Does Natural Law Have a Place in the Modern World - Term Paper Example

Natural Law has no place in the modern world – discuss. Natural laws, sometimes referred to as unalienable rights, are not contingent upon the given legislature or the customs or beliefs of any particular society or time. They are sometimes referred to as the natural order i.e. the way things should be. It is the law or body of laws which is often believed to be binding upon man’s actions, whether or not laws about a particular matter have been established by any human authority. Those who don’t follow such laws are thought of as inhuman. Natural laws are considered to be natural and universal, whereas legal rights have altered during history and relate to particular cultures and political views. The term natural law has been applied to various theories of ethics, of politics and of civil law, as well as ideas about religious morality, rules or practical codes that, if followed by mankind, are those most likely to keep up, to strengthen and to restore respect for others in the human world and in general enable man to live alongside man in equable harmony. Are natural laws still required in a modern world which has the United Nations, the Universal Declaration of Human Rights of 1948 and theDeclaration of the Rights of the Child of 1959? The Historical View Aristotle In the 4th century B.C.E Aristotle came up with ideas about natural law. Little of his writng has survived , but it is known that he believed man to be a naturally political creature i.e. one who life was goverened by certain ideas and principles and that men are also social beings. In his ’Rhetoric’ Aristotle describes two types of law – the particular, i.e. that held by a particular society, and the ‘common, that is according to nature – the natural law. One view however is that he didn’t necessarily believe that such a law existed , but rather that it might be useful to appeal to such ideas when the laws of a particular place did not fit the case being made. The Stoics This group of Greek philosopers were important over a period of about 500 years from 300 B.C. E. They placed a stress upon duty and held that rational mankind could come to look upon the universe as governed by laws that were basically rational, and that people should regulate their lives in order to achieve moral worth. It is reason, seen as chief human characteristic by the Stoics, which enables man to understand his world Thomas Aquinas The Italian religious and philosopher St Thomas Aquinas took the view in the 13th century that the natural law was part of God’s plan for his creation and was a function of man’s inate rational nature. His ‘Summa Theologiae’ was chiefly concerned with the relationship between God and man. In 91.2 he states that man, because he is a rational being, participates in God’s eternal laws by understanding and following the natural law. In 90.4 he goes on to say that a law is a rule for action that has been put into place by those concerned with what is best for their society and that God has ultimate care for the whole universe, so it is natural that his laws are in place, because God has chosen to create beings with free will to act, yet who act according to eternal principles. These principles ( 94.4) are binding on all and are capable of being known and understood by all – which is more than can be said for the wording of much modern day legislation. Hobbes and Locke During the 17th century Thomas Hobbes and John Locke were the two best known political philosophers and they typify the various views about natural laws. Hobbes was the author of “Leviathan,” (1651) in which he argues for the need for strong rule otherwise war and chaos, which he saw as the natural state, would prevail. Locke the writer of “An Essay Concerning Human Understanding” in 1690 took a very different view. Both men take as their topic the nature and attributes of mankind, what constitutes natural law, and the design and purposes of government. Hobbes sees mankind as essentially evil, but Locke’s view of humanity was much more positive. They did agree however that under natural law everyone is equal. On other matters however they disagree. Hobbes saw the natural state of man as being a constant war in which “every man is a enemy to every man.” On the other hand, Locke saw man’s state as being one of natural freedom and equality. Locke believed that government is needed in order to maintain the natural law, and in contrast Hobbes saw government as being necessary in order to provide control over natural law. Both were agreed that it was necessary. The American Constitution This was of course written in the18th century. Its preamble clearly shows a belief in natural law with words such as justice and the idea of promoting the welfare of all:- We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity. This the Amercian government then tried to carry out through the passing of individual pieces of legislation. The fact that there have been numerous amendments to the original statement does not nullify the original motives of the writers and signatories, but rather serves to show how ideas contained within it have progressed over time. Their new country needed new laws, but many of these were based, at least in general, upon natural law principles. This adaption of existing laws to meet changing conditions or ideas is a very old practice, going back to the ancient Greeks. Modern Day Natural Law Ideas and Theories. John Rawls In more modern times John Rawls has written a number of works on the subject of justice such as ‘A Theory of Justice’ in 1971. Rawls sees natural justice as being fairness and in Chapter VI he argues for a natural duty to uphold justice. He sees natural goodness as being rational as he described in chapter VII. In chapter 1, page 3 he sets out his aim – to work out:- A theory of justice that is a viable alternative to these doctrines which have long dominated our philosophical tradition. Rawls accepts the idea of equality and states that both truth and justice are the first virtues of humanity. (page 4). He sees a well ordered society as being one that best advances the good of its members, but one which is also regulated by a shared concept of fairness and justice (page 5) This he feels works despite individual self interest or a variation in the aims and purposes of the various sections of society. This however is an ideal and Rawls admits that among societies already in existence such order rarely exists, because there are different ideas about what is right and what is wrong. Some common sense of what constitutes justice is required for a society to be fully viable, but there are other considerations. He lists the coming together of the plans of various individuals without anyone being greatly dissatisfied. He also points to the need for a group of principles to be established in order to help decide how social justice will work and how each section of society will be advantaged. Other Modern Day ideas on the subject of Natural Law In 1992 Robert George brought together the works of several writers on this subject in his book ‘Natural Law Theory, Contemporary Ideas’ chapter 1 has Joseph Boyle discussing ‘Ethical theory’ (page 3) which is concerned with being able to distinguish right from wrong , or as he puts it as being :- The effort to develop general criteria for distinguishing correct from incorrect moral judgments, within an overall account of moral life and existence. The downfall of such efforts, Joyce believes are, that they don’t take into account ‘the rich diversity of moral life’, by which it can be presumed he means the fact that in one society the act of marrying one’s sister, as was done for instance by Abraham and was a common practice among Egyptian ruling families, is in modern western society considered to be totally immoral, whereas in other societies it has been normal practice. Do such examples mean that there is no such thing as ‘natural law’? Another question that might be asked is are such laws innate or are they taught? A tiny baby for instance reaches out and grabs whatever it wants. It is only over time that he comes to realise that there are certain things that he is free to touch, but others are out of bounds. Is this a natural progression as his brain develops, or is it because he has been told repeatedly ‘Don’t do that’ or ‘This is nice’.. Joyce mentions other theories that have come to replace that of natural law – e.g. ‘virtues ethics’ ( page 3)in which positive character traits ( virtues) are used to provide a basis for moral judgments about life, but again the character traits that are valued vary among various societies so this idea is not as universal as it may at first appear. Boyle contends ( page 4) that much of what is seen as natural law is in fact the morality of Christian society, and in particular of post reformation Roman Catholic teaching, rather than being an ancient and universal principal. Function of the Natural Law If it is considered that the natural law is concerned with fairness and justice as it ought to be expressed within every human society, then it follows that it can be used to make comparisons with national, man made laws. If for instance, one is aware of what happened in Australia in 1971 as described by Garth Nettheim, then there is a natural feeling of it being unfair, whatever the law may say, when a judge declared that the Aboriginal people had no rights over their land and what happens to it because, before the arrival of Westerners, Australia was legally an empty land and the aboriginal people, because they felt no need for laws about property ownership at that time, had no rights to the land. The rulings in such cases seem to be unjust according to natural law ,whether or not one understands the complexity of the case which is concerned with a complex combination of constitutional, property and administrative laws. In cases of sexual inequality there are huge differences in different cultures and during various periods of history, yet the natural law prevails, whether or not one believes in a creator God and so follows St Paul, who in Galatians 3 v 28 declared all humanity equal ‘There is neither Jew nor Greek, slave nor free, male nor female.’ This view must overcome such matters as prevailing custom as when women or Afro-Americans were denied the right to vote in America. Gradually many societies have come to the supposedly natural view as when the American Constitution was amended in 1870 – Amendment 15.1:- The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Yet such societies haven’t always got there. It was 1920 before American women had suffrage under Amendment 19, and the Equal Rights Amendment, intended to ensure equal rights under federal, state and local laws, was first put forward in 1923 and has appeared before Congress regularly ever since, the last occasion being the 21st July 2009, but it remains unratified to date. The authority that natural law has, and which is behind the desire to ensure equality for all, is based, at least in part, upon the way in which it conforms to objective, measurable moral standards. If some things such as dignity and freedom are right for one person or group, then they must be right for all. A principle such as this is behind the Human Rights Act, but also means that such legislation cannot, or should not, be used by one person or group to the detriment of others. In the United Kingdom, to give just one eexample, as in the United States, it is natural law which is behind much legislation, for instance the laws promoted by Lord Shaftsbury in the 19th century which prevented the exploitation of women and children so that industrialists could make bigger profits. Conclusion Not ever one is a lawyer, conversant with every piece of legislation. Also laws vary from place to place and are also in constant flux as new points of view are considered or new matters need legislating for, for example with the coming of the railways laws had be designed so that they were run safely. These were later amended to take into account the transport of new, possibly dangerous materials, as described by the Department of Transport in their ‘Introduction to the transport of dangerous goods’. It is therefore obviously impossible for every single person to keep or even know every single current law. However society still, on the whole, survives, because the majority have an innate sense of right and wrong. They may not be able to quote the United Kingdom Theft Act of 1978 for instance, and be totally unaware that it was amended in 1996, but still be aware that it is wrong to take things that belong to others and feel a sense of injustice when someone steals from them. Even those who deliberately break the law have, for the most part, at least some realization that what they are doing might be considered as wrong by others – their degree of self interest rather than a total lack of moral sense, is what takes them along the wrong road Neglecting natural law principles can cause immediate and lasting damage as when one group decides that they don’t want others living alongside them for whatever reason as occurred in Nazi Germany. It is not so much a matter of whether or not the natural law is needed, as that it can be held to be part of humanity and so cannot be easily negated. And it is just as much a part of modern society as it was in earlier times, despite the reams of modern legislation, local, natural and international. Rulings passed by great international organizations such as the United Nations, which seek to provide justice on an equal basis for all humans, can be considered as an expression of such natural law, even if they are also considered as legislation. On the negative side as long as countries do not have laws which provide equal rights to all their citizens then the natural laws of society are needed. Opponents of the idea of natural law believe that there is no indigenous order to the human world or, if there is, it is not one they need to respect. Such people therefore see no reason why they should respect the ideas that define it, which is why prisons are full and certain countries are run by dictators. The result is anarchy and injustice, because any such actions deny, or aim to deny, to each individual their identity and value as a person. The fact that humans are capable of being rational unfortunately does not always guarantee that people will always act and speak justly, but this does not necessarily mean that, for the vast majority, and for most of the time, the principles of natural law will not prevail References Amendment 15 , The Constitution of the United States of America, http://www.usconstitution.net/const.html#Am15 ( accessed 11th January 2010) Boyle, J., included by George, R., Natural Law Theory: Contemporary Essays, Oxford, Oxford University Press, 1992 George, R. Natural Law Theory: Contemporary Essays, Oxford, Oxford University Press, 1992 Hobbes, T. Leviathan, 1651 Introduction to the transport of dangerous goods, Department of Transport, http://www.dft.gov.uk/pgr/freight/dgt1/road/intregs/introductiontotransportingda3190 accessed 11th January 2010 Locke, J. An Essay Concerning Human Understanding, 1690 Nettheim, G., New High Court Land Rights Challenge: Major Test Case, 1971, http://www.austlii.edu.au/au/journals/AboriginalLB/1982/20.html (accessed 11th January 2010) Paul, Galatians 5, Bible, New International Version, 1973 Rawls, J. , A Theory of Justice, Harvard College, 1971 The Constitution, the 19th Amendment, Featured Documents, http://www.archives.gov/exhibits/featured_documents/amendment_19/http://www.archives.gov/exhibits/featured_documents/amendment_19/ ( accessed 11th january 2010) The Declaration of the Rights of the Child, United Nations, 1959, http://www.canadiancrc.com/UN_CRC/UN_Declaration_on_the_Rights_of_the_Child.aspx (accessed 11th January 2010) The Equal Rights Amendment, http://www.equalrightsamendment.org/ ( accessed 11th January 2009). The Theft Act, 1978, http://www.lawteacher.net/criminal-law/acts/theft-act-1978.php ( accessed 11th January 2010). The Universal Declaration of Human Rights, The United Nations, 1948, http://www.un.org/en/documents/udhr/index.shtml (accessed11th January 2010) Thomas Aquinas, http://www.middle-ages.org.uk/thomas-aquinas.htm (accessed 11th January 2010) Read More