Historical Background of Natural Law

The application of natural law in its ramifications has evolved through its history. The recurrent theme among all variations is that their natural rights are given to every man by God, and therefore linking the concept of natural law to religious beliefs. Natural law however has meanings in ethics and jurisprudence,⁴⁹⁸ despite the core claims of both fields being logically independent. According to natural law ethics, the moral standards that govern the behavioural pattern of man is traceable to the nature of human beings as given by God. According to natural law jurisprudence, the fundamental principles of all law are derived from nature and the natural world, or from a supreme being, however depending on the particular perspective one sees this phenomenon. Social contract theorists, such as Hobbes, Locke or Rousseau, believed in natural law and in natural rights, which were transferred from the individual subjects to the sovereign states.⁴⁹⁹

495 See Glossary provided by Mark O. Dickerson & Tom Flanagan at

http://www.comune.venezia.it/atlante/documents/glossary/nelson_glossary.htm.

496 Hobbes, Thomas, Leviathan, Anaconda Verlag: Köln, 2009, pp.177-187.

497 Wikipedia: The Free Encyclopedia in http://en.wikipedia.org/wiki/Natural_law

498 Compare Irwin, Terence (tr.), Nichomachean Ethics, Indianapolis: Hackett Publishing Company, 1985; Kim, Hye-Kyung, Nichomachean Ethics: Aristotle with an Introduction translated by F. H. Peters in Oxford, 1893, Barnes and Noble, 2004.

499 Bertram, C., Rousseau and the Social Contract, 2003; Cooper, L., Rousseau, Nature and the Problem of the Good life, 1999; Macpherson, C. B., The Political Theory of Possessive Individualism: Hobbes to Locke, Oxford, 1962.

The state is obligated therefore, to protect individuals from each other through the mediation of its monopoly on the legitimate use of physical force. The concept of law and morality that intersect in some way is called the “overlap thesis”.⁵⁰⁰ From historical point of view, there are different theories of natural law, which differ from each other with respect to the role that morality plays in determining the authority of legal norms. An attempt shall be made here to deal with its usages separately rather than an attempt to give a single concept that binds them all together.

Greek philosophy was preoccupied with the difference between “nature” (Physics), on the one hand and “law” or “custom” (nomos), on the other hand.⁵⁰¹ Though the application of the law varied from place to place, there was however, unanimity amongst nations that natural law is the same, this was followed religiously by later philosophers. The evolvement of this tradition into a natural law can be attributed to the Stoics.⁵⁰² These theories became highly influential among Roman jurists, and consequently played a great role in the subsequent legal theory. The pagan origin of natural law notwithstanding, a comfortable number of early church-fathers particularly, in the West sought to incorporate the natural law tradition into Christianity. Notable among these church fathers was Saint Augustine of Hippo, who equated natural law with man’s prelapsarian space state; as such a life according to nature was no longer possible and men needed instead to seek salvation through the divine law and grace.⁵⁰³ In the 12^th-century, Gratian reversed this, equating the natural and divine laws but Thomas Aquinas restored natural law to its independent state, arguing that as the perfection of human reason, it could approach but not fully comprehend the Eternal law.⁵⁰⁴

500 Warner, Daniel, An Ethic of Responsibility in International Relations, Lynne Rienner Publishers, 1991, ISBN Google Print, p.155.

501 Burnet, John, Early Greek Philosophy, 1930; William Keith Chambers Guthrie, A History of Greek Philosophy: Vol. 1, The Earlier Presocratics and the Pythagoreans, 1962.

502 Compare Murray, Gilbert, The Stoic Philosophy, 1915, p.25; Russell, Bertrand, History of Western Philosophy,1946;

Harper, Douglas, November 2001, Online Etymology Dictionary-Stoic, Retrieved on September 2, 2006; Baltzly, Dirk (2004-12-13), Stanford Encyclopedia of Philosophy-Stoicism, Retrieved on September 2, 2006.

503 Compare Augustine of Hippo Sermons 358, 1 “Victoria veritatis est caritas”; Augustine of Hippo Sermons 336, 1 PL 38, 1472.

504 Aquinas, St. Thomas, The Summa Theologica, Benziger Bros, ed., translated by Fathers of the English Dominican Province,1947; See Pojman, Louis, Ethics, Belmont, CA: Wadsworth Publishing Company, 1995; Kreeft, Peter, Summa of the Summa, San Francisco: Ignatius Press, 1990, pp. 74-77, 86-87, 97-99, 105, 111-112.

According to Aquinas, all human laws were to be judged by their conformity to the natural law and an unjust law is therefore no law at all. The common law accepted this in determining the content of the law in particular case. At this point, the natural law was not only used to pass judgment on the moral worth of various laws, but also to determine what the law said in the first place. The natural law was characteristically teleological, in that it aims at the human happiness. Its content was therefore determined by a conception of what things constituted happiness, be they temporal satisfaction (as with the Stoics) or salvation (as with the Christians).

The state, in being bound by the natural law, was conceived as an institution directed at bringing its subjects to true happiness, and in the 16^th-century, the School of Salamanca (Francisco de Suarez, Francisco de Victoria) developed a philosophy of natural law.⁵⁰⁵

By the 17^th century a divergent view on the followings became manifested. Thomas Hobbes then founded a contractualist theory of Legal Positivism on what all men could agree upon: that is that they seek, which is happiness and this happiness is subject to contention, but a broad consensus could form around what they feared, that is violent death at the hands of others. The natural law therefore, is how a rational human being, seeking to survive and to prosper, would act.⁵⁰⁶ 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, on this basis, the Law of Positivism was born.⁵⁰⁷ From the various historical stages of slavery and slave trade, the analysis has shown that the application of natural law on the buying, capture, transportation and treatment of the African slaves cannot constitute any reasonable, meaningful object of discussion, because the slaves were handled without law.

To summarize the historiography of natural law, the quotation of Thomas Jefferson, who employed natural law in his appeal to inalienable rights in the declaring of independence will do justice here: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”.⁵⁰⁸

505 The School of Salamanca on the History of Economic Thought at http:// en.wikipedia.org/wiki/School_of_ Salamanca

506 Hobbes, Thomas, Leviathan, Anaconda Verlag: Köln, 2009, pp.177-187; Boucher, David and Kelly, Paul (eds.), The Social Contract from Hobbes to Rawls, Routledge, 1994.

507 See Hereth, Michael, Montesquieu: An Introduction, 1994, pp. 32f.

508 Jayne, Allen. Jefferson’s Declaration of Independence: Origins, Philosophy and Theology,1998, 200 traces TJ’s sources and emphasizes his incorporation of Deist theology into the Declaration.

This compelling statement of Jefferson describes vividly the status vis-à-vis legal status of the enslaved and their slave masters. From the analysis of slavery and particularly the Atlantic Slave Trade, the kidnappings, the involuntary enslavement and eventually the killings or murder of protesting or rebellious African slaves were an offence and a crime that needed to be addressed. The slaves, therefore, or the Africans and the Africans in Diaspora, have at least theoretically legal rights to seek for justice, albeit post mortem of the slaves.