Page 54 - Encyclopedia Of World History Vol IV

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of Natural Law into Western philosophy, but in a way Finally, Locke’s Second Treatise on Civil Government
that accommodated the now-dominant moral concep- established Natural Law/Natural Rights theory as a nor-
tion of the Divine Law. mative foundation for limited, democratic government
Aquinas redefined the ultimate universal law as the and the rule of law. Locke’s political philosophy was the
Eternal Law, from which derived both the Divine Law fountainhead for the Founding Fathers’ creation of the
and the Natural Law. Bifurcating Divine Law and Nat- United States of America.
ural Law would have profound implications for the de-
velopment of modern political theory. On the one hand, The Nineteenth and
the Divine Law was the universal moral foundation for Twentieth Century
personal salvation, as guided by the rules set forth in the In the nineteenth century, Natural Law philosophy waned
Decalogue and in the commandments of the New Testa- with the rise of utilitarianism and related positivist doc-
ment. The Divine Law applied to human-made law, ac- trines. Jeremy Bentham (1748–1832) famously declared
cording to Aquinas, but only insofar as political and legal that Natural Rights were “nonsense on stilts.” Legal pos-
rules affected a person’s ability to ascend to heaven. In itivism in particular directly challenged the central prem-
this way, there was some overlap in the content of the ise of Natural Law— the necessary connection between
Natural Law and the Divine Law. moral rules and socio-political rules. For legal positivists,
On the other hand, Natural Law comprised abstract such as John Austin (1790–1869 CE), legal rules can be
moral principles necessarily intrinsic in the temporal analyzed and assessed without reference to, or reliance
world and ascertainable by reason, and from these on, moral principles. The only law is human-made law,
rational principles, people deduced proper socio-political which is conceptually distinct from moral theory.
rules. Natural Law was the universal moral foundation This raised questions about whether it was possible
for human-made law.As Aquinas would declare (quoting to form universal moral judgments about differing polit-
St.Augustine (354–430),“An unjust law is no law at all.” ical systems or rules, which became a particularly sali-
This distinction between Divine Law and Natural ent concern with the rise of totalitarian regimes in the
Law matured in the seventeenth century in the work of twentieth century. Following World War II, the Natural
Hugo Grotius (1583–1645), Samuel Pufendorf (1632– Law was called upon to condemn Nazi atrocities.Thus,
1694), and John Locke (1632–1704). It was now pos- in the second half of the twentieth century, there was a
sible to provide reasoned analyses of the normative re- revival of scholarly interest in the Natural Law. Ronald
quirements of political systems and laws without reliance Dworkin advanced the proposition of the inescapability
on particular, and most likely disputed, religious doc- of moral theory in legal decisionmaking. John M. Finnis
trine. Grotius, recognized as the “father of modern rights,” developed a version of Natural Law more closely aligned
argued that Natural Law required respecting each indi- with the moral dictates of the Catholic Church, but other
vidual’s life and liberty (suum) and property (dominion), contemporary Natural Law scholars dispute his views
which were identified as “Natural Rights.” on these matters. As it has since the time of Cicero, Nat-
Pufendorf systematized Grotius’s arguments, produc- ural Law continues to offer universal, absolute moral
ing an original and intricate Natural Law/Natural Rights rules for evaluating political institutions and human-
philosophy. His magnum opus, On the Law of Nature made laws.
and of Nations, explained how Natural Rights justified
Adam Mossoff
civil society and its myriad legal rules; this text would
serve as the principal legal treatise in Europe and would
Further Reading
be often cited by English and American judges up through
Aquinas, T. (1988). On law, morality, and politics (W. P. Baumgarth &
the late nineteenth century. R. J. Regan, Eds.). Indianapolis, IN: Hackett.