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Natural Law

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Natural Law Zhang Fan Introduction Overview of Natural Law Theories Methodology Main Tenets Major Schools and Great Thinkers Historical Function of Natural Law ... – PowerPoint PPT presentation

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Title: Natural Law


1
Natural Law
  • Zhang Fan

2
Introduction
  • Overview of Natural Law Theories
  • Methodology
  • Main Tenets
  • Major Schools and Great Thinkers
  • Historical Function of Natural Law Theories
  • Natural Law Thinking in Ancient China
  • Critics of Natural Law

3
Overview of Natural Law Theories
  • Natural law is that "unwritten law" that is more
    or less the same for everyone everywhere. To be
    more exact, natural law is the concept of a body
    of moral principles that is common to all
    humankind and, as generally posited, is
    recognizable by human reason alone. Natural law
    is therefore distinguished from -- and provides a
    standard for -- positive law, the formal legal
    enactments of a particular society.

4
Methodology
  • Teleological view of the universe and human
    society regarding the world, especially human
    society, as having an ultimate purpose, some
    state of perfection towards which society must
    inexorably advance. Law, as a devise for
    promoting the desired good, is regarded as being
    a social necessity.

5
Main Tenets
  • Doing Good but avoid evil
  • Justice
  • Rule of Law
  • Natural Rights
  • Law and Morality closely related
  • Natural Law is universal, objective, immutable
    and eternal.

6
Introduction
  • Overview of Natural Law Theories
  • Methodology
  • Main Tenets
  • Major Schools and Great Thinkers
  • Historical Function of Natural Law Theories
  • Natural Law Thinking in Ancient China
  • Critics of Natural Law

7
Major Schools and Great Thinkers
  • Ancient Greek Roots Socrates, Plato , Aristotle,
    Stoics, Cicero
  • Theological School St. Augustine, Aquinas
  • Classical Natural Law Theory Grotius
  • Natural Law Theory after World War II

8
Socrates and Plato
  • Socrates (470-399 BC) and Plato (428 348 )
    argued that there were principles of morality
    which it was possible to discover through
    processes of reasoning and insight. Law based on
    these principles would thus be the product of
    correct reasoning.

9
Aristotle (384-322BC)
  • Aristotle recognized nature as the capacity for
    development inherent in particular things and
    aimed at a particular end or purpose, both in
    respect to physical and moral phenomena.
  • He also made a distinction between natural
    justice and conventional justice. Natural justice
    is common to all humanity, a kind of state of
    goodness. Conventional justice varies from state
    to state, for particular communities.

10
Stoics
  • Stoicism provided the most complete classical
    formulation of natural law. The Stoics argued
    that the universe is governed by reason, or
    rational principle they further argued that all
    humans have reason within them and can therefore
    know and obey its law.

11
Cicero (106-43BC)
  • Cicero argued that nature provided rules by which
    humanity ought to live these rules, which could
    be discovered through reason, should form the
    basis of all law. In De Legibus he argued that
    true law is right reason in agreement with
    nature, it is of universal application,
    unchanging and everlasting.

12
Theological School
  • Christian philosophers readily adapted Stoic
    natural law theory, identifying natural law with
    the law of God. For Thomas Aquinas, natural law
    is that part of the eternal law of God ("the
    reason of divine wisdom") which is knowable by
    human beings by means of their powers of reason.
    Human, or positive, law is the application of
    natural law to particular social circumstances.
    Like the Stoics, Aquinas believed that a positive
    law that violates natural law is not true law.

13
St. Thomas Aquinas (1224-74)
  • Four Categories
  • Eternal law- Gods rational guidance of all
    creatures.
  • Divine law that part of law manifested through
    revelations in the Christian scriptures.
  • Natural law participation of rational creatures
    in the eternal law through the operation of
    reason.
  • Human law derived from both divine law and
    natural law. This law may be variable in
    accordance with the time and circumstances in
    which it is formulated, but its essence is to be
    just. Thus, lex injusta non est lex (an unjust
    law is not law).

14
Classical Natural Law
  • With the secularization of society resulting from
    the Renaissance and Reformation, natural law
    theory found a new basis in human reason. The
    17th-century Dutch jurist Hugo Grotius believed
    that humans by nature are not only reasonable but
    social. Thus the rules that are "natural" to them
    -- those dictated by reason alone -- are those
    which enable them to live in harmony with one
    another. From this argument, by the way, Grotius
    developed the first comprehensive theory of
    international law.

15
Natural Rights
  • Natural law theory eventually gave rise to a
    concept of "natural rights." John Locke argued
    that human beings in the state of nature are free
    and equal, yet insecure in their freedom. When
    they enter society they surrender only such
    rights as are necessary for their security and
    for the common good. . Each individual retains
    fundamental prerogatives drawn from natural law
    relating to the integrity of person and property
    (natural rights).

16
Inalienable Rights
  • This natural rights theory provided a
    philosophical basis for both the American and
    French revolutions. Thomas Jefferson used the
    natural law theory to justify his trinity of
    "inalienable rights" which were stated in the
    United States Declaration of Independence.

17
Natural Law Theory after WWII
  • Lon Fuller Inner Morality of law, Proceduralism
  • John Finnis Aquinas, Conceptualism
  • Ronald Dworkin Law as Integrity

18
Lon Fuller
  • Fuller calls his principles 'procedural' rather
    than substantive. He also calls the morality
    that's required for law, 'internal morality.'
    Substantive principles describe what is right and
    what is wrong. They tell us how to regulate our
    conduct, i.e., whether polygamy is wrong.
    Procedural principles give criteria for forming
    substantive moral principles into law. Fuller's
    view is that natural justice enters the law at
    the procedural level. There are certain
    procedural principles which are necessary for
    anything to be a law in the first place. These
    principles make the law procedurally just, even
    if not substantively just

19
John Finnis
  • Arguing about what is "law" or "not law" is
    silly what matters is what judges (and other
    officials) may or must take into account
  • Natural lawyers believe in a mind-independent
    moral reality that provides objectively valid
    standards of right conduct

20
John Finnis
  • Natural law is a set of principles of practical
    reasonableness to be utilized in the ordering of
    human life and human community in the process of
    creating optimum conditions for humans to attain
    the objective goods. These conditions constitute
    the common good. Finnis lists seven objective
    goods which he regards as being irreducible
    basic. These are

21
John Finnis
  • Life- the first basic value
  • Knowledge- a preference for true over false
    believe
  • Play- performance for the sake of it
  • Aesthetic experience the appreciation of
    beauty
  • Friendship or sociability acting for the sake
    of ones friends purpose or well being
  • Practical reasonableness the use of ones
    intelligence to choose actions, lifestyle,
    character, etc
  • Religion the ability to reflect on the origins
    of the cosmic order and human freedom and reason.

22
Ronald Dworkin
  • Ronald Dworkin made strong criticisms to both
    Natural Law and Legal Positivism and many people
    say that Dworkin's theory occupies a middle
    ground between Natural Law and Legal Positivism
    as the third theory of law.
  • From rules to principles to moral fiber to
    Hercules---the idea of integrity

23
Ronald Dworkin
  • Dworkin is most famous for his theory of law as
    integrity, which is given its fullest statement
    in his book Law's Empire. Dworkin's theory is
    interpretive. He argues that law is best
    understood as an interpretation of the political
    practices of a society. Thus, in deciding a legal
    case, judges decide in accord with the
    interpretation of the society's institutions and
    legal texts that best fits and justifies the
    society's history and practices.

24
Introduction
  • Overview of Natural Law Theories
  • Methodology
  • Main Tenets
  • Major Schools and Great Thinkers
  • Historical Function of Natural Law Theories
  • Natural Law Thinking in Ancient China
  • Critics of Natural Law

25
Historical Function of Natural Law Theories
  • Divinization of Law
  • Secularization of Law
  • Demystification of Law

26
Divinization of Law
27
Secularization of Law
28
Demystification of Law
29
Natural Law Thinking in Ancient China
  • Lao Zi
  • Confucius

30
Lao Zi Non-interference
  • Man has been granted a simple nature, and all
    social activities follow their own natural law.
    Non-Interference (or less interference, when
    absolute non-interference is unavoidable), would
    lead things in their original direction. In this
    way, society and nature would be in good order,
    and no conflict would take place. So Laozi said
    If I do things by Non-Interference, people will
    follow me naturally If I incline to Tranquility,
    people will be led in the proper direction If I
    interfere with nothing, people will become rich
    If I have no sensual desire, people will become
    simple and sincere.

31
Confucius
  • "Sir, what need is there of the death penalty in
    your system of government? If you showed a
    sincere desire to be good, your people would
    likewise be good. The virtue of the prince is
    Like unto wind that of the people, like unto
    grass. For it is the nature of grass to bend,
    when the wind blows upon it."

32
Critics of Natural Law
  • Fuller has been criticized for overlooking that
    even laws which adhere to the inner morality, may
    be unjust.
  • Natural law cant guide judicial decision in
    specific cases.
  • It is wrong for natural law theorists to argue
    that there is a strong connection between law and
    morality.
  • Morality is subjective and varies with different
    people and therefore cannot be eternal.

33
FinMerci
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