Law and Morality

Atty. David Robert C. Aquino, CSEE

Although greatly reduced in influenced with the advent of positivism, natural law is still considered a
necessary intellectual opposition to totalitarian theories of modern governance particularly in the
aspect of human rights.
Personally, I believe that one can never have a full and satisfactory discussion of human rights
without mentioning the attendant concepts that natural right theory engender.
Simply reduced to its fundamental formula, natural right theory espouses the view that some laws
are basic and fundamental to human nature and are discoverable without reference to specific
legislative enactments or judicial decision which is opposed to positive law, a human creation
conditioned by history and subject to continuous modifications. Thus we have the common saying
that an unjust law is not true law.
It is premised that men are equal and are entitled to the same fundamental rights and privileges that
such equality brings.
This theses found support in the Thomasian proposition asserting that it is common to all, regardless
of color or race, belief, economic and social standing. Such a premise even allowed Grotius to
develop the foundations for what we now call generally accepted principles of international law.
Although the Thomasian thrust belonged to the second kind of natural law theory, it further identifies
the rational nature of man as that which defines moral law.
Thus the relationship between law and morality was established at this point. It should be further
noted that in the 17th century, Spinoza and von Leibniz even went to the extent of interpreting natural
law as the foundation of ethic and morality.
Although positivists would rightfully say that natural law overstates the relationship between law and
morality, some would counter that positivism underestimates the importance of the relationship.
Such a view, in my humble and limited opinion, is congruent with what we learned in constitutional
law that the constitution merely strengthens the rights that are already there.
A constitution, principally crafted to balance the awesome power of government vis--vis the hapless
individual, guarantees the rights that are already inherent in the individual. The constitution does not
confer those rights but merely guarantees the citizen that the government is bound to honor such
rights.

It also goes with the established view that the constitution is a creation of a sovereign people and
merely reflects the aspirations and the guidelines that would serves as beacon lights for the body
politic.
As such, the enumeration of the bill or rights under the constitution only serves to put into tangible
form what is already present in man and discloses that such rights are inherent, fundamental,
inalienable, imprescriptible, and universal.
Inherent in the sense that such rights inhere upon a person at birth and is not granted by any person
or authority. Fundamental refers to the meaning of human life. Inalienable means such rights cannot
be rightfully taken away from a free individual. Imprescriptible on the other hand holds that such
rights cannot be lost even by non-issue or non-assertion in any given period of time. Universality
states that every human being irrespective of origin, status, condition or place possesses the same
rights and are enforceable anywhere regardless of political or social differences.
Looking at the characteristics of human rights, it would be safe to say that it goes beyond the
constitution. In fact it can be rightfully said that it precedes constitutions. Analogous to the three
principal powers of the state of police power, eminent domain and taxation that precedes
constitutions human rights also precedes constitutions. Thus the Philippine constitution of today
has made many references to human rights such as according to source, to recipient, to aspect, and
to derogability.
As for the inquiry whether or not theistic commitment is a necessary presupposition of a natural
theory of human rights although it would be the safest option to give a positive reply to this query my humble answer in light of this modern-day and age is no.
Although the history of natural law is initially premised on the unmoved mover, uncaused cause
historical events would seem to suggest that man believed that it possessed inalienable rights by
virtue of its rightful place here on earth.
Thus, where once before man would premised his rights as that being a creation of a divine entity
imbued with an aspect of such divinity, today man is possessed of inherent fundamental rights
because of mans very nature. Here we can see the dichotomy made between the old thinking and
modern thinking.
No longer is the right of man premised solely because man is a creation of a divine entity but man is
man because that is his nature in the universe. And this began with the abandonment of the
application of the Divine Right Theory of Kings.
From the signing of the Great Charter by King John at Runnymede on June 1215 to the French and
American revolutions these events debunked the Divine Right Theory of Kings and made man
deviate from a theistic-based dogma to a more secular formula.

It established in modern thinking that human rights are birthrights and, therefore, man is entitled to it
since creation, their recognition and enjoyment are only curtailed by despotic rules.
This gradual recognition of human rights arose from the struggle of man against injustices of
despotic rulers and created a shift from a theistic model to a more acceptable secular model. When
modern thinking rejected the Divine Right Theory of Kings, it precipitated a shift.
From the old view that hinges its authority from a divine entity, it now focused on the state of being of
man.
Finally, in my humble and limited opinion, the concept of God or a divine entity was reduced or
relegated to the convenient concept of morality. This can be gleaned from our very own civil code
which till now contains a small number of provisions on moral rights.