Human rights theory is rooted in the doctrine of natural law; that is, in the belief that human morality pre-exists political systems. The doctrine of natural law also occupies a central place in legal science; it constitutes a theory of the law itself. A notion of natural law throbs always at the heart of calls for justice. In effect, it gives valid judicial criteria for positive law. The doctrine of natural law can be traced back, in the Middle Ages, to Scholasticism, to St. Thomas Aquinas, and then still further back, to ancient Greece, to
167 See below, Part IV, Chapter 3 in Hermeneutics.
168 Jerome J Shestack, “The Philosophical Foundations of Human Rights in Human Rights” in Concepts and Standards J Symonides (ed.), 2000, p. 35, Shestack, above note 164, p. 35.
Aristotle, and to the Stoics.169 However, it was only after the Middle Ages that a religious developed into a rationalistic natural law that convincingly elaborated a conception of individual natural rights. The idea that an individual might an enjoy an inherent right in opposition to an external power was clearly articulated in the context of the rationalist iusnaturalism, and the political contractualism that served as ideological support for the constitutional revolutions of the "enlightened" world. Iusnaturalism also gave birth to positivism. These 17th and 18th century philosophies sought to legitimate a new political order on the basis of individual natural rights. A close link forged between politics and natural law resulted in new principles of political legitimacy that were consistent with the notion of a social contract (contractariansm), and the idea that the state existed to help foster the full development and realization of the pre-existent (natural) individual. This was the age of John Locke, Jean-Jacob Russeau, Samuel Puffendorf, and Hugo Grotious.170 For example, it was Locke's assertion that society should be established in such a way as best to defend certain inalienable rights of Man that most inspired and influenced the writing of the American Constitution. The new moral and philosophical paradigm of the modern constitutional nation state, and the protection of the individual through universal, equal, and inalienable rights based upon natural law, came to dominate legal theory and political debate.171 Natural law, in its contemporary forms, continues to influence politics and law still today.
The conception of a new, further evolved human being, endowed with autonomy and reason and, in certain respects, therefore, independent of a divine master, is also the outcome of reflection and debate on the doctrine of natural law. The new rationalistic conception of the individual human being and his rights resulted in a certain denigration of the divine world and, at any rate, a sharper separation between matters human and divine:172 now the centre stage would be occupied almost exclusively by the autonomous, rational, moral individual, and questions that concerned his liberties and his rights. Indeed, liberty was the central theme of iusnaturalism; that is, justice through liberty, political and economic. The core thesis of rationalistic natural law establishes that the individual human being enjoys natural rights that are absolute in form. These
169 Ibid.,, p. 36.
170 Knud Haakonssen, “Natural Law and Moral Philosophy” 1996, p.15, See alsoLauterpacht, above note 22, p. 118 footnote 9.
171; Haakonssen, ibid., p. 312.
172 Knud Haakonssen,(ed.). “Grotius, Pufendorf and Modern Natural Law”, 1999 at xiii.
absolutes constitute a "higher law which is the ultimate standard of fitness of all positive law, whether national or international."173 Classical theories of natural law advance that there are certain principles of human conduct that must be converted by human action into positive law. In other words, to be valid, positive laws must conform to the principles of natural law.174 Natural rights as derivations of natural law are thereby understood to be one aspect of a morally well-ordered universe175, itself based on a notion of a common human nature that guarantees equal rights for all.176 It should now be clear that one objective of this theory is the protection of the individual against a higher authority.
A further characteristic of natural law is that its exponents understand human life from the perspective of its teleological purpose:177 for the iusnatuiralists, the law of nature is the realization of human objectives. The naturalists were of the view that things—
animate or inanimate—exist not only to continue to exist, but exist, too, in pursuit of an optimum state understood as a specific good or end (telos).178 In this context, the conception of natural rights as a means to the optimum or supreme end follows from the fact that the being of the rational and moral person must necessarily unfold in accordance with his or her moral and rational purposes or aspirations.179 The idea of the law having a telos is grounded in the fact that the law itself is not only a mirror of human experience but is a mirror, also, of human aspiration. In this way, the law is both descriptive and prescriptive.
Notwithstanding this general and abstract framework, a difficult question remains, at the concrete level, unresolved. How to determine which, from a long list, are individual rights legitimate under natural law? Which rights are natural rights? In addition, one questions whether natural law theory has the flexibility to satisfy new claims based on
173 Myres S McDougal, Harold D Lasswell, Lung-Chu Chen, “Human Rights and World Public Order”, 1980, p. 68 See also Lauterpacht, above note 22, p. 109 “their variety (applications of the term natural law) have tended to obscure the central idea which underlie them all, that of an ultimate principle of fitness with regard to the nature of man as a rational and social being, which is, or ought to be, the justification of every form of positive law”.
174 H L A Hart, “The Concept of Law”, 1994 (2nd edition), p. 186.
175 Haakonssen, above note 170, p. 310.
176 McDougal et al, above note 173, p. 69.
177 Haakonssen, above note 172 at xv.
178 Hart, above note 174, p. 188.
179 Lauterpacht, above note 22, p. 102. “The very conception of natural rights conceived as the means to the supreme and of enabeling man to fulfil his duty follows from the realization that, as a matter of scienific fact, man is distinguished from other living beings by being a rational and moral person who must shape his life in accordance with moral and rational purposes”.
contemporary conditions, an evolution in human understanding, and modern phenomena.180 For the iusnaturalists the source of these rights, generally speaking, is given in the form of absolutes. The empiricists subsequently reproached the iusnaturalists for not paying sufficient attention to the empirical element in human understanding in which circumstances determine decisions.181 This in turn led modern iusnaturalists to argue that natural law was not divorced from experience; rather, natural law contained within itself the general truths of human experience.182 Natural law as a normative theory of the prescriptive forces of nature has also been severely attacked on other fronts.183 Natural rights may all too easily be used as a substitute for legislation;
paradoxically, they encourage the abuse of their own doctrine. As illustration, it is sufficient to think of the natural law-based economic and legal justification of slavery, or the opposition to female suffrage184, or state interference with rights of property and contractual freedom. Indeed, the notion of natural law is all too often a rather too convenient source of politically expedient reasoning, a touch of laissez faire over and beyond economic doctrine. 185 This misuse and abuse of the idea of natural rights186, is the reason why some great philosophers rejected this doctrine, notably Bentham and Kelsen.187
The doctrine of natural human rights is a moral doctrine which teaches an ethical understanding of the relationship between the individual and the politically organized collective. Natural law promotes a moral code based upon the existence of a natural order; this natural law, this natural order, is valid irrespective of its recognition within a given political or social community. Natural law must be understood in a pre-governmental (vorstaatlich) or moral sense; this is critical to an overall comprehension of natural law philosophy as applied to human rights law. Natural rights are likewise valid even when not recognized or guaranteed within a given legal system.188 This pre-positivist legal force draws legitimacy from notions of justice.
180 Shestack, above note 164, p. 38.
181 McDougal et al, above note 173, p. 69.
182 Lauterpacht, above note 22, p.98.
183 Hart, above note 174, pp. 186-193.
184 Lauterpacht, above note 22, p. 104.
185 Ibid., p. 105.
186 For a more detailed exposition of the abuses of natural law as a source of justification of unfair or immoral laws Lauterpacht, Ibid., pp. 103-111.
187 Ibid., above note 22, p. 109.
188 Christoph Menke and Arnd Pollmann, “Philosophie der Menschenrechte: Eine Einführung”, 2007, p.
100.
Natural rights were understood first as basic human claims or entitlements; they were of course not understood in the modern sense of constitutional fundamental or contemporary universal human rights, that refer rather to values that assure the individual a satisfactory and decent life. We can say that the notion of natural human rights is axiological in that it asserts individual entitlement to a choice of morally appropriate life, not in a narrow legal sense but in light of certain fundamental human moral values. For the natural law scholar, human rights form part of a wider moral and ethical discourse.189 Note that this axiological characterization of natural human rights does not necessarily exclude a characterization also of a more legalistic nature. The only particularity is that, for the iusnaturalist, human rights must first and foremost be understood from an axiological perspective; only in certain historically contingent circumstances do these rights acquire a legal character. The axiological nature of human rights relate them above all to the moral character of the individual and his or her ethical values190, and not to the formal process of making law.