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Comparative Jurisprudence Historical origins of natural law in chthonic societies (bound with
morality; timeless, universal)
Law became eventually conceived in the modern liberal West as a product of
human rationality and effort rather than arising from divine power or will. This
does not mean that religion became irrelevant in European legal thought, but
Western legal theory has clearly privileged law, as a human creation, over the
competing claims of religion, in a way that most evidently Islamic jurisprudence is
not willing to contemplate to that extent.
Traditional natural law theories in outline (3.1)
Historically, it is not the prerogative of the West to have thought about legal
theories, the origins of law, its morality, and its potential for abuse since ancient
times. These universal questions have arisen everywhere in human societies,
from earliest times, but within quite specific cultural context, giving rise to
different, culturally conditioned answers. According to Blackstone, natural law is
dictated by God himself and is of course superior in obligation to any other. It is
binding over all the globe in all countries and at all times.
Greek legal philosophy (3.2)
Pre-Sophists: King receives law from Gods; Nature = order of
things
Greek legal philosophy thought that the whole Universe was conceived as a
Cosmos or ordered whole, governed by a creative force called by them Nature of
God or the Universal Law. To the Stoics, life in accordance with Nature was what
was meant by Virtue, for Man’s individual reason should also be a reflexion of the
Universal Reason which they held to be the divine element in the Universe and
the final standard of conduct. It is so that the king does not make the laws, he
receives laws from the Gods and thus acts ‘god-inspired’ and decides in
accordance to that inspiration.
• Sophist critique: Human made law serves interests of rulers
The Sophists explicitly recognised the relativity and subjectivity of human ideas
and perceptions. Observing the unsatisfactory legal realities around them, they
argued that both the makers and the subjects of law just acted in self-interest,
and therefore law was not founded on universal principles, but was subject to
multiple manipulations by rulers and subjects.
• Socratic-Platonic-Aristotelian: Man as part of Nature & capable of
dominating Nature through reason
Socrates and Plato emphasised the existence and immutable nature of basic
moral principles, laying foundations for the later dominant uniform sing strand of
European natural law. Like Aristotle they argued that man is part of nature
and as such, he is capable of forming his will in accordance with the insight of his
reason. Thus, man has – as a part of the universe and subject to its
universal laws – at the same time the potential to dominate nature.
Ancient Greeks were well aware of the potential for unjust laws and abuse of
legal processes.
• Stoics: Nature is governed by Reason
The Stoics focused on human reason. The Law of Nature became identified with
a moral duty. They argued that when man lived according to reason, he was
living naturally. To the Stoics precepts of reason had universal force.
, Roman legal philosophy (3.3)
• Stoic-inspired Roman law
The Romans took particular interest in the Stoics, finding it attractive to use their
conception of nature based on reason ‘to transform a rigid system into a
cosmopolitan one fit to rule the world’. Cicero had a concept of natural or true
law as ‘right reason in agreement with nature’. Cicero was the first natural lawyer
advocating the striking down of positive laws which contravened natural law,
comparing corrupt legislatures to a band of robbers. By the time of Cicero, 3
different Roman conceptions of law became prominent:
1. Ius natura: some sort of objective and universal order, emanating from
divine reason, yet at the same time holding sway over gods as well as men
2. Ius civile: the particular law applicable only to Roman citizens
3. Ius gentium: applied to all members of the Roman Empire and did not
distinguish between citizen and non-citizens. The general principles of
justice and reason were developed from case to case, which led to the ius
gentium.
Later, Roman law was much influenced by Christian thinking.
Early and later medieval developments in Church law (3.4)
The law became ‘the expression of human reason in a great body of scripture,
which was the heavenly Scripture that was committed to the Church’.
• Absolute vs. Relative natural law
The Catholic Church made a traditional distinction between the absolute Law of
Nature and the relative Natural Law. The 1st is that by nature (God’s law) men are
free from the State, they own all things in common and they are equal to one
another. The Relative Natural Law allowed for human law-making, which could
potentially violate all the ideal principles of the absolute Law of Nature.
• Thomas Aquinas
His theories are based on the understanding that different types of law co-exist
and interact with each other harmoniously and conflictingly. His legal theory
encompasses 4 types of law:
1. Eternal law – God-given rules governing all creation.
2. Natural law – the segment of eternal law which is discoverable through the
special processes of reasoning.
3. Divine law – revealed in the Scripture.
4. Human law – rules, supportable by reason, but articulated by human
authorities for the common good.
2 crucial propositions stand out:
1st: human laws derive their legal quality, their power to bind in conscience, from
natural law.
2nd: any purported law which is in conflict with natural or divine law is a mere
corruption of law and so not binding by virtue of its own legal quality;
nevertheless, even if an enactment is contrary to natural law and so ‘unjust’,
obedience may still be proper to avoid bad example or civil disturbance.
Aquinas showed how the bindingness of positive law actually derived from
natural law, as long as flexible notions like the rationally-conceived common good
were not overstepped; and he thus threw over positive law a halo of moral
sanctity. The Thomist system protected both the status quo of spiritual
superiority and of political power, leaving no scope for the rights of individuals.
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