Duhaime's Law Dictionary

Natural Law Definition:

The natural rights of mankind.

Related Terms: God, Theocracy, Aequum et bonum

A legal theory developed by Greek (Aristotle) and Roman philosophers, essentially suggesting that underlying human society are inherent rules and principles, or direction established by God or some supreme being, which can be extracted from an observation of nature, and which ought to guide us in making law and followed in all regards.

Marco Tullius Cicero's description remains a beautiful statement of law and of classic of writing, even if dated and translated from Latin:

"There is in fact a true law - namely right reason - which is in accordance with nature, applies to all men, and is unchangeable and eternal. By its commands this law summons men to the performance of their duties. By its prohibitions, it restrains them from doing wrong. Its commands and prohibitions always influence good men, but are without effect upon the bad.

"To invalidate this law of human legislation is never morally right, nor is it permissible ever to restrict its operation, and to annul it is impossible. Neither the Senate nor the people can absolve us from our obligation to obey this law, and it requires no Sextus Aelms to expound and interpret it. It will not lay down one rule at Rome and another at Athens, nor will it be one rule today and another tomorrow.

Cicero"But there will be one law, eternal and unchangeable, binding at all times and upon all peoples; and there will be, as it were, one common master and ruler of mankind, namely God, who is the author of this law, its interpreter, and its sponsor. The man who will not obey it will abandon his better self, and, in denying the true nature of a man will thereby suffer the severest of penalties, though he has escaped all the other consequences which men call punishments."

Some seventeen hundred years later, the great Dutch jurist Hugo Grotius tried his hand at defining natural law:

"The law of nature is a dictate of right reason which points out that an act, according as it is or is riot in conformity with rational nature, has in it a quality of moral baseness or moral necessity; and that, in consequence, such an act is either forbidden or enjoined by the author of nature, God."

Obviously, this leaves significant room for interpretation such as the suggestion that a monarchy is issue of natural law; and that property rights are divine rights of mankind, natural law. But also abuse as natural law has been used to prohibit therapeutic abortion and birth control and discriminate against homosexuals and the handicapped and even justify slavery, genocide, war crimes and the horrendous persecution of so-called heretics.

Some authors have suggested concise synonyms for natural law :

  • Doing good and not evil;
  • Rules of universal obligation;
  • Common sense;
  • Basic morality;
  • Ethics;
  • Biological law; and
  • The law of physics.

lion and natural justiceHowever, it has never been possible to cap the limits to which, historically, others, opportunistically, have inflated the balloon of natural law to suit political or legislative purposes.

The profound spiritual, if not religious, overtones of the concept of natural law is evidence from this extract from Borden et. al. v State, and the words adopted by Justice Scott of the Supreme Court of Arkansas in 1850-51:

&"We understand all laws to be either human or divine, according as they have man or God for their author, and divine laws are of two kinds, that is to say: first, natural laws; (and) second, positive or revealed laws.

"A natural law is defined ... to be a rule which so necessarily agrees with the nature and state of man, that, without observing its maxims, the peace and happiness of society can never be preserved... These are called natural laws because a knowledge of them may be attained merely by the light of reason, from the fact of their essential agreeableness with the constitution of human nature: while, on the contrary, positive or revealed laws are not founded upon the general constitution of human nature but only upon the will of God; though in other respects such law is established upon very good reason and procures the advantage of those to whom it is sent."

Even today, natural law is deferred to as the bedrock behind universally accepted laws against murder, incest and polygamy, for example.

Although in both origin and theory, natural law transcends religion, it has been promoted especially by the Roman Catholic religion and forms a basic element of the government form, theocracy. One historic statement of natural law is the Biblical parable of the Ten Commandments.

Natural law has also been the intellectual spark that has evolved into significant principles of human rights such as the immortal words of the 1776 American Declaration of Independence and the 1789 French Declaration of the Rights of Man, from which is taken this extract:

"... natural, unalienable, and sacred rights of man ... Men are born and remain free and equal in rights."

The American document of 1776 refers to:

"... the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. 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."

William Blackstone weighed-in on natural law with this contribution, taken from the Introduction to Book 1 of his Commentaries on the Law of England (1756):

"(The) will of (man's) maker is called the law of nature. For as God, when He created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion. So, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws....

"These are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due."

In his 1901 dictionary, Walter Shumaker proposed this description of natural law:

"NATURAL LAW. The law of nature; the divine will, or the dictate of right reason, showing the moral deformity or moral necessity there is in any act, according to its suitableness or unsuitableness to a reasonable nature. Sometimes used of the law of human reason, in contradistinction to the revealed law, and sometimes of both, in contradistinction to positive law. They are independent of any artificial connections, and differ from mere presumptions of law in this essential respect, that the latter depend on and are a branch of the particular system of jurisprudence to which they belong; but mere natural presumptions are derived wholly by means of the common experience of mankind, without the aid or control of any particular rule of law, but simply from the course of nature and the habits of society. These presumptions fall within the exclusive province of the jury, who are to pass upon the facts."

To many modern jurists, natural law, as an applicable concept in legal science and especially in litigation, should be given a Christian burial: formally discarded once and for all. That a certain conduct may or may not have a counter-part or grounding in nature seems to have no bearing whatsoever as to whether or not such conduct is good for mankind or not, a decision, presumably, mankind can make on purely intellectual grounds. Further, advances in science are revealing that many previously-held laws of nature are open to question and dramatic exceptions.

Natural law is still alive and kicking in the law courts. In 2011, one Roman Catholic Bishop Thévenot is Bishop of Prince Albert Roman Catholic Diocese (Alberta, Canada) filed an affidavit in Court that suggested that homosexual acts were:

"... acts of grave depravity (and) contrary to natural law."1

As recently as 2012, Chief Justice Bauman of the Supreme Court of British Columbia found himself referring to natural law in a polygamy case:

"Aquinas overlaid such natural law arguments in favor of monogamous marriage with moral arguments from natural justice based on appeals to the dignity and the inherent worth of persons.... The Enlightenment natural law argument in favor of monogamy and against polygamy continued a line of argument about the natural foundations of sex and marriage that went back more than two millennia in the West, and was especially well-developed by Aquinas and the medieval canonists."2

In the Matter of Ranftle (December, 2011), the Appellate Division of the Supreme Court of New York wrote:

"New York's long-settled marriage recognition rule affords comity to out-of-state marriages and "recognizes as valid a marriage considered valid in the place where celebrated. This rule does not extend such recognition where the foreign marriage is contrary to the prohibitions of natural law or the express prohibitions of a statute. Same-sex marriage does not fall within either of the two exceptions to the marriage recognition rule."

Arguably, a correct statement of law as regards to modern democracies, would be that of Justice Nation of the Alberta Court of Queen's Bench in Re Indian Residential Schools:

"Natural Law is ... a code of rules which originates with the divine, nature or reason in contrast to the laws people make.

"Although the cases cited by the Plaintiffs have considered natural law in interpreting legislation, that does not convert natural law into a recognized part of the law in either Alberta or Canada. Nor does it create a positive duty on the Defendant Canada.

"Consequently, even if I assume all of the pleadings to be true and apply the most liberal reading thereto, I cannot conclude that a breach of natural law by itself constitutes a cause of action."


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