A Critique of Natural Law
256 Pinevalley Crescent
Student #: 923621220
Phil 1002 6.0 Q
Class ID: 1227265
Team Instructor: Carol Bigwood
Natural Law is a concept that has caused ambiguity throughout the history of Western thought. There is a multitude of incompatible ideas of natural law that have caused even those who are in basic agreement on natural law theory to have opposing notions on the particulars. In spite of this confusion, there have been enough advocates among natural law thinking in Western society to make it possible to identify its major criticisms: 1.
Natural law is immutable and is rooted in nature. This defines for man what is right, just, and good, and which ought to govern its actions. (Einwechter, 1999, p.1) 2.
The universe is governed by reason, or rational principle which provides a basis for determining justice of man made laws. (Einwechter, p.1) 3.
Natural law is the same for all human beings and at all times. (Cragg, unit 13, part 2)
In this paper, I will summarize the philosophical and historical roots of natural law theory as they relate to the three major criticisms, and challenge these major criticisms using theories such as utilitarianism and legal positivism. Plato and Aristotle proved to be of great importance in natural-law thinking from 5th century Greece until the present day. Plato had an idealist view of justice as a kind of absolute which can be understood only by the philosopher and fully realized in an ideal state. Aristotle regarded natural justice as universal, yet ideal. Stoic philosophy, which evolved after Aristotle, plays a great role in the history of natural law. Its emphasis was on reason as the key element of humanity. (Course Kit, 2005, p.77) Subsequently, Stoicism became associated with the spread of Roman power over the Mediterranean world, and the Roman legal conception, ius gentium the common law that was administered to those countries restricted to the Roman world. Although the Romans adopted an abstract conception of a universal law, they applied little or none of the essential features of natural law. (Lloyd, p.79) However, the writings of Roman oracle, Cicero perpetuated the evolution of early natural law speculation to later ages. He claimed that natural law governs the entire universe by divine reason. Thus, it is eternal, and is not established by people, but by reason. In concurrence with Stoic natural law and ius gentium, Christian theology had a superior impact than that of the older Stoic natural law. The Catholic Church and its representatives had the authority to expound and comprehend and enforce the law of God. St. Thomas Aquinas, a proponent of Catholic philosophy, asserted that natural law is common to all people Christians and non-Christians and is eternal. Hugo Grotius, a 17th century jurist, claimed that man's reason and rationality, which was rooted in human nature and based on divine law, governed all human affairs. (course kit, pgs.78-81)
By the middle of the 19th century, modern natural law tradition was attacked by criticisms of Bentham with his principles of utilitarianism and John Austin's influence of legal positivism. The principle of utility augmented the greatest happiness of the greatest number of people, and legal positivism identified the existence of legal systems and defines what is legal in a particular society, not what is lawful among human beings. (Stanford Encyclopedia of Philosophy, 2003, p.1)
Marcus Tullius Cicero's (106-43 B.C.), a Roman orator and stoic philosopher, description of natural law derives from the ideas of Greek philosophers and the views of many non-Christian and Christian natural law theorists. He asserted that natural law is in accordance with nature, applies to all men and is unchangeable and eternal. Thus, he described law as the "highest reason, implanted in...
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