Research Paper on Natural law

Introduction

From a general perspective, the term Natural Law can be said to exist in two realms - moral and legal theories. It is worthwhile to note that the two perspectives are completely logically independent and are different from the concepts of laws of nature. Ideally, natural laws are based on scientific grounds, and the fact that they can be described brings out the desired distinction. The natural law theory majoring on the moral ideas suggest that the nature of human beings and the world dictate objectively, to some extent, the moral standards that govern humans.

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On the other hand, the legal part asserts that the legal standards derive their authority from considerations of moral merits of the said standards at least in part. Although there are different forms of natural law legal theories, depending on the role of morality in determining their authority, it is vivid that these two theories intersect. Due to the ambiguous nature of this subject, various authors have put forward different ideas concerning it. The major advocate authors here include Pufendorf, Fuller, Nozick, and Rawls as is examined below.

Natural Law According to Charles Pufendorf (On the Law of Nature and Nations, 1672)

Pufendorf suggests that the natural law came into action to bring normality in human actions, to attest to the fact they are the most rational animals in existence. Since the rules were customarily based on the right (ius) and law (lex) of nature, he stated that they might be referred to as eternal or universal laws as they bind all the entire races of the mortals and are not subject to frequent alterations (The book of Deuteronomy). In effectively tackling this subject, various aspects of belief in the Supreme Being (God) come into play. Some groups consider natural laws as those acts which are morally needed or base of themselves, and which are natural in their own and either forbidden or prescribed by God (Pufendorf, 1672). To differentiate natural laws from human, divine voluntary and positive laws which do not prescribe or forbid things that are of themselves nature illicit or owed, many holds onto this school of thought. More often, it is believed that the things that the natural law forbids, are not base because God forbade them, but God forbade them since in themselves they are base.

Similarly, the ones that are prescribed are just honorable in themselves and not because God prescribed them. But again, it would remain unclear if we just believed that these acts are owed and illicit in themselves. According to Pufendorf, many hold the belief that only laws could make acts illicit or owed in themselves. A pertinent question, therefore, comes up that if all morality of man depended on the law, could God not have formed the natural law to prescribe the opposites of those that are currently prescribed? Say for example, that now stealing, false accusation and killing were prescribed instead of the popular ones like showing gratitude and keeping agreements (Pufendorf, 1672). In the end, however, all this fact searching is in vain since God had already designed everything the way they are currently.

In the eyes of most men, it can be agreed upon that natural law concepts are mainly derived from man's reason. It is written in the Bible that the laws that God gave are written in people's hearts (Romans 2:14-15, NKJV). The scriptures have attempted to explain the existence of natural laws, but one fact remains that the laws cannot be investigated and firmly demonstrated. However, we are tempted to question the actions of infants if indeed they are born with the laws in their mind. Can we conclude that infancy is a period of ignorance about the right and the base and that we gain this knowledge as we become of age? Pufendorf maintains that the fact that men cannot explain how the natural law's precepts can be formally demonstrated and that they learn and observe it in action from custom or the course of ordinary life cannot discredit this entire line of reason (Pufendorf, 1672). He proceeds to define the right reason as principles in agreement with the properly observed and examined the nature of things that are fully derived from true first principles by valid deductions. This means that natural laws are derived from observations and learning from nature that only indicates what exists and never contain falsehood (the results of error men).

Gauging from the basic behaviors of a man like association, self-love, easily being annoyed and ready to inflict harm to others for their survival, it is evident that man can do good as much as harm for his existence. Thus the fundamental of natural law and all men must be obliged by their reason to follow the force of law from the existing and nature founded principles.

Natural Law According to John Rawls (Theory of Justice, 1971)

From his point of argument, Rawls rejected the concept of natural law but instead proposed the theory of fairness, rubric on which the democratic society was to be built. In his theory, Rawls described justice (fairness) as the principles that free and rational persons would agree in an initial take of equality as defining the primary terms of their agreements with sole roles of regulating their further agreements, specifying the types of agreements they can freely enter into and the forms of government they can form. Within the same line of thought, democracy dictates that each member of the social cooperation takes parts in choosing one joint act of principles that set out their basic rights and duties and also determine the division of the social benefits accrued. Rawls further maintained that the original position of equality corresponds to the state of nature in the traditional theory of social contract in the definition of justice as fairness. No one knows his place, position or class or social status in the society. People do not even know their fortune in the disbursement of natural assets and abilities, intelligence and strength. The said principles of justice are usually chosen behind a veil of ignorance, ensuring that no one is shortchanged of the opportunities that they should be given. This means that there is no initial status quo in setting up agreement principles while the values of the fair agreement, bargain, and symmetry of everyone's relations to each other are deeply applied (Rawls & Nozick, 1977). A clear justice is an injustice which tends to propagate inequalities that do not favor all members of the society but only a few.

In ensuring fairness in societies, two basic principles can be said to apply widely. The first one requires equality in the assignment of basic rights and duties. The second part maintains that social and economic inequalities such as disparities in wealth and power are just in the event they end in compensating benefits for everyone particularly for the less economically empowered individuals. Therefore, if a few earning greater benefits improve the situation of the less fortunate, no injustice is done. The bottom line is that these principles help to prevent the use of natural endowment and contingencies of social circumstance to achieve a political and economic advantage, which is purely in line with the moral point of view.

This school of thought emphasizes on equal human rights and social and economic inequalities designed to benefit the less fortunate (savings principle) and attached to offices and positions open to all under conditions of fair equality of opportunity. The application of these justice principles is greatly subjected to the priority of liberty and the priority of justice over efficiency and welfare.

Natural Law According to Robert Nozick (Anarchy, State and Utopia. 1974)

Nozick (1938-2002) on his part sought to examine the nature of the state, its justifications, and rightful functions. On this course, various concerns such as the room left to the state considering the scope of individual rights came up. In many instances, the basic human rights have wider scopes leaving a smaller room of operation for the state and its officials without infringing into individual rights. After scrutiny of the subject, Nozick noted that the state might not use its forceful mechanisms to get some citizens to help others or to prohibit activities to people for their good or protection since this move, however rightly intended, contravenes basic human rights. The ideas of minimal and extensive states are also brought up. According to the view of Nozick, the less percentage of state is the most extensive state which may be justified and any state more extensive is bound to infringe on citizen's rights. Despite many people putting forward reasons attempting to justify the extensive governance arrangement, Nozick held a different thought. He brought up several explanations to this effect.

Distributive justice is a term frequently used but is never neutral as presumed by many. People tend to believe that the term 'distribution' therein suggests that some things are being supplied. Nozick laments that there are glaring errors in the government attempts to distribute things to the citizens. Moreover, he believes that no person is entitled to control of the so-called central distribution of resources. He laments that in the present world, nothing is given for free without another thing for exchange, and the government cannot just do this. Also formulated by Nozick is the entitlement theory or the theory of self-ownership. He suggested that a person who acquires a holding by the principles of justice in the acquisition remains entitled to that holding (Rawls & Nozick, 1977). Also, a person who acquires a holding by the principle of justice in transfer receives the holding of the property in question. It can be noted that the proposed ownership procedures devoid of immoralities such as maiming, killing, enslaving, or assaulting.

In a nutshell, we can see propositions for separateness of an individual by Nozick. He supports the idea of persons seeking their good in their ways, without state interference. Such struggle should, however, promote collective good, be moral and not infringe on other people's rights.

Natural Law According to Lon L. Fuller (The Internal Morality of Law, 1964)

Fuller in his argument, rejected the traditional religious forms of natural law and instead indulged in a deep understanding of the morality (of distinction) of the laws. He, however, accepted some thoughts by the traditional natural law theorists that the unjust laws and the legal systems are not laws; a stand necessitated by his view that all laws have to meet some eight basic conditions to be counted as a genuine law. These bare minimum conditions for any law include general sufficiency, public promulgation, prospective applicable to the future behaviour, possess at least minimal clarity, be of minimal contradiction, be constant and free from frequent changes, be easier to obey and be applicable in the form that cannot be easily diverged from the intended meaning. Failure of law to pass the test of these eight conditions popularly known as 'principles of legality' made a law prone to injustice, non-predictability and not to embody certain moral standards of respect.

Positive Law

Positive laws refer to laws that are made by man and implemented by a legislative government. These laws are organized specifically for the society that guides them on how to lead their lives. They comprise of codes, statutes, and regulations that have been enforced by the legislature. It can also be termed as the legal philosophy of positivism that holds that rules made by man do not necessarily have to be connected with morality. Positive laws are secondary to natural laws (Gardner, 2011).

The Basics of Positive Laws

There are somewhat positive laws are based on. They are...