Study and Revival of Natural Law in 19th Century

Abstract

The concept of has taken several forms. The idea began with the ancient Greeks' conception of a universe governed in every particular by an eternal, immutable and in their distinction between what is just by nature and just by convention. Stoicism provided the most complete classical formulation of law. The Stoics argued that the universe is governed by reason, or rational principle; they further argued that all humans have reason within them and can therefore know and obey its law. Because human beings have the faculty of choice (a free will), they will not necessarily obey the law; if they act in accordance with reason, however, they will be following nature. Christian philosophers readily adapted Stoic theory, identifying with the of God. For Thomas Aquinas, is that part of the eternal of God (the reason of divine wisdom) which is knowable by human beings by means of their powers of reason. Human, or positive, is the application of to particular social circumstances. Like the Stoics, Aquinas believed that a positive that violates is not true law. With the secularization of society resulting from the Renaissance and Reformation, theory found a new basis in human reason. The 17th-century Dutch jurist Hugo Grotius believed that humans by nature are not only reasonable but social. Thus the rules that are to them — those dictated by reason alone — are those which enable them to live in harmony with one another. From this argument, by the way, Grotius developed the first comprehensive theory of international law. Natural theory eventually gave rise to a concept of natural rights. John Locke argued that human beings in the state of nature are free and equal, yet insecure in their freedom. When they enter society they surrender only such as are necessary for their security and for the common good. Each individual retains fundamental prerogatives drawn from relating to the integrity of person and property (natural rights). This theory provided a philosophical basis for both the American and French revolutions. Thomas Jefferson used the theory to justify his trinity of inalienable rights which were stated in the United States Declaration of Independence. During the 19th century theory lost influence as utilitarianism and Bentham’s, positivism, materialism, and the historical school of jurisprudence became dominant. In the 20th century, however, theory has received new attention, partly in reaction to the rise of totalitarianism and an increased interest in human throughout the world. With this contemporary interest in mind, let's now turn to our attention to the theory as understood by the tradition of Classical Realism. In its simplest definition, is that unwritten law that is more or less the same for everyone everywhere. To be more exact, is the concept of a body of moral principles that is common to all humankind and, as generally posited, is recognizable by human reason alone. Natural is therefore distinguished from — and provides a standard for — positive law, the formal legal enactments of a particular society. Since must always be some dictate of reason, also will be some dictate of reason. In fact, it is the discovered by human reason. Our normal and grasp of the is affected by reason, that is, by the thinking mind, and in this service reason is sometimes called We, in all our human acts, inevitably see them in their relation to the law, and we mentally pronounce upon their agreement or disagreement with the law. Such a pronouncement may be called a judgment of The norm of morality is the as applied by conscience. Lastly, we can say that the is the disposition of things as known by our human reason and to which we must conform ourselves if we are to realize our proper end or good as human beings. To sum it up, then, we can say that the law: • is not made by human beings; • is based on the structure of reality itself; • is the same for all human beings and at all times; • is an unchanging rule or pattern which is there for human beings to discover; • is a means by which human beings can rationally guide themselves to their good. It is interesting to note that virtually everyone seems to have some knowledge of even before such knowledge is codified and formalized. Even young children make an appeal to fair play, demand that things be fair and square, and older children and adults often apply the golden rule. When doing so, they are spontaneously invoking the law. This is why many proponents of the theory say it is the which is written upon the hearts of men.