Abstract
The idea of the two laws, one resting solely on human authority and the other claiming divine or natural origin and therefore entitled to supremacy over mere human law, has a long and chequered history, and still possesses vitality in the 21st century. Human rights infringements by positive law, under the enactments of the Choice of Pregnancy Act 92 of 1996 and the South African Schools Act 84 of 1996, have led to a revival of natural law thinking. The aim of this paper will be to explore briefly the significance of natural law thinking in the past, to establish the forms in which it manifests itself in the present day, and to attempt to evaluate the contribution it may be capable of making to the problems of law in the modern world. Primarily, a theory of natural law needs to be undertaken to assist the practical reflections of those concerned to act, whether as judges, statesmen, citizens. The principles of natural law are traced out not only in religion, moral philosophy, and/or ethics and “individual” conduct, but also in political philosophy and jurisprudence, in political action, adjudication, and the life of the citizen. They require that authority be exercised, in most circumstances, according to the manner conveniently labelled as the Constitution or the “rule of law” and with due respect for human rights which embody the requirements of justice.
Highlights
Natural law is almost as old as philosophy itself
Positive law is to be obeyed but to the extent that it is concordant with natural law precepts
It is evident that positive law enactments such as the Choice on Termination of Pregnancy Act and the South African Schools Act are under the context of natural law unjust
Summary
Natural law is almost as old as philosophy itself. It can be described as a sort of recurring decimal in the history of thought. It had its great moments and its moments of eclipse, its flowering times and barren times, catabolic and anabolic periods. Natural law should be shown to be sound and relevant in the conditions of our century. Values like the right to life, dignity of the human person, the importance of personal freedom, toleration and the importance of the common good, were brought to the fore by the natural law theories. There must be something beyond the positive law to which an appeal can be made
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