The School of Natural Law
In the seventeenth and eighteenth centuries, European legal thought moved in a new direction under the influence of the School of Natural Law.
The idea of natural law has its origins in ancient Greek philosophy, but was given a more concrete form by the Stoic philosophers of the Hellenistic and early Roman eras.
As previously noted, under the influence of Stoicism, Roman jurists treated natural law as a body of law equally observed by all peoples, and therefore also called it ius gentium.[798] Stoic philosophy furnished the terminology on the basis of which the early Church Fathers were able to formulate the first conceptions of the Christian natural law and to impart them to the world of their time. The Church Father Aurelius Augustinus (ad 354-430) promoted the idea of a divine origin of law and founded a theory that contributed a great deal to the transition from ancient philosophy to Christian jurisprudence. Augustinus held that the lex naturalis moralis is imprinted on the soul, heart, and mind of humankind. Nonetheless, he recognized that temporal or human positive laws are necessary in order that humankind might make manifest that which has been obscured through sinfulness and vice.The greatest figure in medieval theology is, without doubt, Thomas Aquinas (1225-1274). Aquinas’s work is a blending of earlier traditions: the philosophical thought of Aristotle[799] and the theology of the early Church Fathers, especially that of Augustinus. In his most important work, the Summa theologiae, a manual for students of theology, Aquinas defines natural law as man's participation in God's eternal law (or God's purpose in creation).
Human beings, like all other entities in the universe, are subjects upon which the eternal law moves. However, the crucial difference between human beings and the rest of the created order is freedom of choice. This means that people do not necessarily behave in accordance with the eternal law. Thus, two distinct sources of guidance are provided for our benefit: divine law and natural law. These operate by two different means namely, revelation, that is God choosing to make known His will in the Holy Scriptures, and reason respectively. But if we can all know natural law through reason—and we all have reason—how can we account for disputes over fundamental moral issues or differing understandings of right and wrong at different times? Aquinas explains this by the process through which particular natural law precepts are deduced from general principles. He links this process of deduction both with human inclination and with the nature of reason itself. Reasoning about morality is practical rather than speculative. The fact that the conclusions of practical reason are not equally known by everyone does not affect their truth. Furthermore, in the process of application of practical reason to more and more situations, inevitably exceptions to general principles will have to be made and so the result may be variations in the natural law over time and place. Thus, while the primary precepts of natural law (such as the promotion of good and avoidance of evil) are unchanging, the secondary precepts of natural law are variable in content. But if we have Natural Law discoverable by reason why do we need human law? Aquinas defines human law to be an ordinance of reason for the common good, made by him who has care of the community, and explains the need for such law as arising both from unequal knowledge of natural law and the fact that knowledge is not the same as conduct: people are free to disobey. Hence, human law can help train us to act in accordance with natural law.[800] Although Aquinas sees human law as deduced from natural law, he recognises that because this deduction depends on practical reason it can lead to more than one possible conclusion. Variations in human laws between societies and over history are partly explicable by variations in the secondary natural law precepts from which they are deduced and partly because the process of deduction allows a measure of freedom and creativity. The doctrines of Aquinas dominated the theological, philosophical and intellectual landscape of Western Europe until the sixteenth century, when the traditional ideas about man and his relationship with God and the world began to be challenged by Humanism, Protestantism and the discovery of the New World. From this period, the natural law discourse began to untie itself from its associations with scholastic theology, and to increasingly use the language of reason. Of particular importance in this development was the work of the Dutchman Hugo Grotius (1583-1645), also known as the founder of modern international law.[801]In his famous work De iure belli ac pacis (1625)[802] Grotius expounded the idea of a purely secular natural law freed from all ecclesiastical authority. He stated that even if we were so bold as to assume that there is no God, or that God is not interested in human affairs, there would still be valid natural law.[803] This freeing of natural law from its religious bonds made it possible for him to place the law outside the bitter opposition that the conflict in matters of religion had engendered since the time of Reformation and Counter-Reformation. What he really did was to return to the common and rational basis of all law, which the Humanist thinkers generally recognized through their rediscovery of the Stoics. It is on this basis that Grotius developed his theory of international law as a law binding all nations by reason. His starting-point in developing out of natural law a set of usable principles for the mutual relations of states (and, so far as applicable, individuals) was the notion that man is by nature sociable: “Among the traits characteristic of man is an impelling desire for society, that is, for the social life _ not of any and every sort, but peaceful, and organized according to the measure of his intelligence, and with those of his own kind.”[804] “The maintenance of the social order... which is consonant with human understanding, is the source of law properly so called.
To this sphere of law belongs the abstaining from that which is another’s, the restoration to another of anything of his which we may have, together with any gain which we may have received from it; the obligation to fulfil promises, the reparation of a loss incurred through our fault, and the infliction of penalties on men according to their deserts.”[805] As the above statement suggests, Grotius viewed the law of nature as essentially the injunction to maintain peace by way of showing respect for the rights of other people.[806] He notes, asserting his own personal faith, that even though this law stems from man’s inmost being, it is still deservedly attributed to God, whose will is that the relevant principles should reside within us.[807] And so, summarizing his view, though again without prejudice to the assumption that God might not exist, he writes that “natural law is the command of right reason, which points out, in respect of a particular act, depending on whether or not it conforms with that rational nature, either its moral turpitude, or its moral necessity; and consequently shows that such an act is either prohibited or commanded by God, the author of that nature.”[808] Notwithstanding his repeated statement of his own Christian faith, his hypothesis was to be decisive in freeing the doctrine of natural law from the bonds of theology. It should be noted, further, that Grotius employed the comparative method to place his natural law doctrine on an empirical footing. Believing that the universal propositions of natural law could be proved not only by mere deduction from reason but also by the fact that certain legal rules and institutions were recognized in many legal systems, he used legal materials from diverse countries and ages to illustrate and support his system of natural law.The idea of a rational natural law was developed further by the German philosophers Samuel Pufendorf (1632-1694), Christian Thomasius (1655-1728) and Christian Wolff (1679-1754).
For Pufendorf, natural law is purely the product of reason and, as such, has no connection with divine revelation. A fundamental principle is: “Let no one act towards another in such a way that the latter can justly complain that his equality of rights has been violated.”[809] More concrete rules derived from reason and thus nature are: not to harm others, and, where harm is caused, to make reparation; to treat others as having equal rights by reason of the dignity of all human beings; to assist others as far as one is able to do so; and to carry out the obligations one has assumed.[810] Pufendorf was the first modern legal philosopher who elaborated a comprehensive system of natural law comprising all branches of law.[811] His work exercised an influence on the structure of later codifications of law, in particular on the ‘general part’ that is commonly found at the beginning of codes and in which the basic principles of law are laid down.Like other natural law thinkers, Christian Thomasius draws attention to the shift from a iurisprudentia divina, a theological mode of legal study, to a doctrine of law whose foundation lies in reason and in nature. A central theme in Thomasius’s natural law theory is justice (iustum): the forbidding of any transgression against the rights of others, in service of which the state is entitled to exercise the right of coercion. This is distinguished from the demands of honesty (honestum) and decency (decorum). In this way, Thomasius separated the domain of law from that of morality. Drawing on the work of Leibniz and Pufendorf, Wolff proposed a system of natural law that he alleged to make law a rigorously deductive science. His system exercised considerable influence on the eighteenth and nineteenth century German codifiers and jurists, as well as on legal education in German universities.[812]
The School of Natural Law challenged the supreme authority that medieval jurists had accorded to the codification of Justinian.
The challenge proceeded on the grounds that the Corpus Iuris Civilis was an expression of a particular legal order whose rules, like the rules of any other system of positive law, must be assessed in the light of norms of a higher order that were eternal and universally valid—the norms of natural law. Natural law was construed as rational in its content, since its norms could be discovered only by the use of reason, logic and rationality. It was deemed as common to all men of all times with a higher moral authority than any system of positive law. From this perspective, the practitioners of natural law rejected certain ‘irrational’ features of the Roman system revealed by the Humanists (such as the remnants of the old Roman formalism detected in the Corpus Iuris Civilis) on the basis they were specific to the Roman system of social organization and restricted in time. At the same time, however, they recognized that Roman law contained a large number of rules and principles that reflected or corresponded to the precepts of natural law—rules and principles that they regarded as the product of logical reasoning on the nature of man and society rather than the expression of the legal development of the Roman state. The Roman doctrine of ius gentium and ius naturale, in particular, seemed to lend support to their own theories. Many legal principles espoused by Roman jurists appeared as suitable materials to utilize for building a rational system of law. The Natural Law School, with its system building approach to law, inspired a renewed interest in codification as a means of integrating the diverse laws and customs of a national territory into a logically consistent and unitary system.[813]
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