Natural Law

by

Craig Reeves

• LAST REVIEWED: 23 March 2012
• LAST MODIFIED: 23 March 2012
• DOI: 10.1093/obo/9780199796953-0024

Introduction

Natural law as a field of jurisprudence is part of a wider tradition of thought whose roots reach back into Greek philosophy. Theories claiming the status of “natural law” theories vary widely and historically, and their understanding of what is at stake in the debate between natural law and its critics has been developed and revised dramatically. This article will focus on natural law as a theory of law, particularly international law, but will necessarily situate the literature on this topic in the broader context of natural law thinking. For if there is a core theme that links the various natural law philosophies, it is a basic commitment that the understanding of human life and its central practices and institutions—including law—must take its cue from a more general understanding of being, or at least human being. Thus it is of the essence of natural law theories that the understanding of law entails a broader philosophical understanding of things, whether that involves an account of human needs and interests, transcendent values grounded in theological commitments, or a full-scale metaphysical account of the cosmos. For natural law theories, law’s validity is tied to morality, and morality is understood as relating to the nature of being (including the prime being, God), or human being. Although the origins of natural law stretch back into antiquity, the roots of natural law theory lie in the thought of Augustine and especially Aquinas. Aquinas’s thought was especially influential on later Scholastics, who began to apply natural law to the idea of international relations, war, and peace, and to develop natural law accounts of international law. Grotius’s famous account of the natural law requirements of the conduct of war is perhaps the founding text of international law and has been very influential. In the Enlightenment, natural law theory was reformulated along more instrumentalist lines by Pufendorf, and subjected to critique by Kant and Hegel, after which it fell into decline as legal positivism came into ascendency. Recently, it has seen a revival in the “new natural law” of writers such as Finnis and, more ambiguously, in the interpretive jurisprudence of Dworkin. It has always remained important in the field of international law and human rights, however, for it is especially in this area that positivism has had difficulty reaching any consensus on the sources of law. Legal positivism, although displacing natural law, has proved unable to entirely eradicate the attraction of natural law, for the sense remains that law reaches beyond itself and, especially at the level of the international community, is constituted by some transcendent norms, which are irreducible to posited rules or accepted customs. Thus elements of the natural law tradition survive not only in explicitly natural law theories, but also in contemporary liberal accounts of international order and even in the radical approaches of postmodernist legal theory inspired by Derrida.

General Overviews

A number of useful introductory textbooks provide an introduction to the theory of natural law in the broader context of jurisprudence. Some focus on specific issues (Meyerson 2007), while others have a more historical thinker-oriented focus and explore issues of history and context (Morrison 1997); Simmonds 2008 provides more detailed discussions of contemporary debates between natural law and positivism. Bix 2009 provides an accessible general introduction and yet others, such as Veitch, et al. 2007, range more widely across social, political, and economic theory. Finnis 2011 provides the most accessible introduction to prominent natural law approaches. These texts will serve as useful starting points for inquiry into natural law theory and its critics, highlighting the main debates and issues of contention between natural law theory, positivism, and more critical approaches.

• Bix, Brian H. Jurisprudence: Theory and Context. 5th ed. London: Sweet & Maxwell, 2009.

  One of the standard introductory texts on jurisprudence, written by a scholar with an interest in natural law theory. Offers an accessible guide to the key debates in contemporary legal theory and is liked by students and teachers.

• Finnis, John. “Natural Law Theories.” In The Stanford Encyclopedia of Philosophy. Edited by Edward N. Zalta. 2011.

  The Stanford Encyclopedia of Philosophy entry on natural law jurisprudence written by the leading Anglo-American representative of the tradition. This is an accessible, free online resource that gives a comprehensive overview and is revised and updated regularly. Finnis defends the continued importance of natural law theory in relation to competing legal theories.

• Meyerson, Denise. Understanding Jurisprudence. London: Routledge-Cavendish, 2007.

  A short, introductory text arranged thematically around central issues rather than thinkers. Accessible discussion with useful overview of the natural law–positivism debate.

• Morrison, Wayne. Jurisprudence: From the Greeks to Post-modernism. London: Cavendish, 1997.

  One of the more interesting and wide-ranging, though more difficult, jurisprudence textbooks, the text is structured historically with substantial discussions of much of the early natural law tradition in Greek and medieval thought, as well as of the more recent natural law revival. The discussion pursues enduring philosophical themes while situating theories in their historical, social, and cultural context.

• Simmonds, Neil. Central Issues in Jurisprudence. 3d ed. London: Sweet & Maxwell, 2008.

  Restricted to contemporary analytic jurisprudence, but stands out due to its argumentative structure and style. Focuses on key debates, and, as such, it is a valuable guide to the place of contemporary natural law in relation to its positivist critics. The author is sympathetic to Dworkin’s rejuvenation of aspects of natural law and presents an accessible critical response to current positivism.

• Veitch, Scott, Emilios Christodoulidis, and Lindsay Farmer. Jurisprudence: Themes and Concepts. London: Routledge-Cavendish, 2007.

  An introductory text with a focus on the broader context of jurisprudence within social, political, economic, and ethical thought. The text is designed to be introductory but at the same time delves into difficult and sophisticated issues and arguments. The focus is not on natural law theory although this is discussed (2.2.1), but it does provide a diverse and critically oriented grounding in legal theory issues.