What is Natural Law?
| Author | A. G. Chloros |
| Published date | 01 November 1958 |
| Date | 01 November 1958 |
| DOI | http://doi.org/10.1111/j.1468-2230.1958.tb00498.x |
WHAT
IS
NATURAL
LAW?
I
THE traditional view of natural law is that it is a body of immutable
rules superior to positive law.
It
is ideal law since it consists of
the highest principles of morality towards which humanity is
striving.
It
is also absolute law since it is not the result of any
convention, but is discoverable by the exercise of reason. “The
law of nature,” wrote Grotius,
“
is a dictate of right reason, which
points out that an act, according as it is
or
is not in conformity
with rational nature, has
in
it
a quality of moral baseness or moral
necessity; and that in consequence such an act is either forbidden
or
enjoined by the author of nature, God.”
It
should
be
noted
that the rational nature of man is not necessarily subordinate to
the will of
God,
and Grotius himself stated as
a
hypothesis that
natural law is
so
immutable that “even
God
.
.
.
cannot cause
that two times two should not make four.”
It
was thus possible
to be a rationalist and a natural lawyer and, although the religious
interpretation has survived to this day through scholastic theology,
there is another side to the classical natural law doctrine which
it
rationalistic.s
The idea
of
natural law
as
ideal law was not the invention
of
the renaissance.
It
was
known
to the ancient Greeks and was
elaborated by Plato and Aristotle.‘ Moreover,
it
played a
signifi-
cant role in Roman law and there are references to
it
both in the
Institutes
and the
Digest.d
It
was later incorporated in the teachings
of St. Augustine and the Fathers of the Church and
is
today an
integral part of the doctrines of the Church.6
In
its rationalistic
sense natural law provided the basis of the
jus
gentium
and
as
such it formed the basis
of
international law.
In
the seventeenth
1
De Jure
Belli
ac Pacis,
I,
i,
x,
para.
1.
2
LOC. cit.,
para.
5.
3
See generally D’EntrBves,
Natural
Law,
esp.
at
pp.
62-53.
4
The
early Greek philosophers first distinguiehed between
+6uis
and
vdpw.
Later Aristotle made the distinction explicit:
Nicomachcan Ethics,
v.
7,
1;
Rhetoric,
I,
13, 2. See
W.
Jones,
The
Law
and the
Legal
Theory of the
Greeks,
Chap.
111,
and b
the
same author,
Historical Introduction
to
the
Theory of
Law, Chap.
I’d
Literature,both ancient and m,odern is full
of
appeals
to
higher law;
cf.
T.
Ascarelli, Antigone
e
Porzia in xxxii (1955)
Rioista internazionale di
filosofa
del
diritto,
pp.
766
et
seq.
6
e.g.,
Gaius
Iwt.,
I,
189; Justmian,
Imt.,
1,
2 pr;
I,
2, 2;
I,
20,
6;
Dig.
1,
5,
24;
47,
2,
1,
1;
60, 17,
2436.
Cf.
I(rfiger,
Geschichte der
Qucllen
&s
Romischen Rechts,
2nd ed. (1912), pp. 131
et
seq.
;
Schulz,
Principles of Roman
Law,
pp.
35
et
seq.
8
See
the
following recent studies: D’Entrbvea,
op. cit.
(1951); Micklem,
Law
and the
Laws
(1952);
S.
Cotta,
I1
concetto di
legge
mlla
Summa
theobgiae
di Tommaso d’riquino
(1965).
(I(c~E~~’E
translation
in
Classics
of
International
Law.)
609
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