Natural Law
- LAST REVIEWED: 23 March 2012
- LAST MODIFIED: 23 March 2012
- DOI: 10.1093/obo/9780199796953-0024
- 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.
Users without a subscription are not able to see the full content on this page. Please subscribe or login.
How to Subscribe
Oxford Bibliographies Online is available by subscription and perpetual access to institutions. For more information or to contact an Oxford Sales Representative click here.
Article
- Act of State Doctrine
- Africa and Intellectual Property Rights for Plant Varietie...
- African Approaches to International Law
- African Commission on Human and Peoples' Rights and the Af...
- Africa’s International Intellectual Property Law Regimes
- Africa’s International Investment Law Regimes
- Agreements, Bilateral and Regional Trade
- Agreements, Multilateral Environmental
- Aliens
- Applicable Law in Investment Agreements
- Archipelagic States
- Arctic Region
- Armed Opposition Groups
- Aut Dedere Aut Judicare
- Balance of Power
- Bandung Conference, The
- Boundaries
- British Mandate of Palestine and International Law, The
- Children's Rights
- China, Judicial Application of International Law in
- China, Law of the Sea in
- Civil Service, International
- Civil-Military Relations
- Codification
- Cold War International Law
- Collective Security
- Command Responsibility
- Common Heritage of Mankind
- Complementarity Principle
- Compliance in International Law
- Conspiracy/Joint Criminal Enterprise
- Constitutional Law, International
- Consular Relations
- Contemporary Catholic Approaches
- Continental Shelf, Idea and Limits of the
- Cooperation in Criminal Matters, Cross-Border
- Countermeasures
- Courts, International
- Crimes against Humanity
- Criminal Law, International
- Cultural Rights
- Cyber Espionage
- Cyber Warfare
- Debt, Sovereign
- Decolonization in International Law
- Democracy
- Development Law, International
- Disarmament in International Law
- Discrimination
- Disputes, Peaceful Settlement of
- Drugs, International Regulation, and Criminal Liability
- Early 19th Century, 1789-1870
- Ecological Restoration and International Law
- Economic Law, International
- Effectiveness and Evolution in Treaty Interpretation
- Enforced Disappearances in International Law
- Enforcement of Human Rights
- Environmental Compliance Mechanisms
- Environmental Institutions, International
- Environmental Law, International
- Estoppel
- European Arrest Warrant
- Exclusive Economic Zone
- Extraterritorial Application of Human Rights Treaties
- Fascism and International Law
- Feminist Approaches to International Law
- Financial Law, International
- Forceful Intervention for Protection of Human Rights in Af...
- Foreign Investment
- Fragmentation
- Freedom of Expression
- French Revolution
- Gender and International Law, Theoretical and Methodologic...
- Gender and International Security
- General Customary Law
- General Principles of Law
- Genocide
- Georgia and International Law
- Grotius, Hugo
- Habeas Corpus
- Hijaz and International Law, The
- History of International Law, 1550–1700
- Hostilities, Direct Participation in
- Human Rights
- Human Rights and Regional Protection, Relativism and Unive...
- Human Rights, China's Practices in
- Human Rights, European Court of
- Human Rights, Foundations of
- Human Rights Law, History of
- Human Trafficking
- Hybrid International Criminal Tribunals
- Immunities
- Immunity, Sovereign
- in Latin America and the Caribbean, International Legal Pr...
- Indigenous Peoples
- Individual Criminal Responsibility
- Institutional Law
- Inter-American Commission on Human Rights (IACHR) and Inte...
- International and Non-International Armed Conflict, Detent...
- International Committee of the Red Cross
- International Community
- International Court of Justice
- International Criminal Court, The
- International Criminal Law, Complicity in
- International Criminal Tribunal for Rwanda (ICTR)
- International Criminal Tribunal for the Former Yugoslavia ...
- International Fisheries Law
- International Humanitarian Law
- International Humanitarian Law, China and
- International Humanitarian Law, Targeting in
- International Intellectual Property Law, China and
- International Investment Agreements, Fair and Equitable Tr...
- International Investment Arbitration
- International Investment Law, China and
- International Investment Law, Expropriation in
- International Law, Aggression in
- International Law, Amnesty and
- International Law and Economic Development
- International Law, Anthropology and
- International Law, Big Data and
- International Law, Climate Change and
- International Law, Derogations and Reservations in
- International Law, Dispute Settlement in
- International Law, Ecofeminism and
- International Law, Economic Analysis and
- International Law, Espionage in
- International Law, Hegemony in
- International Law in Cyberspace, China and
- International Law in Greek
- International Law in Italian
- International Law in Northeast Asia
- International Law in Portuguese
- International Law in Turkish
- International Law, Legitimacy in
- International Law, Marxist Approaches to
- International Law, Military Intervention in
- International Law, Money Laundering in
- International Law, Monism and Dualism in
- International Law, Peacekeeping in
- International Law, Proportionality in
- International Law, Reasonableness in
- International Law, Recognition in
- International Law, Self-Determination in
- International Law, State Responsibility in
- International Law, State Succession in
- International Law, the State in
- International Law, The Turkish-Greek Population Exchange a...
- International Law, the Turn to History in
- International Law, The United States and
- International Law, Trade and Development in
- International Law, Unequal Treaties in
- International Law, Use of Force in
- International Legal Personality
- International Regulation of the Internet
- International Relations Study in China, International Law ...
- International Rule of Law, An
- International Territorial Administration
- International Trade and Human Rights
- Intervention, Humanitarian
- Investment Protection Treaties
- Investor-State Conciliation and Mediation
- Iran and International Law
- Iraq War, Britain and the
- Islamic Cooperation, International Law and the Organizatio...
- Islamic International Law
- Islamic Law and Human Rights
- Islands
- Jerusalem
- Jurisdiction
- Jurisprudence (Judicial Law-Making)
- Jus Cogens
- Just War
- Landlocked Countries and the Law of the Sea
- Law of the Sea
- Law of Treaties, The
- Law-Making by Non-State Actors
- League of Nations, The
- Lebanon, Special Tribunal for
- Legal Pluralism
- Legal Status of Military Forces Abroad
- Liability for International Environmental Harm
- Liberation and Resistance Movements
- Mandates in International Law
- Maritime Delimitation
- Martens Clause
- Medieval International Law
- Mens Rea, International Crimes
- Middle East Boundaries and State Formation
- Migration
- Military Necessity
- Military Occupation
- Minorities
- Modes of Participation
- Most-Favored-Nation Clauses
- Multinational Corporations in International Law
- Nationality and Statelessness
- Natural Law
- Neutrality
- New Approaches to International Law
- New Haven School of International Law, The
- Non liquet
- Noninternational Armed Conflict (“Civil War”)
- Nonstate Actors
- Nuclear Non-Proliferation
- Nuremberg Trials
- Organizations, International
- Pacifism in International Law
- Palestine (and the Israel Question)
- Peace Treaties
- Piracy
- Political Science, International Law and
- Positivism
- Private Military and Security Companies
- Protection, Diplomatic
- Public Interest, Human Rights, and Foreign Investment
- Queering International Law
- Rational Choice Theory
- Recognition of Foreign Penal Judgments
- Refugee Law, China and
- Refugees
- Rendition, Extraterritorial Abduction, and Extraordinary R...
- Reparations
- Russian Approaches to International Law
- Sanctions, International
- Sanctions, International
- Secession
- Self-Defense
- Slavery
- Soft Law
- Space Law
- Spanish School of International Law (c. 16th and 17th Cent...
- Sports Law, International
- State of Necessity
- Superior Orders
- Taba Arbitration, The
- Teaching International Law
- Territorial Title
- Terrorism
- The 1948 Arab-Israeli Conflict and International Law
- The Ottoman Empire and International Law
- Theory, Critical International Legal
- Tibet
- Tokyo Trials, The
- Torture
- Transnational Constitutionalism, Africa and
- Transnational Corruption
- Treaty Interpretation
- Ukrainian Approaches
- UN Partition Plan for Palestine and International Law, The
- UN Security Council, Women and the
- Underwater Cultural Heritage
- Unilateral Acts
- United Nations and its Principal Organs, The
- Universal Jurisdiction
- Uti Possidetis Iuris
- Vatican and the Holy See
- Victims’ Rights, International Criminal Law, and Proceedin...
- War Crimes
- Watercourses, International
- Western Sahara
- World Trade Organization Law, China and