people nor the senate can absolve anyone from it. It is eternal and immutable for all nations and for all time.

  Cicero's reach was enormous. His conception of natural law passed to later centuries through Isidore of Seville and the Decretum of Gratian, and Aquinas quoted him on nature and custom as sources of a society's laws. The Renaissance historian Leonardo Bruni praised him for carrying philosophy from Greece to Italy. Elizabethan England's legal culture, as shown by Sir Edward Coke, was steeped in his rhetoric, and the Scottish philosopher Francis Hutcheson admired him as a student at Glasgow.

  Among early Americans he took pride of place. The British polemicist Thomas Gordon folded him into a radical tradition that crossed the Atlantic, and the legal scholar James Wilson quoted his description of an eternal, universal law. John Adams made him a model of public service and wrote that the world had never produced a greater statesman and philosopher in one man. Thomas Jefferson met Cicero as a schoolboy learning Latin, kept reading his letters all his life, and called him "the father of eloquence and philosophy."

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• 4. Aquinas and the Church

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  Paul's Epistle to the Romans is generally treated as the scriptural authority for a Christian natural law, a law endowed in all people rather than revealed, as the law was to Moses. Augustine of Hippo, the most notable of the early Western Church Fathers, tied natural law to humanity's state before the Fall. Life by unbroken human nature was therefore no longer possible, and people needed healing through the divine law and grace of Jesus Christ. Augustine was also among the first to ask whether people must obey unjust laws.

  In the twelfth century, Gratian equated natural law with divine law. Albertus Magnus took up the subject a century later, and his pupil Thomas Aquinas, in the Summa Theologica, restored natural law to an independent footing. For Aquinas it was the rational creature's participation in the eternal law. Because human reason cannot fully grasp the eternal law, it still needs revealed divine law as a supplement.

  Aquinas taught that every human law must be judged by its conformity to natural law. An unjust law keeps only the appearance of law, because it is properly enacted and enforced. In his phrase it is a "perversion of law." Natural law now judged the moral worth of laws and also helped decide what they meant, which planted a seed of tension with tyrants.

  At the center sits one primary precept: "Good is to be sought, evil avoided." Aquinas held that such general principles can never be blotted out of the human heart. The secondary, more detailed precepts can be, through evil persuasion or corrupt customs. Any rule that helps people live up to the primary precepts can serve as a secondary one. Drunkenness is wrong because it destroys the reason that makes humans rational animals, and theft is wrong because it damages the social relations humans naturally need.

  Motive matters as much as deed. Helping an old lady across the road to impress someone is wrong, because the interior act is bad. The right motive must coincide with the cardinal virtues of prudence, justice, temperance and fortitude, and with the theological virtues of faith, hope and charity. Lacking even one, Aquinas said, undermines the ability to choose morally. A person with justice, prudence and fortitude but no temperance will drift from the moral path through desire for pleasure.

  In the 16th and 17th centuries the School of Salamanca built on Aquinas and developed the first modern approach to natural law. It greatly influenced Hugo Grotius. Leonardus Lessius held that natural law is immutable because it flows from rational nature, unlike positive law, which flows from divine or human will. Domingo de Soto argued that theologians must test the moral foundations of civil law, and he criticized Spanish laws on charity for violating the fundamental rights of the poor. Juan de Mariana held that taxes and changes to the money supply needed the people's consent.

  The same thinking shaped contract law. Only in the 16th century did civil law accept that pure consent makes a contract binding. Pedro de Oñate celebrated the result, writing that "To the contracting parties, liberty has very wisely been restored." Pope Leo XIII later urged clergy, in the encyclical Sapientiae Christianae, to examine modern legislation against higher norms, reviving the Salamanca claim.

  The Church still teaches this view. The Catechism describes natural law as engraved in every soul, a command of human reason that depends on the voice of a higher reason. Some Protestants kept it too. The Anglican theologian Richard Hooker adapted Thomist ideas into five principles: to live, to learn, to reproduce, to worship God and to live in an ordered society. C. S. Lewis later set out the same tradition in Mere Christianity and The Abolition of Man.

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• 5. Islamic and Irish Echoes

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  The medieval polymath Abu Rayhan al-Biruni read natural law as the survival of the fittest. He argued that human antagonism could be overcome only by a divine law, sent through prophets. The Ashari school, the largest school of Sunni theology, takes a similar line. Its thinkers treat all laws as products of subjective attitudes shaped by culture, and they see revelation as replacing relative human law with one divine law. Because God is subject to no human convention, He may command whatever He wills.

  The Maturidi school, the second-largest in Sunni theology, and the Mu'tazilites held that an objective law exists which humans can comprehend. Abu Mansur al-Maturidi said the mind could know God exists, and could know the major forms of good and evil, without revelation. His example was stealing, which reason alone shows to be evil because people work hard for their property. He also counted killing, fornication and drunkenness among the discernible evils.

  Averroes, also called Ibn Rushd, wrote in his commentary on Plato's Republic that the mind can recognize the unlawfulness of killing and stealing. From this he linked reason to the five maqasid, the higher intents of Islamic sharia: protecting religion, life, property, offspring and reason. His Aristotelian commentaries influenced the later Averroist movement and the writings of Aquinas. Ibn Qayyim al-Jawziyya agreed that reason can tell great sins from good deeds. Like Ibn Taymiyah, though, he insisted that revelation must be followed even when it seems to contradict reason.

  Islamic law has its own counterpart in the concept of istislah. Natural law calls good whatever is self-evidently good for the fulfillment of the person. Istislah instead calls good whatever relates to a short list of basic goods. Al-Ghazali listed them as religion, life, reason, lineage and property, and others add honor.

  Ireland offers a separate case. The early Irish law collection An Senchus Mor mentions recht aicned, or natural law, in several places, and the concept predates European legal theory. The scholar Neil McLeod identifies two ideas that law had to match: fir, meaning truth, and dliged, meaning right or entitlement. A third term, corus, means law in accordance with proper order. The laws were written in an archaic dialect called Berla Feini, so difficult that a trainee needed about 20 years to become a learned Brehon.

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• 6. English Common Law

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  Henry de Bracton, who died in 1268, took the imperial Roman maxim that the will of the prince is law and turned it on its head. His king, he insisted, stands under the law. The scholar Heinrich Rommen remarked on how stubbornly English common law kept the natural law and equity it absorbed in the Catholic Middle Ages. Bracton called justice the fountain-head of all rights, and he borrowed the twelfth-century jurist Azo's definition: "Justice is the constant and unfailing will to give to each his right." The young Thomas Jefferson studied Bracton's work as the second legal treatise of his apprenticeship.

  Sir John Fortescue, who died around 1476, stressed the supreme importance of the law of God and of nature. He defined law as "a sacred sanction commanding what is virtuous and forbidding the contrary." Christopher St. Germain's The Doctor and Student, a classic of English jurisprudence, was essentially Thomist. It quoted Aquinas's definition of law as an ordinance of reason made for the common good.

  Sir Edward Coke towered over them all, and his fame crossed the ocean. For the American revolutionary leaders, "law" meant Coke's custom and right reason. In Calvin's Case of 1608 he reported that "The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction." The judges found four things. A subject's allegiance to the king is due by the law of nature. The law of nature is part of the law of England. It came before any judicial or municipal law. And it is immutable. To support these findings the judges cited Aristotle, Cicero and the Apostle Paul, along with Bracton, Fortescue and St. Germain.

  The principle outlived Coke. A court in the thirteenth century held that the law of nature is the ground of all law. In 1824 an English court ruled that its own law rested on the law of nature and the revealed law of God, and that no right inconsistent with either could be recognized.

  Sir Matthew Hale followed Coke as the most famous common law jurist of the seventeenth century. His treatise on natural law circulated among eighteenth-century English lawyers, survives in three manuscript copies, and was finally published in 2015 as Of the Law of Nature. He held that human law "cannot forbid what the Law of Nature injoins." He leaned on Plato, Aristotle, Cicero, Seneca, Epictetus and Paul, and he drew on Grotius and Suarez. He disliked, however, how Hobbes had shrunk natural law down to self-preservation.

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• 7. Hobbes and Locke

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  Thomas Hobbes counted nineteen laws of nature, and he meant them as a direct assault on what came before. By the seventeenth century the medieval view, which tied nature to purpose, was under heavy criticism. Hobbes built on something people could agree about. They disagree about happiness but converge on their fears, above all violent death at another's hands. Natural law became the conduct of a rational person seeking to survive. He defined it as a rule found out by reason that forbids a man to do what destroys his life.

  His first law says each man should seek peace as far as he can hope to obtain it. The second says he should be willing, when others are too, to lay down his right to all things and settle for as much liberty as he would allow others. The ninth demands that everyone acknowledge others as equals by nature, and breaking it is called pride. The seventeenth holds that no man is a fit arbitrator in his own cause.

  Behind these laws stood a harsh picture of the state of nature. There, Hobbes wrote, every man has a right to everything, even to another's body. Life in this war of every man against every man is "solitary, poore, nasty, brutish, and short." He rejected Cicero's view that people join together through an implanted social spirit. They band together, he said, only to escape that misery. He even inverted the Golden Rule into a prohibition: "Do not that to another, which thou wouldst not have done to thy selfe." Because the sovereign's decisions need not rest on morality, Hobbes's thinking gave birth to legal positivism, which Jeremy Bentham later refined.

  The English cleric Richard Cumberland answered with a lengthy and influential attack. In the eighteenth century he stood beside Alberico Gentili, Grotius and Pufendorf among the founders of the modern school of natural law. His Treatise of the Laws of Nature opens by reducing every law of nature to one: "Benevolence toward all Rationals." He cast the quarrel as a replay of Cicero's debate between Stoics, who thought nature supplies an objective morality, and Epicureans, who thought morality was human and self-interested. Shaftesbury and Hutcheson were partly inspired by him.

  Hugo Grotius pushed in another direction. He wrote that even an omnipotent being cannot change natural law, which would hold even if there were no God, the argument known as etiamsi daremus. The German church historians Ernst Wolf and M. Elze disputed this and found a theological basis in his thought. Samuel Pufendorf gave natural law a theological foundation outright.

  John Locke used natural law throughout his Two Treatises of Government, though scholars debate whether he sided with Aquinas, filtered through Hooker, or with Hobbes's reinterpretation. He turned Hobbes around. If a ruler violated natural law and failed to protect life, liberty and property, the people could overthrow the state and create another. Jeremy Waldron notes that Locke's politics rested on Protestant Christian assumptions, and Locke drew human equality from the creation story in Genesis. Because all are created equally free, governments need the consent of the governed.

  That language reached the Declaration of Independence, ratified by the Second Continental Congress in Philadelphia on the 4th of July 1776. It speaks of "the Laws of Nature and of Nature's God" and of unalienable rights to "Life, Liberty and the pursuit of Happiness." Some early American lawyers and judges thought natural law too vague to ground concrete rights. Still, it served as authority in some court decisions and legislative acts. The scholar Robert Lowry Clinton argues that the Constitution rests on common law, which in turn rests on a classical natural law foundation.

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• 8. Modern Disputes

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  The French writer Pierre Charron offered a blunt secular test in his book De la sagesse, published in 1601. A real natural law, he argued, would command universal respect, because everyone would obey whatever nature truly ordered. Instead, no custom exists that many nations do not reject, and no practice seems unnatural to some that others do not approve. Natural law has had to answer that objection ever since.

  The Nobel-winning economist F. A. Hayek offered a different defense. In his account, "natural" first described an orderliness that no deliberate human will produced, the spontaneously grown as against the designed. He pointed to the Spanish scholar Luis Molina, whose "natural" price arose from the thing itself, regardless of decrees. Hayek tied this outlook to Adam Smith, David Hume and Adam Ferguson. He warned that if law is only design, the designer's decree is just by definition, and that invites totalitarianism.

  In jurisprudence the dividing line is clear. A legal positivist says a law can be unjust and still be a law. A natural law jurist says an unjust norm is legally deficient. Natural law can mean that just laws are discovered rather than created, that they emerge as courts resolve conflicts, or that law's content cannot be fixed without moral principles. William Blackstone thought natural law could help determine the common law's content and decide cases of equity, though it was not identical with English law. Bentham, the great positivist, was also a staunch critic of the common law.

  A citation study found that the most cited authors on the subject are, in order, Aquinas, John Finnis, John Locke, Lon Fuller, Ronald Dworkin and James Wilson. The Australian John Finnis, a professor at Oxford, is the most prominent living natural law jurist. He derives law from seven basic goods that he considers self-evident: life, knowledge, play, aesthetic experience, sociability, practical reasonableness and religion. Germain Grisez, Robert P. George and Joseph Boyle built on similar ground in a school called New Natural Law. They hold that basic goods cannot be measured against one another. Murray Rothbard, for his part, called a natural law discoverable by reason a standing reproach to blind custom and arbitrary state power.

  The record also holds a darker side. Lord Mansfield, William H. Seward and Lemuel Shaw insisted that natural law was incompatible with slavery and could be introduced only through positive law. Thomas R. R. Cobb misused natural law to defend slavery and the slave trade. Natural law has also been invoked to criticize homosexuality.

  The tension between natural and positive law still shapes international law. Supreme Court justices Clarence Thomas and Neil Gorsuch count among the idea's present-day defenders in the United States.

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