At a Glance International Law:
International law is the term commonly used for referring to laws that govern the conduct of independent nations in their relationships with one another. It differs from other legal systems in that it primarily concerns provinces rather than private citizens. In other words it is that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and (a) The rules of law relating to the function of international institutions or organizations, their relations with each other and their relations with States and individuals; and
(b) Certain rules of law relating to individuals and non-state entities so far as the rights and duties of such individuals and non-state entities are the concern of the international community. However, the term "international law" can refer to three distinct legal disciplines
• Public international law, which governs the relationship between provinces and international entities, either as an individual or as a group. It includes the following specific legal field such as the treaty law, law of sea, international criminal law and the international humanitarian law.
• Private international law, or conflict of laws, which addresses the questions of (1) in which legal jurisdiction may a case be heard; and (2) the law concerning which jurisdiction(s) apply to the issues in the case
• Supranational law or the law of supranational organizations, which concerns at present regional agreements where the special distinguishing quality is that laws of nation states are held inapplicable when conflicting with a supranational legal system.
The two traditional branches of the field are:
• jus gentium — law of nations
• jus inter gentes — agreements among nations
Entities that create international law:
- States
- International organizations (which are composed of states)
Subjects of international law, who bear the rights and duties of international law:
- states
o international law developed to regulate states because of:
the emergence of states
state interaction
development of the laws of war
• Purpose for laws of war: it is in the mutual interests of all states to regulate the conduct of war, and in trying to agree on rules that will make it unlikely that war will happen.
o The Classic Model of relations between/among states
States are opaque (billiard ball theory – states hit each other one the outside but do not interfere with one another’s internal affairs) and we don’t really look at what’s inside
• Thus, international law only regulated relations between states, and did not regulate the internal affairs of states
Now, international law is also used to regulate the internal affairs of states
- Individuals
o The person has become increasingly accepted as an independent actor, subject to and benefiting from international law (this is a recent development)
o Individuals are not parties to international law – they can be a bearer of duties and a beneficiary of rights, but they are not parties to international law
- corporations
- international organizations
o for the purposes of our class, an international organization is an organization composed either solely or primarily of states, like the United Nations
Sources of international law:
- Customary international law
o Article 38 of the ICJ
- Treaties
o A treaty is an agreement between states, between states and international organizations, or between international organizations, that is binding under international law (something binding under the laws of one state is not international)
o Treaties are binding and legally enforced upon the parties to it
o Treaties can be bilateral or multilateral
- The general principles of law recognized by civilized nations
- Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law
Both the Statute of the ICJ, Article 38 lists the sources of international law (see p. 3 in book for more)
- ICJ, Article 38:
o “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
(a) International conventions…
(b) international custom, as evidence of a general practice accepted as law
(c) the general principles of law recognized by civilized nations
(d) judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law
The Restatement, Second, of Foreign Relations, Section 102, defines customary international law
- Restatement Section 102
o “(2) Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.” (referred to as “state practice”)
o so customary law is composed of two elements:
it is the general and consistent practice of states
the states follow this practice out of a sense of legal obligation
o it appears that only states make customary international law
o customary international evolves – if enough states adopt a new practice, which is in violation of customary international law, the new practice becomes the new customary international law
Jus Cogens
- VCLT, Article 53: “a peremptory norm of general international law which is accepted by the international community of states as a whole as a norm from which no derogation is permitted”
Includes genocide, torture, slavery
Definition of Natural Law :
Natural law or the law of nature (Latin: lex naturalis) has been described as a law whose content is set by nature and is thus universal. As classically used, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. The phrase natural law is opposed to the positive law (meaning "man-made law", not "good law"; cf. posit) of a given political community, society, or nation-state, and thus can function as a standard by which to criticize that law. In natural law jurisprudence, on the other hand, the content of positive law cannot be known without some reference to the natural law (or something like it). Used in this way, natural law can be invoked to criticize decisions about the statutes, but less so to criticize the law itself. Some use natural law synonymously with natural justice or natural right (Latin ius naturale)
Although natural law is often conflated with common law, the two are distinct in that natural law is a view that certain rights or values are inherent in or universally cognizable by virtue of human reason or human nature, while common law is the legal tradition whereby certain rights or values are legally cognizable by virtue of judicial recognition or articulation. Natural law theories have, however, exercised a profound influence on the development of English common law, and have featured greatly in the philosophies of Thomas Aquinas, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, John Locke, Francis Hutcheson, Jean Jacques Burlamaqui, and Emmerich de Vattel. Because of the intersection between natural law and natural rights, it has been cited as a component in United States Declaration of Independence and the Constitution of the United States. The essence of Declarationism is that the founding of the United States is based on Natural law.
Essence of Natural Law
In English this term is frequently employed as equivalent to the laws of nature, meaning the order which governs the activities of the material universe. Among the Roman jurists natural law designated those instincts and emotions common to man and the lower animals, such as the instinct of self-preservation and love of offspring. In its strictly ethical application—the sense in which this article treats it—the natural law is the rule of conduct which is prescribed to us by the Creator in the constitution of the nature with which He has endowed us.
According to St. Thomas, the natural law is "nothing else than the rational creature's participation in the eternal law" (I-II.94). The eternal law is God's wisdom, inasmuch as it is the directive norm of all movement and action. When God willed to give existence to creatures, He willed to ordain and direct them to an end. In the case of inanimate things, this Divine direction is provided for in the nature which God has given to each; in them determinism reigns. Like all the rest of creation, man is destined by God to an end, and receives from Him a direction towards this end. This ordination is of a character in harmony with his free intelligent nature. In virtue of his intelligence and free will, man is master of his conduct. Unlike the things of the mere material world he can vary his action, act, or abstain from action, as he pleases. Yet he is not a lawless being in an ordered universe. In the very constitution of his nature, he too has a law laid down for him, reflecting that ordination and direction of all things, which is the eternal law. The rule, then, which God has prescribed for our conduct, is found in our nature itself. Those actions which conform with its tendencies, lead to our destined end, and are thereby constituted right and morally good; those at variance with our nature are wrong and immoral.
The norm, however, of conduct is not some particular element or aspect of our nature. The standard is our whole human nature with its manifold relationships, considered as a creature destined to a special end. Actions are wrong if, though subserving the satisfaction of some particular need or tendency, they are at the same time incompatible with that rational harmonious subordination of the lower to the higher which reason should maintain among our conflicting tendencies and desires (see GOOD). For example, to nourish our bodies is right; but to indulge our appetite for food to the detriment of our corporal or spiritual life is wrong. Self-preservation is right, but to refuse to expose our life when the well-being of society requires it, is wrong. It is wrong to drink to intoxication, for, besides being injurious to health, such indulgence deprives one of the use of reason, which is intended by God to be the guide and dictator of conduct. Theft is wrong, because it subverts the basis of social life; and man's nature requires for its proper development that he live in a state of society. There is, then, a double reason for calling this law of conduct natural: first, because it is set up concretely in our very nature itself, and second, because it is manifested to us by the purely natural medium of reason. In both respects it is distinguished from the Divine positive law, which contains precepts not arising from the nature of things as God has constituted them by the creative act, but from the arbitrary will of God. This law we learn not through the unaided operation of reason, but through the light of supernatural revelation.
The contents of the natural law:
Radically, the natural law consists of one supreme and universal principle, from which are derived all our natural moral obligations or duties. We cannot discuss here the many erroneous opinions regarding the fundamental rule of life. Some of them are utterly false—for instance, that of Bentham, who made the pursuit of utility or temporal pleasure the foundation of the moral code, and that of Fichte, who taught that the supreme obligation is to love self above everything and all others on account of self. Others present the true idea in an imperfect or one-sided fashion. Epicurus, for example, held the supreme principle to be, "Follow nature"; the Stoics inculcated living according to reason. But these philosophers interpreted their principles in a manner less in conformity with our doctrine than the tenor of their words suggests. Catholic moralists, though agreeing upon the underlying conception of the Natural Law, have differed more or less in their expression of its fundamental formula. Among many others we find the following: "Love God as the end and everything on account of Him"; "Live conformably to human nature considered in all its essential respects"; "Observe the rational order established and sanctioned by God"; "Manifest in your life the image of God impressed on your rational nature." The exposition of St. Thomas is at once the most simple and philosophic. Starting from the premise that good is what primarily falls under the apprehension of the practical reason—that is of reason acting as the dictator of conduct—and that, consequently, the supreme principle of moral action must have the good as its central idea, he holds that the supreme principle, from which all the other principles and precepts are derived, is that good is to be done, and evil avoided (I-II, Q, xciv, a. 2).
Passing from the primary principle to the subordinate principles and conclusions, moralists divide these into two classes: (1) those dictates of reason which flow so directly from the primary principle that they hold in practical reason the same place as evident propositions in the speculative sphere, or are at least easily deducible from the primary principle. Such, for instance, are "Adore God"; "Honour your parents"; "Do not steal"; (2) those other conclusions and precepts which are reached only through a more or less complex course of inference. It is this difficulty and uncertainty that requires the natural law to be supplemented by positive law, human and Divine. As regards the vigour and binding force of these precepts and conclusions, theologians divide them into two classes, primary and secondary. To the first class belong those which must, under all circumstances, be observed if the essential moral order is to be maintained. The secondary precepts are those whose observance contributes to the public and private good and is required for the perfection of moral development, but is not so absolutely necessary to the rationality of conduct that it may not be lawfully omitted under some special conditions. For example, under no circumstances is polyandry compatible with the moral order, while polygamy, though inconsistent with human relations in their proper moral and social development, is not absolutely incompatible with them under less civilized conditions.
The qualities of the natural law:
(a) The natural law is universal, that is to say, it applies to the entire human race, and is in itself the same for all. Every man, because he is a man, is bound, if he will conform to the universal order willed by the Creator, to live conformably to his own rational nature, and to be guided by reason. However, infants and insane persons, who have not the actual use of their reason and cannot therefore know the law, are not responsible for that failure to comply with its demands. (b) The natural law is immutable in itself and also extrinsically. Since it is founded in the very nature of man and his destination to his end—two bases which rest upon the immutable ground of the eternal law—it follows that, assuming the continued existence of human nature, it cannot cease to exist. The natural law commands and forbids in the same tenor everywhere and always. We must, however, remember that this immutability pertains not to those abstract imperfect formulæ in which the law is commonly expressed, but to the moral standard as it applies to action in the concrete, surrounded with all its determinate conditions. We enunciate, for instance, one of the leading precepts in the words: "Thou shalt not kill"; yet the taking of human life is sometimes a lawful, and even an obligatory act. Herein exists no variation in the law; what the law forbids is not all taking of life, but all unjust taking of life.
With regard to the possibility of any change by abrogation or dispensation, there can be no question of such being introduced by any authority except that of God Himself. But reason forbids us to think that even He could exercise such power, because, given the hypothesis that He wills man to exist, He wills him necessarily to live conformably to the eternal law, by observing in his conduct the law of reason. The Almighty, then, cannot be conceived as willing this and simultaneously willing the contradictory, that man should be set free from the law entirely through its abrogation, or partially through dispensation from it. It is true that some of the older theologians, followed or copied by some later ones, hold that God can dispense, and, in fact in some instances, has dispensed from the secondary precepts of the natural law, while others maintain that the bearing of the natural law is changed by the operation of positive law. However, an examination of the arguments offered in support of these opinions shows that the alleged examples of dispensation are: (a) cases where a change of conditions modifies the application of the law, or (b) cases concerning obligations not imposed as absolutely essential to the moral order, though their fulfillment is necessary for the full perfection of conduct, or (c) instances of addition made to the law.
As examples of the first category are cited God's permission to the Hebrews to despoil the Egyptians, and His command to Abraham to sacrifice Isaac. But it is not necessary to see in these cases a dispensation from the precepts forbidding theft and murder. As the Sovereign Lord of all things, He could withdraw from Isaac his right to life, and from the Egyptians their right of ownership, with the result that neither would the killing of Isaac be an unjust destruction of life, nor the appropriation of the Egyptians' goods the unjust taking of another's property. The classic instance alleged as an example of (b) is the legalization of polygamy among the Hebrews. Polygamy, however, is not under all circumstances incompatible with the essential principles of a rationally ordered life, since the chief ends prescribed by nature for the marital union—the propagation of the race and the due care and education of offspring—may, in certain states of society, be attained in a polygamous union. The theory that God can dispense from any part of the law, even from the secondary precepts, is scarcely compatible with the doctrine, which is the common teaching of the School, that the natural law is founded on the eternal law, and, therefore, has for its ultimate ground the immutable essence of God himself. As regards (c), when positive law, human or Divine, imposes obligations which only modify the bearing of the natural law, it cannot correctly be said to change it. Positive law may not ordain anything contrary to the natural law, from which it draws its authority; but it may—and this is one of its functions—determine with more precision the bearing of the natural law, and for good reasons, supplement its conclusions. For example, in the eyes of the natural law mutual verbal agreement to a contract is sufficient; yet, in many kinds of contract, the civil law declares that no agreement shall be valid, unless it be expressed in writing and signed by the parties before witnesses. In establishing this rule the civil authority merely exercises the power which it derives from the natural law to add to the operation of the natural law such conditions as the common good may call for. Contrary to the almost universally received doctrine, a few theologians held erroneously that the natural law depends not on the essential necessary will of God, but upon His arbitrary positive will, and taught consistently with this view, that the natural law may be dispensed from or even abrogated by God. The conception, however, that the moral law is but an arbitrary enactment of the Creator, involves the denial of any absolute distinction between right and wrong—a denial which, of course, sweeps away the very foundation of the entire moral order.
Founded in our nature and revealed to us by our reason, the moral law is known to us in the measure that reason brings a knowledge of it home to our understanding. The question arises: How far can man be ignorant of the natural law, which, as St. Paul says, is written in the human heart (Romans 2:14)? The general teaching of theologians is that the supreme and primary principles are necessarily known to every one having the actual use of reason. These principles are really reducible to the primary principle which is expressed by St. Thomas in the form: "Do good and avoid evil". Wherever we find man we find him with a moral code, which is founded on the first principle that good is to be done and evil avoided. When we pass from the universal to more particular conclusions, the case is different. Some follow immediately from the primary, and are so self-evident that they are reached without any complex course of reasoning. Such are, for example: "Do not commit adultery"; "Honour your parents". No person whose reason and moral nature is ever so little developed can remain in ignorance of such precepts except through his own fault. Another class of conclusions comprises those which are reached only by a more or less complex course of reasoning. These may remain unknown to, or be misinterpreted even by persons whose intellectual development is considerable. To reach these more remote precepts, many facts and minor conclusions must be correctly appreciated, and, in estimating their value, a person may easily err, and consequently, without moral fault, come to a false conclusion.
A few theologians of the seventeenth and eighteenth centuries, following some older ones, maintained that there cannot exist in anyone practical ignorance of the natural law. This opinion however has no weight (for the controversy see Bouquillon, "Theologia Fundamentalis", n. 74). Theoretically speaking, man is capable of acquiring a full kowledge of the moral law, which is, as we have seen, nothing but the dictates of reason properly exercised. Actually, taking into consideration the power of passion, prejudice, and other influences which cloud the understanding or pervert the will, one can safely say that man, unaided by supernatural revelation, would not acquire a full and correct knowledge of the contents of the natural law (cf. Vatican Council, Sess. III, cap. ii). In proof we need but recall that the noblest ethical teaching of pagans, such as the systems of Plato, Aristotle, and the Stoics, was disfigured by its approbation of shockingly immoral actions and practices.
As the fundamental and all-embracing obligation imposed upon man by the Creator, the natural law is the one to which all his other obligations are attached. The duties imposed on us in the supernatural law come home to us, because the natural law and its exponent, conscience, tell us that, if God has vouchsafed to us a supernatural revelation with a series of precepts, we are bound to accept and obey it. The natural law is the foundation of all human law inasmuch as it ordains that man shall live in society, and society for its constitution requires the existence of an authority, which shall possess the moral power necessary to control the members and direct them to the common good. Human laws are valid and equitable only in so far as they correspond with, and enforce or supplement the natural law; they are null and void when they conflict with it. The United States system of equity courts, as distinguished from those engaged in the administration of the common law, are founded on the principle that, when the law of the legislator is not in harmony with the dictates of the natural law, equity (æquitas, epikeia) demands that it be set aside or corrected. St. Thomas explains the lawfulness of this procedure. Because human actions, which are the subject of laws are individual and innumerable, it is not possible to establish any law that may not sometimes work out unjustly. Legislators, however, in passing laws attend to what commonly happens, though to apply the common rule will sometimes work injustice and defeat the intention of the law itself. In such cases it is bad to follow the law; it is good to set aside its letter and follow the dictates of justice and the common good (II-II.120.1). Logically, chronologically, and ontologically antecedent to all human society for which it provides the indispensable basis, the natural or moral law is neither—as Hobbes, in anticipation of the modern positivistic school, taught—a product of social agreement or convention, nor a mere congeries of the actions, customs, and ways of man, as claimed by the ethicists who, refusing to acknowledge the First Cause as a Personality with whom one entertains personal relations, deprive the law of its obligatory basis. It is a true law, for through it the Divine Mind imposes on the subject minds of His rational creatures their obligations and prescribes their duties.
Theories of Natural Law :
Plato
Although Plato does not have an explicit theory of natural law, (he almost never uses the phrase natural law except in Georgias 484 and Timaeus 83E), his concept of nature, according to John Wild, a Professor of Philosophy at Harvard from 1927 to 1961, contains some of the elements found in many natural law theories.[5] According to Plato we live in an orderly universe. At the basis of this orderly universe or nature are the Forms and most fundamentally the Form of the Good which Plato describes as "the brightest region of Being". The Form of the Good is the cause of all things and when it is seen it leads a person to act wisely. In the Symposium the Good is closely identified with the Beautiful.[9] Also in the Symposium Plato describes how the experience of the Beautiful by Socrates enables him to resist the temptations of wealth and sex. In the Republic the ideal community is “a city which would be established in accordance with nature.”
Aristotle
Greek philosophy emphasized the distinction between "nature" (physis, φúσις) on the one hand and "law", "custom", or "convention" (nomos, νóμος) on the other. What the law commanded varied from place to place, but what was "by nature" should be the same everywhere. A "law of nature" would therefore have had the flavor more of a paradox than something which obviously existed. Against the conventionalism that the distinction between nature and custom could engender, Socrates and his philosophic heirs, Plato and Aristotle, posited the existence of natural justice or natural right (dikaion physikon, δικαιον φυσικον, Latin ius naturale). Of these, Aristotle is often said to be the father of natural law.
Aristotle's association with natural law is due largely to the interpretation given to his works by Thomas Aquinas. This was based on Aquinas's conflation of natural law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics (Book IV of the Eudemian Ethics). Aquinas's influence was such as to affect a number of early translations of these passages, though more recent translations render them more literally. Aristotle notes that natural justice is a species of political justice, viz. the scheme of distributive and corrective justice that would be established under the best political community; were this to take the form of law, this could be called a natural law, though Aristotle does not discuss this and suggests in the Politics that the best regime may not rule by law at all.
The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric, where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature. The context of this remark, however, suggests only that Aristotle advised that it could be rhetorically advantageous to appeal to such a law, especially when the "particular" law of one's own city was averse to the case being made, not that there actually was such a law; Aristotle, moreover, considered two of the three candidates for a universally valid, natural law provided in this passage to be wrong.[1] Aristotle's theoretical paternity of the natural law tradition is consequently disputed.
Stoic natural law
The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics. The rise of natural law as a universal system coincided with the rise of large empires and kingdoms in the Greek world. Whereas the "higher" law to which Aristotle suggested one could appeal was emphatically natural, in contradistinction to being the result of divine positive legislation, the Stoic natural law was indifferent to the divine or natural source of the law: the Stoics asserted the existence of a rational and purposeful order to the universe (a divine or eternal law), and the means by which a rational being lived in accordance with this order was the natural law, which spelled out action that accorded with virtue.
As the historian A.J. Carlyle notes: "There is no change in political theory so startling in its completeness as the change from the theory of Aristotle to the later philosophical view represented by Cicero and Seneca.... We think that this cannot be better exemplified than with regard to the theory of the equality of human nature." Charles H. McIlwain likewise observes that "the idea of the equality of men is the profoundest contribution of the Stoics to political thought" and that "its greatest influence is in the changed conception of law that in part resulted from it."
Cicero
Cicero wrote in his De Legibus that both justice and law derive their origin from God. For Cicero, natural law obliges us to contribute to the general good of the larger society. The purpose of positive laws is to provide for "the safety of citizens, the preservation of states, and the tranquility and happiness of human life." In this view, "wicked and unjust statutes" are "anything but 'laws,'" because "in the very definition of the term 'law' there inheres the idea and principle of choosing what is just and true." Law, for Cicero, "ought to be a reformer of vice and an incentive to virtue." Cicero expressed the view that "the virtues which we ought to cultivate, always tend to our own happiness, and that the best means of promoting them consists in living with men in that perfect union and charity which are cemented by mutual benefits."
Cicero influenced the discussion of natural law for many centuries to come, up through the era of the American Revolution. The jurisprudence of the Roman Empire was rooted in Cicero, who held "an extraordinary grip . . . upon the imagination of posterity" as "the medium for the propagation of those ideas which informed the law and institutions of the empire." Cicero's conception of natural law "found its way to later centuries notably through the writings of Saint Isidore of Seville and the Decretum of Gratian." Thomas Aquinas, in his summary of medieval natural law, quoted Cicero's statement that "nature" and "custom" were the sources of a society's laws.
English jurisprudence
Heinrich A. Rommen has observed "the tenacity with which the spirit of the English common law retained the conceptions of natural law and equity which it had assimilated during the Catholic Middle Ages, thanks especially to the influence of Henry de Bracton (d. 1268) and Sir John Fortescue (d. cir. 1476). Bracton's translator notes that Bracton "was a trained jurist with the principles and distinctions of Roman jurisprudence firmly in mind"; but Bracton adapted such principles to English purposes rather than copying slavishly. In particular, Bracton turned the imperial Roman maxim that "the will of the prince is law" on its head, insisting that the king is under the law. The legal historian Charles F. Mullett has noted Bracton's "ethical definition of law, his recognition of justice, and finally his devotion to natural rights." Bracton considered justice to be the "fountain-head" from which "all rights arise." For his definition of justice, Bracton quoted the twelfth-century Italian jurist Azo: "'Justice is the constant and unfailing will to give to each his right.'" Bracton's work was the second legal treatise studied by the young apprentice lawyer Thomas Jefferson.
Sir John Fortescue stressed "the supreme importance of the law of God and of nature" in works that "profoundly influenced the course of legal development in the following centuries." The legal scholar Ellis Sandoz has noted that "the historically ancient and the ontologically higher law--eternal, divine, natural--are woven together to compose a single harmonious texture in Fortescue's account of English law." As the legal historian Norman Doe explains: "Fortescue follows the general pattern set by Aquinas. The objective of every legislator is to dispose people to virtue. It is by means of law that this is accomplished. Fortescue's definition of law (also found in Accursius and Bracton), after all, was 'a sacred sanction commanding what is virtuous [honesta] and forbidding the contrary.'" Fortescue cited Leonardo Bruni for his statement that "virtue alone produces happiness."
Christopher St. Germain's Doctor and Student was a classic of English jurisprudence, and it was thoroughly annotated by Thomas Jefferson. St. Germain informs his readers that English lawyers generally don't use the phrase "law of nature," but rather use "reason" as the preferred synonym. Norman Doe notes that St. Germain's view "is essentially Thomist," quoting Thomas Aquinas's definition of law as "an ordinance of reason made for the common good by him who has charge of the community, and promulgated."
Sir Edward Coke was the preeminent jurist of his time. Coke's preeminence extended across the ocean: "For the American revolutionary leaders, 'law' meant Sir Edward Coke's custom and right reason." Coke defined law as "perfect reason, which commands those things that are proper and necessary and which prohibits contrary things." For Coke, human nature determined the purpose of law; and law was superior to any one man's reason or will. Coke's discussion of natural law appears in his report of Calvin's Case (1608): "The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction." In this case the judges found that "the ligeance or faith of the subject is due unto the King by the law of nature: secondly, that the law of nature is part of the law of England: thirdly, that the law of nature was before any judicial or municipal law: fourthly, that the law of nature is immutable." To support these findings, the assembled judges (as reported by Coke, who was one of them) cited as authorities Aristotle, Cicero, and the Apostle Paul; as well as Bracton, Fortescue, and St. Germain.
American jurisprudence
The U.S. Declaration of Independence states that it has become necessary for the United States to assume "the separate and equal station to which the Laws of Nature and of Nature's God entitle them". Some early American lawyers and judges perceived natural law as too tenuous, amorphous and evanescent a legal basis for grounding concrete rights and governmental limitations. Natural law did, however, serve as authority for legal claims and rights in some judicial decisions, legislative acts, and legal pronouncements. Robert Lowry Clinton argues that the U.S. Constitution rests on a common law foundation and the common law, in turn, rests on a classical natural law foundation.
Islamic natural law
Abū Rayhān al-Bīrūnī, an Islamic scholar and polymath scientist, understood natural law as the law of the jungle. He argued that the antagonism between human beings can only be overcome through a divine law, which he believed to have been sent through prophets. This is also the position of the Ashari school, the largest school of Sunni theology. Averroes (Ibn Rushd), in his treatise on Justice and Jihad and his commentary on Plato's Republic, writes that the human mind can know of the unlawfulness of killing and stealing and thus of the five maqasid or higher intents of the Islamic sharia or to protect religion, life, property, offspring, and reason. The concept of natural law entered the mainstream of Western culture through his Aristotelian commentaries, influencing the subsequent Averroist movement and the writings of Thomas Aquinas.
The Maturidi school, the second largest school of Sunni theology, posits the existence of a form of natural law. Abu Mansur al-Maturidi stated that the human mind could know of the existence of God and the major forms of 'good' and 'evil' without the help of revelation. Al-Maturidi gives the example of stealing which is known to be evil by reason alone due to man's working hard for his property. Killing, fornication, and drinking alcohol were all 'evils' which the human mind could know of according to al-Maturidi. The concept of Istislah in Islamic law bears some similarities to the natural law tradition in the West, as exemplified by Thomas Aquinas. However, whereas natural law deems good that which is known self-evidently to be good, according as it tends towards the fulfilment of the person, istislah calls good whatever is connected to one of five "basic goods". Al-Ghazali abstracted these "basic goods" from the legal precepts in the Qur'an and Sunnah: they are religion, life, reason, lineage and property. Some add also "honour". Ibn Qayyim Al-Jawziyya also posited that human reason could discern between 'great sins' and good deeds.
Hobbes
By the 17th Century, the Medieval teleological view came under intense criticism from some quarters. Thomas Hobbes instead founded a contractualist theory of legal positivism on what all men could agree upon: what they sought (happiness) was subject to contention, but a broad consensus could form around what they feared (violent death at the hands of another). The natural law was how a rational human being, seeking to survive and prosper, would act. It was discovered by considering humankind's natural rights, whereas previously it could be said that natural rights were discovered by considering the natural law. In Hobbes' opinion, the only way natural law could prevail was for men to submit to the commands of the sovereign. Because the ultimate source of law now comes from the sovereign, and the sovereign's decisions need not be grounded in morality, legal positivism is born. Jeremy Bentham's modifications on legal positivism further developed the theory.
As used by Thomas Hobbes in his treatises Leviathan and De Cive, natural law is "a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or takes away the means of preserving the same; and to omit that by which he thinks it may best be preserved."
Liberal natural law
Liberal natural law grew out of the medieval Christian natural law theories and out of Hobbes' revision of natural law, sometimes in an uneasy balance of the two.
Hugo Grotius based his philosophy of international law on natural law. In particular, his writings on freedom of the seas and just war theory directly appealed to natural law. About natural law itself, he wrote that "even the will of an omnipotent being cannot change or abrogate" natural law, which "would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs." (De iure belli ac pacis, Prolegomeni XI). This is the famous argument etiamsi daremus (non esse Deum), that made natural law no longer dependent on theology.
John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government. There is considerable debate about whether his conception of natural law was more akin to that of Aquinas (filtered through Richard Hooker) or Hobbes' radical reinterpretation, though the effect of Locke's understanding is usually phrased in terms of a revision of Hobbes upon Hobbesean contractualist grounds. Locke turned Hobbes' prescription around, saying that if the ruler went against natural law and failed to protect "life, liberty, and property," people could justifiably overthrow the existing state and create a new one.
While Locke spoke in the language of natural law, the content of this law was by and large protective of natural rights, and it was this language that later liberal thinkers preferred. Thomas Jefferson, arguably echoing Locke, appealed to unalienable rights in the Declaration of Independence, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
The Belgian philosopher of law Frank van Dun is one among those who are elaborating a secular conception of natural law in the liberal tradition. Libertarian theorist Murray Rothbard argues that "the very existence of a natural law discoverable by reason is a potentially powerful threat to the status quo and a standing reproach to the reign of blindly traditional custom or the arbitrary will of the State apparatus." Ludwig von Mises states that he relaid the general sociological and economic foundations of the liberal doctrine upon utilitarianism, rather than natural law, but R.A. Gonce argues that "the reality of the argument constituting his system overwhelms his denial." David Gordon notes, "When most people speak of natural law, what they have in mind is the contention that morality can be derived from human nature. If human beings are rational animals of such-and-such a sort, then the moral virtues are...(filling in the blanks is the difficult part)."
However, a secular critique of the natural law doctrine was stated by Pierre Charron in his De la sagesse (1601): "The sign of a natural law must be the universal respect in which it is held, for if there was anything that nature had truly commanded us to do, we would undoubtedly obey it universally: not only would every nation respect it, but every individual. Instead there is nothing in the world that is not subject to contradiction and dispute, nothing that is not rejected, not just by one nation, but by many; equally, there is nothing that is strange and (in the opinion of many) unnatural that is not approved in many countries, and authorized by their customs."
Contemporary Catholic understanding
The Roman Catholic Church holds the view of natural law set forth by Thomas Aquinas, particularly in his Summa Theologica, and often as filtered through the School of Salamanca. This view is also shared by some Protestant churches.
The Catholic Church understands human beings to consist of body and mind, the physical and the non-physical (or soul perhaps), and that the two are inextricably linked. Humans are capable of discerning the difference between good and evil because they have a conscience. There are many manifestations of the good that we can pursue. Some, like procreation, are common to other animals, while others, like the pursuit of truth, are inclinations peculiar to the capacities of human beings.
To know what is right, one must use one's reason and apply it to Aquinas' precepts. This reason is believed to be embodied, in its most abstract form, in the concept of a primary precept: "Good is to be sought, evil avoided."
Impact of Natural Law in International Law :
1. In the Ancient Rome the Natural Law was defined by the “jus naturale”. In “jus naturale” it was described that all States are equal. This is a very recognized Principle in the modern International Law. The idea of international law in Roman times is a complicated one. For, not only does the Roman Republic and following empire itself dominate a long period of time in history, but also the very debate over whether or not the term "international law" is an applicable term is not yet decided. Many scholars and authors define international law as "the law governing relations between sovereign, territorial states." Any attempt to find a similar parallel in Roman law would find a logical starting point in the ius gentium (the laws of nations). The ius gentium began as a Roman recognition of like legal practices and institutions (such as slavery) that was found at that time in most states. This brand of law was in fact private law in itself and mainly dictated the way in which the Roman state was to deal with individual foreigners, not entire states. However, when citizenship was granted to all free men in the empire in 212 A.D. ius gentium ceased to cling to its original definition and instead was applied to states as a whole. Some semblance of modern international law can therefore be found in this shift. The actual extent of these origins and their relevance to modern law is a topic that has not yet been approached in any depth.
2. “No one can judge in his own case” this is Natural Law principles and it maintains in International Law.
Natural Law and International Law in the American Tradition:
The UNITED STATES HAS, from its foundation as a nation, grounded its approach to international law on concepts of natural law and natural rights. This approach has provided the United Sates with the normative and intellectual bases for addressing new problems of international law in a distinctly American way and has contributed to American leadership in the development of international law. Since the American Peace Society has always been particularly concerned with the development of international law, it is appropriate in this anniversary volume to recall some of the ways in which this distinctively American approach to international law has been manifested.
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