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Legal Theory and Natural Law - Essay Example

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In the second half of the twentieth century, the growth of interest in so-called 'human rights discourse' has been accompanied by a reinvigoration of natural law theory. Consider why there should be such a link between human rights and natural law and explore some of the alleged limits of rights-based thinking by reference to both the literature and concrete examples.
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Legal Theory and Natural Law
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Legal Theory and Natural Law

Download file to see previous pages... We use several research studies and published articles as well as the basic legal framework of the Human Rights Act 1998 to suggest how the relationship between natural law and human rights discourse could or should be explained.
Natural law theory is based on ethical perspectives or moral standards or may represent any law of nature, such as the law of gravity. Natural law theory shows the relationship between human nature and morality highlighting the importance of living in accordance with not just strict moral principles but also in accordance with what is right or proper (Anderson 2005, Feinberg 2003). Although natural laws are not completely applicable in all circumstances, mainly because its applicability is not clear, natural laws would definitely imply that human beings follow certain unwritten laws which are similar everywhere and are common to all humans. Natural law relates more to the moral aspect of human interaction and is judged by human reason providing the basic framework for legal enactments of any society.
Natural law theory is thus applicable across all humans and across all cultures, and is based on reality, and since it is naturally known and emphasizes on moral aspects of nature, such laws are not made but exist naturally. Any natural law help humans towards their own good and because it distinguishes between the good and the bad, right and the wrong and show what should or should not be done, it could be considered as playing a major role in shaping the practical nature of things including the concept of human rights1. Human rights are for that matter natural rights or based on what rights a person should have if we consider humans as free and equal. Human beings are naturally free and equal but they give up these rights due to pressures of society or may not be able to exercise these rights for reasons of personal security. Fundamental rights of each person seem to be derived from natural law and human rights have been basis for revolutions, war and fights for independence across ages.

Natural law theory is based on the principle of common good and the practical order of things and tends to direct human rights, human acts and operations by suggesting what is good and what is bad. Natural law has within its principles both primary and secondary precepts and primary precepts are more in accordance with the natural inclinations of human beings such as helping another individual. These primary aspects of natural law are unchangeable as they relate to natural inclinations inherent in humans2. The secondary precepts are more specific or particular and do not have complete general applicability and are precepts, which humans are not, inclined to do naturally. Secondary precepts can relate to education of children, hospitality or injury towards others.

Natural law is thus based on law which is already or intuitively known and applied or practised and relates to lived experience and appeals to the affective side of human nature. It would be considered as common sense law or law that is guided by conscience or law that is already known and practised without even explicitly having a legal basis. Moral propositions seem to have objective truth value and relates to dictates of reason. Natural law theory also ...Download file to see next pagesRead More
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