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1. Discuss the development of the concept of natural law over different time periods.
INTRODUCTION
There are several generally accepted theories concerning the origin of law. A theory is
a comprehensive explanation concerning some aspects of how society works. It directs one‟s
thinking on the subject by offering explanations and allowing predictions to be made
concerning the future contingencies. In short, a theoretical viewpoint governs the way that a
social phenomenon is seen and understood. Where law came from, and why it developed as it
did are questions that can be approached by using theoretical perspective of different writers.
Although each legal philosophy is usually treated separately for the sake of simplicity,
in reality, the idea of a jurist may embrace different theories. It is also noteworthy that the
theories have been applied in varying degrees by virtually all the legal systems in the world at
different times in their legal history.
CONCLUSION
Natural law serves as a test for the “validity” of man-made law. However, natural law
philosophy stresses „what ought to be done‟ (i.e. lex feranda) and not necessarily „what is
done‟ (i.e. lex lata). In practice, the judiciary interprets what the law is and not natural law.
Unless the principles of natural law are promulgated into law, their violation cannot be legally
punished. Also, extremism in natural law must be discouraged to avoid its negative character.
2. Explain the factors that caused the decline of natural law and its revival in the
nineteenth century.
INTRODUCTION
One of the central discussions that have preoccupied legal theorists throughout the
centuries is whether the law must conform to higher standards of justice and morality. The
natural law tradition or elements of it date far back to the time of Socrates and the Stoics.1
Natural Law theorists, affirmatively responding to the above discussion, contend that the
validity of state positive law relies on its adherence to unwritten higher principles of justice
and morality2. However, with time, Natural Law Theory (NLT) came under attack, as a
growing number of legal theorists argued that positive law has no moral component and that
morality and the law ought to be kept separate. This growing body of criticism developed into
a new theory of law known as Legal Positivism as it concerned itself with what is posited. That
is, law as it is, rather than law as it should be.
Professor Rawls
Professor Rawls made significant contribution to the revival of Natural Law in the 20th century.
He propounded two basic principles of justice, namely, (1) equality of right to securing
generalized wants including basic liberties, opportunities, power and minimum means of
subsistence; and (2) social and economic inequalities should be arranged so as to ensure
maximum benefit to the community as a whole.
Kohler
As a neo-Hegelian, Kohler defined law as, “the standard of conduct which in consequence of
the inner impulse that urges upon men towards a reasonable form of life, emanates from the
whole, and is forced upon the individual”. He says that there is no eternal law and the law
shapes itself as the society advances morality and culturally in course of evolution. He tried to
free the 19th century Natural Law from the rigid and a priori approach and attempted to make
it relativistic, adapting itself to the changing norms of the society.
The approaches of these philosophers are very scientific and logical and are free from the right
and a priori principles.
Hart
Hart, the leader of contemporary positivism, though critical of Fuller’s formulation, has
attempted to restate a national law position from a semi-sociological point of view. Hart points
out that there are certain substantive rules which are essential if human beings are to live
continuously together in close proximity. “These simple facts constitute a case of indisputable
truth in the doctrines of natural law”. Hart places primary emphasis here on an assumption of
survival as a principal human goal. “We are concerned”, he says, “with social arrangements
for continued existence and not with those of suicide clubs. There are, therefore, certain rules
which any social organization must contain and it is these facts of human nature which afford
a reason for postulating a ‘minimum content’ of Natural Law”
Finnis
Finnis who in his writing ‘Natural Law and Natural Rights’, restated the importance of natural
law. For Finnis, ‘Natural’ is the set of principles of practical reasonableness in ordering human
life and human community. Drawing on Aristotle and Aquarius, Finnis sets up the proposition
that there are certain basic goods for all human beings. The basic principles of Natural Law are
pre-moral. These basic goods are objective values in the sense that every reasonable person
must assent to their value as objects of human striving.
CONCLUSION
This brief survey of the content of ‘Natural Law’ has varied from time to time. It has
been used to support almost any ideology, absolutism, individualism and has inspired
revolutions and bloodshed also. It has greatly influenced the positive law and has modified it.
The law is an instrument not only of social control but of social progress as well, it must have
certain ends. A study of law would not be complete unless it extends to this aspect also. The
‘Natural Law’ theories have essentially been the theories regarding the ends of law. The
‘Natural Law’ principles have been embodied in legal rules in various legal systems and have
become their golden principles.
3. Briefly explain the principles of natural law.
a. Natural law is universal, unchanging and everlasting; it is not limited by time, space and
geography;
b. That which is good is in accordance with nature but that which is evil is contrary 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 therefrom, which serve as the validity of laws.
A law lacking in moral validity is wrong and unjust. On this basis, natural law invalidates
certain manifestations of the positive law and provides an ideal towards which the positive law
should strive.
e. Existence of natural rights.
4. Explain the concepts below and provide relevant illustration and argument:
a. Minimum content of natural law
INTRODUCTION
The question on the relationship between legal validity and morality is a perennial one.
There are the legal positivists who tend to rally around Austin’s claim that “the existence of
law is one thing; it’s merit or demerit is another” and there are the natural lawyers who tend to
follow Augustine’s claim that “a law which is unjust seems to be no law at all”. Amidst the
struggle in reaching a definitive resolution on this question, the work of Professor H.L.A Hart
has made significant contributions to this area of contention from a “soft” positivist perspective.
Not only does Hart claim that “it is in no sense a necessary truth that laws reproduce or satisfy
certain demands of morality”, but he explicitly acknowledges that “the rule of recognition may
incorporate as criteria of legal validity conformity with moral principles or substantive values”.
He also goes a step further and makes a concession that there is a “core of good sense in the
doctrine of Natural Law”.
CONTENTS
In The Concept of Law, Hart expounds on what he takes to be “the minimum content
of natural law”. His minimum content of natural law rests upon, “the general…argument…that
without such a content laws and morals could not forward the minimum purpose of survival
which men have in associating with each other.”
Hart argues that there are five features of human condition which sometimes work
against survival and believes that every legal system must take these into account. As such,
Hart, who claims to be a legal positivist, acknowledges that there is a connection between law
and human nature based on the following truisms;
a. Human vulnerability, which dictates the proscription of violence. The argument lies in the
simple fact that “men are both occasionally prone to, and normally vulnerable to, bodily attack”.
Thus, if there are no such rules restricting violence, there would be no point in having rules of
any other kind.
b. Approximate equality, meaning that although men have different capacities, no individual is
“so much more powerful than others, that he is able, without co-operation, to dominate or
subdue them for more than a short period of time”. Thus, there is a need for a “system of mutual
forbearance and compromise which is the base of both legal and moral obligation”.
c. Limited altruism, which makes rules of mutual forbearance necessary to secure a balance
between altruistic and selfish inclinations in a social pattern of life.
d. Limited resources, meaning that since necessities needed by men for survival are limited and
can only, be won though labour, there is a need for a “minimal form of the institution of
property…and the distinctive kind of rule which requires respect for it”.
e. Limited understanding and strength of will, which tempt individuals into deviant or anti-
social conduct for short-term personal gain thus, rendering sanctions as crucial to ensure
compliance with the rules.
As such, Hart argues that there is a natural necessity that legal systems contain rules for
the “protection of persons, property and promises”. These are the rules of conduct which any
social organisation must contain if it is to be viable and which are necessitated by certain
contingent truisms about human beings and the world in which they live. Therefore, taking the
premise to be that all human beings desire to live or survive, it is concluded that every legal
system has for that very reason these universally accepted principles which form the minimum
content of natural law, and which are common to law and morality.
It submitted that Hart’s minimum content of natural law is indeed thoroughly minimal.
In advancing his minimum content of natural law, Hart “simply offers a very humean set of
assertions, of them made as empirical generalisations, not a priori truths, about limited altruism,
vulnerability, approximate equality and limited resources”. It is also rather restricted to rules
relating to injury, property, life and death. This is due to the fact that Hart has only taken into
account the sole basic aim of survival. As a result, those moral rules that do not concern the
aim of survival will not be included. In addition, there is also some truth to Hart’s empirical
generalisations concerning human nature. Human beings are generally vulnerable and the
strongest individual is capable of being killed by a group of weaker individuals as men “are
not giant crabs, with impenetrable shells”. Furthermore, there is a real problem of resources
being scarce, thus our wants tend to outstrip what is available to supply them. As such,
enforceable rules are required to overcome the problems posed and this is something which
every legal system should take into account.
Therefore, it is very difficult to dissent from Hart’s minimum content of morality which
comprises of those necessary norms of social interaction which while reflecting moral
considerations, are necessary for any system of law to be minimally effective as a legal system.
In fact, in most legal systems, fundamental moral norms are enshrined in law as basic criminal
prohibitions. Rules forbidding murder is one example and such a rule is indeed crucial for a
society to be viable. Many such provisions seem to reaffirm the moral base of social order and
penalise those who do not follow the rules.
However, it is debatable as to whether survival is the sole aim that can be generally
predicated of man and his societies. Generally, the aim of man is to not only survive, but to
survive well, and to live according to some conceptions of a desirable, good or just life. As
such, laws in a social organisation would need to embody men’s needs to survive as well as
their conceptions of what is desirable, good and just. Therefore, Patterson suggests that “any
definition of the ultimate end of man should therefore take into account not only the biological
facet of man’s existence but also man’s unique intellectual and social capacities”. This point is
made by Rolf Sartorius who asserted that “Hart’s notion of natural necessity is presented in
terms of what there are good reasons for given survival as an aim. But surely room must be
made for loftier human pursuits than mere survival (of either the individual or species). I
suspect that some attempt at realizing those social and environmental conditions which provide
an opportunity for individuals to lead meaningful lives will have to be made here.”
Furthermore, it is also argued that there is a need for procedural requirements within
the law to ensure the survival of all the members of the society and that it is not sufficient to
only merely comply with Hart’s minimal moral content. Hart suggests that for a society to be
viable, it “must offer some of its members a system of mutual forbearances, but, it need not,
unfortunately, offer them to all”. Hart proposes this despite admitting to the possibility that in
extreme circumstances when a sufficiently large number of people are oppressed and derived
of protection from the law, the legal system may become “unstable with latent treat of upheaval”
and may eventually collapse.
Although Hart, in his later article, recognises that “all men who have aims to pursue
need the various protections and benefits which only laws conforming to … requirements of
substance and procedure can effectively confer” and that “laws, however, impeccable their
content, may be of little service to human beings and may cause both injustice and misery
unless they generally conform to certain requirements which may broadly be termed procedural”
[35] , he does not include any such procedural requirement into the minimum moral content of
law. Accordingly, despite highlighting the “importance of the rule of law as embodied in
certain requirements of procedural fairness, Hart fails to explicitly broaden the minimum moral
content of law so as to include them”.
Consequently, Patterson suggests that the requirement of fairness and justice must be
taken into account in order to ensure the survival of the members of a particular society as well
as the legal system. This suggestion is further supported by Hart’s later acknowledgement that
the purpose of law does not only ensure survival but facilitates the pursuit of aims as well. The
reason for Hart failing to take into account requirements of fairness or justice within his
minimum moral content of law could be due to his claim that it is possible for a legal system
to exist even though much of its substantive and procedural content is unfair or immoral.
However, “beyond a certain point, a system sufficiently lacking in fairness or justice can
collapse even though it conforms to Hart’s minimum moral content because, according to Hart,
the more a system is oppressive and unjust, the more likely it will be unstable”.
CONCLUSION
In conclusion, Hart correctly concedes to that fact that there needs to be a minimum
moral content in law to ensure the survival of the members of the society. However, it is argued
that mere adherence to Hart’s minimum content of moral itself will not ensure the survival of
the members in a society. Procedural fairness should be incorporated within the law in order to
ensure survival of the members of the society and the stability and continuance of the legal
system.
5. Discuss the strength and weakness of the concept of natural law as highlighted by
critiques.
INTRODUCTION
The natural law has not lost its relevance to modern times. The notion of natural law
led to the incorporation of constitutionally guaranteed rights of citizens in the USA
Constitution and written constitutions of most democracies of today. Appeal to natural law
seems inevitable in the modern world to find solutions to the tensions between law and morality
arising out of several factors. Natural law, no doubt, has its merits and demerits as would be
considered below.
STRENGTHS
The strengths of the Natural Law School are numerous. It is undeniable that many of
the concepts that have helped shape our society today were birthed from natural law thinking.
For instance, the Fundamental Human Rights, embedded in Chapter IV of the Constitution of
the Federal Republic of Nigerian, 1999 (as amended) was influenced by natural law philosophy.
Natural law is also said to be the basis for the development of the concept of equality and
democracy across the globe. Many countries have invoked natural law thinking in dealing with
issues relating to war and independence. The Americans invoked it in their war of
independence from Britain. The French also invoked it during the French Revolution; and the
Africans used it in their struggle for independence from their colonial masters. In the aspect of
equality, there is no doubt that natural law thinking influenced the clamour for a more equitable
share of the revenue from the petroleum resources derived from the Niger Delta area in Nigeria.
Natural law has acted as a lever of justice, progress and reason, rather than as an
instrument of oppression and injustice. Natural law also serves as a test for the „validity‟ of
man-made laws. It has helped in providing the philosophical basis for criticizing unjust laws.
The principles of natural justice; “Nemo Judex In Causa Sua” and “Audi Alterem Patem” as
well as the repugnancy doctrine were greatly influenced by natural law thinking. In Nigeria,
prior to British colonisation, settlement of dispute was done in accordance with the principle
embedded in the “Audi Alterem Patem” rule. For instance a saying in Yoruba, which
undoubtedly has its parallel in other Nigeria languages, is that “only a wicked arbitrating leader
would hear only one party to a dispute and hastily rush to judgement against the un-consulted
party.
Natural law has also brought about a call for reforms. It underscores the reasons why
the powers of the ruler should be limited and justifies revolution should the rulers go in breach
of the terms of the general will of the people. It provides check against corrupt or inhumane
systems.
WEAKNESSES
Natural law, in spite of its immense contribution to the development of law is not
without some shortcomings.
The natural law school looked to right reasoning as a guide to discussing the most
perfect form of laws. Right reasoning, it must be pointed out, is a criterion that cannot be
verified through empirical scrutiny, as such it lends itself to the interpretation of the most
powerful individuals in the society.
Another demerit of natural law is what is described as “the multiple conscience
problem”. That is, different individuals may have different conceptions of „fairness‟,
„rightness‟ and „justice‟ with respect to the same issue. Two equally devout people can both
assert that they are acting in accordance to natural law even though they are acting in opposite
manner. Against this background, the theory could lead to anarchy if everyone is left to act
according to the notion of what is „right‟ and „just‟ to him as dictated by his reason without
any formal sanction. Consequently, the noble guise of natural law has been used to defend
almost every ideology, ranging from absolute tyranny, intense racial/human right
discrimination to democracy, liberation struggles. This is why the philosophy has been
described as a harlot. For example, During the Human Right Discrimination Era in the USA
which started in about 1870 when the Jim Crow laws was introduced. These laws promoted
the idea of “separate but equal” which meant the races though having to be in different areas
and not allowed to intermingle were equal. This was on the premise that, God created man
black and white to maintain that separation. It took the bravery and courage of certain persons,
amongst which is Rosa Parks to kill the operation of such laws. Rosa Parks refused to give up
her seat in a Montgomery bus heading to Alabama when a white person asked her for the seat.
The usual practice was that, blacks only occupy the back seats in the buses. This her singular
act sparked a movement called the Montgomery Bus Boycott and led to the laws on
discrimination buses to be changed. Other fighters were Martin Luther King Jr., Malcolm X,
and Ruby Bridges.
However, it was not until 1954 that almost all discriminative laws in the USA gave way
after the historic case of Oliver Brown v Board of Education of Topeka. This case was a
landmark United States Supreme Court case in which the court declared state laws establishing
separate public schools for black and white students unconstitutional. The decision overturned
the Plessey v Ferguson decision of 1896 which allowed for state-sponsored segregation. The
court unanimously (9-0) stated that, “separate educational facilities are inherently unequal‟.
As a result de jure racial segregation was ruled a violation of the Equal Protection Clause of
the Fourteenth Amendment of the United States Constitution. The ruling paved the way for
integration of civil rights movements.
Apartheid is another example whose premise was also natural law; that God created
man black and white because they are unequal. As such blacks were subjected to all manner of
hardships, torture and inhuman treatment. It was that bad that, in visiting certain spots, a black
man needed a permit otherwise he would be arrested and criminally charged. It took the
courage and perseverance of persons like Nelson Mandela, Desmond Tutu, Thabo Mbeki etc
and external pressure to get the system abolished.
Another flaw of the natural law school is that, natural law is unpredictable in character.
Natural law serves as a tool in both the hands of the oppressors and the oppressed. Where these
uncertainties result to bad ideology such as slavery, colonialism, dictatorship, the philosophy
tends to do more harm than good. A good example is series of chronological revolutions
presently occurring in the Arab World. The ousted oppressors such as Hosni Mubarack of
Egypt, Ghadafi of Libya, etc all relied on natural law to justify their dictatorial rulership,
likewise the liberation movements and majority of the masses for their own action in ousting
their leaders. Natural law has also failed to prove, using scientific methodology, metaphysical
validation. For example, David Hume said that natural law is only real in the sense that some
individuals entertain the feeling that it exists. He believed it was a figment of the imagination
of fertile minds. He further stated that it cannot be asserted or demonstrated meaningfully, and
concluded that it attempts to derive “ought” from “is”.
CONCLUSION
Natural law serves as a test for the “validity” of man-made law. However, natural law
philosophy stresses „what ought to be done‟ (i.e. lex feranda) and not necessarily „what is
done‟ (i.e. lex lata). In practice, the judiciary interprets what the law is and not natural law.
Unless the principles of natural law are promulgated into law, their violation cannot be legally
punished. Also, extremism in natural law must be discouraged to avoid its negative character.