Natural Law Essay

The theory of Natural Law was put forward by Aristotle but championed by Aquinas (1225-74).   It is a deductive theory – it starts with basic principles, and from these the right course of action in a particular situation can be deduced.   It is deontological, looking at the intent behind an action and the nature of the act itself, not its outcomes.

Traditional natural law is based on value judgements, which emanate from some absolute source e.g. God’s revealed word. However the term “natural law” lacks a precise definition, and there is “very little agreement, even among experts or proponents of natural law theory about its application to specific, complex, moral, or legal issues”. [1] 

The unwritten body of universal moral principles that underlie the ethical and legal norms by which human conduct is sometimes evaluated and governed. Natural law is often contrasted with positive law, which consists of the written rules and regulations enacted by government. The term natural law is derived from the Roman term jus naturale. Adherents to natural law philosophy are known as naturalists.

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The major opponent to legal positivism as a conception of the nature of law goes by the label “natural law theory.” “Natural law theory” is probably not the best name for this view – it’s a bit of a historical accident that this view in the philosophy of law came to have this name – but it is the traditional label. [2] And I will not try to displace it here. Aquinas says that the principles of practical rationality-that is, those principles that tell us how to act reasonably-both are God’s law for our conduct and are knowledgeable by nature, even apart from special divine revelation. So the principles of practical rationality are both law and natural, and hence are natural law. Because Aquinas says that human law must be in accordance with reason and he sometimes says that human law must be in accordance with reason and he sometimes says that human law must be in accordance with natural law. The label is unfortunate because there are some writers who believe that the principles of rationality or morality place a constraint on legality, but who do not believe that these principles of law rationality or morality are God-given law. These writers are called natural law theorists even though they do not, strictly speaking, believe in natural law.

There are important objections to be made to Aquinas’s theory of natural law. O’ Connor rightly identifies the main one: Aquinas fails to explain ‘just how the specific moral rules which we need to guide out conduct can be shown to be connected with allegedly self-evident principles’. [3] But the objection that Aquinas’s account of natural law purposes an illicit inference from ‘is’ to ‘ought’ is quite unjustified.

What are the principles of natural law?

There is a set of basic practical principles which indicate the basic forms of human flourishing as goods to be pursued and realized, and which are in one way or another used by everyone who considers what to do, however unsound his conclusions; and a set of basic methodological requirements of practical reasonableness (itself one of the basic forms of human flourishing) which distinguish sound from unsound practical thinking and which, when all brought to bear, provide the criteria for distinguishing between acts that (always or in particular circumstances) are reasonable-all-things-considered (and not merely relative-to-a-particular purpose) and acts that a reasonable-all-things-considered, i.e. between ways of acting that are morally right or morally wrong-thus enabling one to formulate a set of general moral standards. [4] 

Naturalists believe that natural law principles are an inherent part of nature and exist regardless of whether government recognizes or enforces them. Naturalists further believe that governments must incorporate natural law principles into their legal systems before justice can be achieved. There are three schools of natural law theory: divine natural law, secular natural law, and historical natural law.

Divine natural law represents the system of principles believed to have been revealed or inspired by God or some other supreme and supernatural being. These divine principles are typically reflected by authoritative religious writings such as Scripture. Secular natural law represents the system of principles derived from the physical, biological, and behavioural laws of nature as perceived by the human intellect and elaborated through reason. Historical natural law represents the system of principles that has evolved over time through the slow accretion of custom, tradition, and experience. Each school of natural law influenced the Founding Fathers during the nascent years of U.S. law in the eighteenth century and continue to influence the decision-making process of state and federal courts today.

Religious studies are flourishing again. Most scholars were convinced that religion definitely belonged to the past and were of interest only to a tiny group of specialists. Today religious studies are pursued by a host of people in a range of departments. Because of the relevance of cultural issues to the contemporary world, religions have moved from the periphery to the very centre of public and academic concern. Their startling resurgence has given rise to the growing number of studies that explore this phenomenon in fresh, new ways. [5] Among the many publications that have appeared recently, I would like to draw attention to a volume edited by Mark C. Taylor, which appeared in 1998. Entitled Critical Terms for Religious Studies. [6] It describes the field in terms of 22 notions some of them old acquaintances, others new comers – from ‘belief’ to ‘writing’. Each article analyses the theoretical value of one of these notions, examining it in a particular “religious traditions”. [7] Another volume that appeared recently Guide to the study of Religion [8] likewise explores such notions as ‘classifications’, ‘comparison’, and ‘gender’ – 31 notions in all. Examining the concepts in the two volumes. I was struck by the absence of both ‘history’ and ‘tradition’ from each; ironically, only ‘modernity’ has survived. As it happens, though, the essay on ‘modernity’ by Gustavo Benavides in Critical Terms is not a bad substitute for the ‘two missing’. [9] 

In Ireland at present there is certain unease in an increasingly secular culture in relation to its linkages with religion and the law of god. Quinn has also stated that as “natural law drew the judiciary into novel fields, and as secularisation broke down the old conventions revealing deep divisions over first principles, it became harder to credibly assert that there was “one right way” and that the courts were uniquely positioned to identify it” [10] 

Despite the problems associated with a disenchanted secular society, there is also the added problem of ascertaining what natural law actually means. It is submitted that, “a feature of most of the judicial references to “natural law” or “natural rights” under the Constitution is that they assume that there is a general consensus about the identity of the natural law. However, the concept of “natural rights” has a variety of meanings” [11] 

The use of natural law is problematic because in fact there is no general consensus about the identity of the political, moral, judicial and theological theory being named, and there is no guarantee either that the constitution will in some sense benefit by relying on such a theory. Hogan and Kelly have also stated that, “Judicial invocation of such an un-distilled concept of natural law in the context of review presents the obvious danger that invalidation of legislation passed by the Oireachtas might not always be seen to be based on objective, ascertainable criteria” [12] 

The difficulty of interpreting the natural law

One of the issues often highlighted by opponents of the use of natural law is that it is ambiguous and consequently very difficult to interpret. Von Prondzynski notes, “There is a general aversion among lawyers at having to deal with something they cannot immediately define.” [13] The difficulties with the use of natural law cannot be denied. It has been argued, “there are two entirely different kinds of natural law theories” [14] , one secular and one based on religion. Murphy also noted that, while the state may be Christian, this does little to help define natural law as Christian groupings “fundamentally disagree as to what the divine law actually is.” [15] 

However, this difficulty is not insuperable and should not be treated as so. It is clear from the constitution and from judicial decisions such as that of Justice Kenny in the Ryan case, that a Christian type of natural law is advocated rather than a secular natural law theory. The issue of what exactly this means and how it can be applied to complex cases is more difficult to resolve. Von Prondzynski believes that “natural law in its legal sense, as seen by the Constitution has nothing whatever to do with the imposition on us all of a concise set of religious rules as propounded by the Churches.” [16] 

The difficulties of natural law interpretation could be considerably reduced by the construction of some form of guidelines for the judiciary to use. These would help the judiciary to define the natural law and to interpret it accordingly.

It is submitted that the use of natural law by the judiciary in the 1950’s and 1960’s was less contentious owing to the nature of society that existed at the time. Ireland during this period in history was relatively homogeneous in terms of its core values, and as such doing the “right thing” was not necessarily perceived as being undemocratic when everyone knew what the “right thing” was.

In Ireland at present there is certain unease in an increasingly secular culture in relation to its linkages with religion and the law of god. Quinn has also stated that as “natural law drew the judiciary into novel fields, and as secularisation broke down the old conventions revealing deep divisions over first principles, it became harder to credibly assert that there was “one right way” and that the courts were uniquely positioned to identify it”. [17] 

Despite the problems associated with a disenchanted secular society, there is also the added problem of ascertaining what natural law actually means. It is submitted that, “a feature of most of the judicial references to “natural law” or “natural rights” under the Constitution is that they assume that there is a general consensus about the identity of the natural law. However, the concept of “natural rights” has a variety of meanings”. [18] 

The use of natural law is problematic because in fact there is no general consensus about the identity of the political, moral, judicial and theological theory being named, and there is no guarantee either that the constitution will in some sense benefit by relying on such a theory. Hogan and Kelly have also stated that, “Judicial invocation of such an un-distilled concept of natural law in the context of review presents the obvious danger that invalidation of legislation passed by the Oireachtas might not always be seen to be based on objective, ascertainable criteria”. [19] 

One of the main questions therefore that emerge from the debate regarding the use of natural law is the extent to which natural law can provide guidance to members of the court in deciding constitutional issues. It can be taken for granted that in a parliamentary democracy the judicial review procedure as provided for in the constitution is necessary to defend the rights of individuals. Therefore inevitably the burden of defending the rights of individuals against oppressive legislation falls in part, on members of the court. [20] Thus while defending the rights of individuals may be a prerogative of the judiciary, one is forced to ask; Can such a prerogative ever be justified by reference to principles of natural law? And if so can such a right ever be justified in overriding the democratic will of the people? The answer is a clear no!

While there is widespread acceptance that the task of judges is to interpret the Constitution, during this process it is necessary for the judiciary to rely on the text, without reliance on sources from outside the four corners of the Constitution. Whether or not the judiciary should supplement the text cuts to the very heart of what it means to have a written Constitution, enforced by an independent judiciary, in a democratic state. As such the apparent death of natural law should not necessarily be seen as a bad thing if it results in more consistent, truly impartial, reasoned judgments from the judiciary.

Proponents of natural law often argue that the use of natural law “far from being a licence for unlimited government and a roving judiciary, natural rights and natural law arguments are the best defence of liberty and of limited government”. [21] However despite such sentiments, the decision in Re Information [22] , like all previous Article 26 references will not be overturned. What the decision in Re Information makes clear is that natural law cannot be relied upon to invalidate any explicit provision of the Constitution, however it is also suggested that it does not address what residual role natural law plays in the constitutional order. [23] 

It would appear therefore that a deep fissure exists between concepts of popular sovereignty and natural law. When “push comes to shove” the Irish judiciary have preferred the former to the latter. Therefore the politics of normative choice through the democratic process is open and not bounded by fixed notions of natural law. [24] 

• The Future of the Natural Law in Irish Constitutional Jurisprudence: Is Natural Law Dead?

The future of natural law in Irish Constitutional jurisprudence is currently far from clear. It would appear from the Supreme Court decisions in recent years that for the foreseeable future natural law will not play a significant role in constitutional jurisprudence. [25] While the recent demise of natural law has been described as “one of the great tragedies of the bitter debate on abortion” [26] , it would be wrong to conclude that the Regulation of Information Bill 1995 signalled the death of natural law. [27] They suggest that the “natural law component remains a significant aid to interpretation,” [28] although it will remain inferior to the canon of harmonious interpretation. Although not dead, natural law’s place in Irish constitutional jurisprudence has been radically altered. The doctrine now has a reduced significance in constitutional interpretation and a future growth in stature remains unforeseeable. Its application has led to many difficulties. However, the use of natural law is not without benefits and its diminution and potential evisceration by the judiciary may prove detrimental. Natural law was invoked over an extended period to protect the rights of citizens not expressly provided for in the constitution, including the right to bodily integrity, the right to travel, the right to earn a livelihood, the right to privacy and the right of access to the courts. It remains to be seen if the Supreme Court’s decision will prevent the recognition of further unremunerated rights.

Natural law will remain a significant aid in constitutional interpretation, however it is submitted that it will not be as influential as it has been in the past.

In order to be really effective, the natural law must have its first home not in the judiciary, but in the population at large and in a constitutional democracy this means in the populace as represented in legislatures. That legislation and not adjudication should be the primary forum for the application of the natural law seems to have been recognized by no less an authority than St. Thomas Aquinas. [29] Here it is noteworthy that the application of natural law by Irish judges has largely been in the context of fundamental rights jurisprudence, for it is precisely when the substantive structures and ethos of community begin to break down that legal issues become primarily issues of rights. [30] So here the debate over natural law may ironically be a 178 Catholic Social Science Review function of the secularization process itself and suggests the larger question of the extent to which cultural problems lend themselves to judicial answers. Is it a coincidence that the increase in the activity of constitutional courts in the realm of personal rights, an increase which visible on a global scale, is taking place in a time of increasing secularization and cultural dislocation? [31] 

Why is it that the natural law doctrine, despite its flaws and inconsistencies, has had such an influence in the history of European thought? Kelsens’ answer is that natural law ‘satisfies a deeply-rooted need of the human mind, the need for justification. To justify the subjective value judgements which emerge from the emotional element of his consciousness, man tries to present them as objective principles by transferring to them the dignity of truth, to make them propositions of the same order as statements about reality. Hence he pretends to deduce them from reality, which implies that value is imminent in reality’. [32] This has a comforting corollary: belief in natural law enables a person to obey a civil law, not because he is compelled to do so by the civil power, but because of the law’s intrinsic value. But, as we have learned, at the heart of Kelsons’s argument lies the contention that value is not imminent in reality. Natural law nevertheless strikes a chord with a long-lasting and deep-seated need felt by mankind – the need for certainty, for the existence of truths that are absolute and unchanging. [33] 

For writers down the ages it has been a quality of natural law that it is eternal and universal. Finnis believes that the principles of natural law hold good, as principles, however extensively they may be overlooked, misapplied or defied and however little they may be recognised. They ‘would “hold good” just as the mathematical principles of accounting “hold good” even where, as in medieval banking community, they are unknown and misunderstood’. [34]