JURISPRUDENCE AND LEGAL THEORY II STUDY NOTES
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1 JURISPRUDENCE AND LEGAL THEORY II STUDY NOTES TOPIC 1 THE PROVINCE OF NATURAL LAW CHAPTER ONE CONTENTS 1.0 Introduction 2.0 Objectives 3.0Main Content 3.1Meaning of Natural Law 3.2Essential Features of Natural Law 4.0Conclusion 5.0Summary 1.0INTRODUCTION Of all Schools of jurisprudence, natural law school stands out. This is so not because it is most important of all schools but on account of fact that it is about only ory that is sustained by idealism. In or words, naturallaw exists not in material world but in world of ideas. All or schools have one or more negative things to say about failure of natural law to meet test of science, that is, its inability to be demonstrated scientifically. There is a dearth of consensus on definition and description of natural law. Consequently, different people perceive natural law differently. Thus, while classical philosophers like Plato, Aristotle, St. Augustine, and Thomas Aquinas offer similar definitions of natural law, modern natural lawyers attribute to natural law what classical natural law orists could not have probably envisaged. In this Unit, we shall examine meaning of natural law from perspectives of ancient and modern times. 2.0 OBJECTIVES At end of this Unit, you will be able to: Demonstrate historical origin of natural law; and Analyse ancient and modern meanings of natural law. 3.0MAIN CONTENT Page 1
2 3.1Meaning of Natural Law According to Lloyd in his Introduction to Jurisprudence, term natural law has been variously applied by different people at different times; 1. Ideals which guide legal development and administration; 2) A basic moral quality in law which prevents a total separation of is from ought ; 3) method of discovering perfect law; 4) The content of perfect law deducible by reason. According to John Finnis a ory of natural law claims to be able to identify conditions and principles of practical right-mindedness, of good and proper order among men and in individual conduct. According to him, natural law consists of two sets of principles: first consisting of certain basic values that are good for human beings, second consisting of requirements of practical reasonableness. These values are known because y are selfevident. In opinion of Dias, natural law thinkers includes a moral element in ir conception of law since y think of it as an indispensable factor in continued existence and functioning of law. Positivists exclude a moral element since y are mindfull of necessity of having clear-cut means of identifying laws for practical purposes of present, unclouded by impalpable moral considerations. Lloyd expresses view that natural law argues that what is law is based on a higher law dictated by reason and so is also what law ought to be, natural law is thought to acquire a sanctity that puts it beyond question. The learned author contends that despite different doctrines of natural law, what has remained constant is an assertion that re are priciples of natural law. Views As to content of se principles have sometimes diverged but essence of natural law may be said to lie in constant assertion that re arew objective moral principles which depend upon nature of universe and which can be discovered by reason. These principles constitute natural law. This is valid of necessity, he argued, because rules governing correct human conduct are logically connected with immanent truths concerning human nature. Natural law is believed to be a rational foundation for moral judgment. Salmond opines that natural law is idea that law consists of rules in accordance with reason and nature. Ordinary human law is only truly law in so far as it conforms to se principles. These principles of justice and morality constitute natural law. Man should live according to nature and that since Page 2
3 distinctive feature of man s nature was his endowment with reason and refore he should live according to dictates of reason. Natural law is that branch of law that is variously defined or described as law of nature, higher law, eternal law, divine law, etc. While defining or explaining scope of natural law, Roman orator, Cicero, said as follows: True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neir have any effect on wicked. It is a sin to try to alter this law, no r is it allowable to attempt repeal any part of it, impossib to and it is le to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And re will not be different laws at Rome and at Ans, or different laws now and in future, but one eternal and unchangeable law will be valid for all nations and all times, and r e will be one master and ruler, that is, God, over us all, for he is author of this law, its promulgator, and its enforcing judge. Whoever is disobedie nt from himself and denying is fleeing his huma n nature, and by reason of this very penalties, fact he will suffer worst even if he escapes what is commonly considered punishment. 1 According to Burlamqui in his Principles of Natural Law (1751): Natural law comprises rules which so necessarily agree with nature and state of man that, without observing ir maxims, peace and happiness of society can never be preserved. They are called natural laws because a knowledge of m may be attained merely by light of reason, from act of ir essential agreeableness with constitution of human nature: while, on contrary, positive or revealed laws are not founded upon general constitution of human nature but only upon will of God: though in or respects such law is established upon very good reason and procures advantage of those to whom it is silent. 2 Page 3
4 Therefore, natural law ory offers or provides an insurance against chaos and disorder common with human society. Recall that in 1996, International Law Commission, a UN agency charged with responsibility of codifying and of progressively developing international law released Draft Code of Crimes Against Peace and Security of Mankind. Amongst or things, Code enumerated international crimes to include aggression, genocide, crimes against humanity, crimes against United Nations and associated personnel, and war crimes. To Kelsen, in his What is Justice? (1957): The natural law doctrine undertakes to supply a definitive solution to eternal problem of justice, to answer question as to what is right and wrong in mutual relations of men. The answer is based on assumption that it is possible to distinguish between human behaviour which is unnatural, hence contrary to nature and forbidden by nature certain rules which provide an altoger adequate prescription for human behaviour Nature is conceived of as a legislator, supreme legislator. 3 Note that Radbruch a positivist who witnessed horror and destruction wreaked by German Reich on its neighbours had to fall out with his first faith in preference for natural law. According to him in his Five Minutes of Legal Philosophy (1945): There are principles of law that are stronger than any statute, so that a law conflicting with se principles is devoid of validity. One calls se principles natural law or law of reason work of centuries has established a solid core of m. Natural law could be synonymously called law of nature, divine law, eternal law, etc. Natur al law ories ar e basicall ologic secular Theologica ories rely on allusion y al or. l to God, Holy Books and prophets, in arguing existenc for e or universe as being validity of natural law. These orie s regard founded and ruled by some deity, God, etc. The creator has laid down rules and principles by which universe (including earth inhabited by beings human ) is ordered and regulated. It is from that morals or conscience of humanity derive. On se principles or hand, Page 4
5 secular ories depend on human reason (or will). They canvass view that natural law exists in rational human beings who are created by God. Because y are creatures of God, y possess rational idea, reasoning capacity to know what is good and what is bad. They have intellec t even without assistance of anor person to discover natural law or law of nature. Guided by ensuing knowledg e, he is able his to order life, according to his choice, in a moral way or in an immoral manner. In or words, secular orie s demystify natural law by detachin g God refrom, that is, by positing that natura l law will or can be independent of God. Thus, on a rar extreme note, Hugo said Grotius that would re be natura l law even if re were no God. SELF-ASSESSMENT EXERCISE 1 What is natural 3.2 Essential Features of Natural law? Law said so far, it is possible to distil or extract essentials of From all that we have natural law as follows: (a) Natural law is universal, unchanging and everlasting; (b) That which is good is in accordance with nature but that which is evil iscontrary to nature. Therefore, natural law is good; (c) There exists an order in nature which is rational and which can be known by man; (d) There are absolute values, and ideals emerging refrom, which serve as validity of laws. A law lacking in moral validity is wrong and unjust. On this basis, natural law invalidates certain manifestations of positive law and provides an ideal towards which positive law should strive. This is a SAMPLE (Few pages have been extracted from complete notes:-it s meant to show you Page 5
6 topics covered in full notes and as per course outline. Download more at our websites: To get complete notes eir in softcopy form or in Hardcopy (printed & Binded) form, contact us on: Call/text/whatsApp / Get news and updates by liking our page on facebook and follow us on Twitter Sample/preview is NOT FOR SALE Page 6
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