Natural Law

Natural Law What is Law?

Natural Law is a broad and often misapplied term tossed around various schools of philosophy,
science, history, theology, and law. Indeed, Immanuel Kant reminded us, 'What is law?' may be said
to be about as embarrassing to the jurist as the well-know question What is Truth? is to the logician.

Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling
authority, and having binding legal force. That which must be obeyed and followed by
citizens subject to sanctions or legal consequences is a law (Blacks Law Dictionary, Sixth
Edition, p. 884).

Jurisprudence is the philosophy of law and how the law developed.

Natural Law A Moral Theory of Jurisprudence

Natural Law is a moral theory of jurisprudence, which maintains that law should be based on
morality and ethics. Natural Law holds that the law is based on whats correct. Natural Law is
discovered by humans through the use of reason and choosing between good and evil. Therefore,
Natural Law finds its power in discovering certain universal standards in morality and ethics.
Natural Law The History
The Greeks -- Socrates, Plato, and Aristotle emphasized the distinction between "nature" (physis,
) and "law," "custom," or "convention" (nomos, ). What the law commanded varied from
place to place, but what was "by nature" should be the same everywhere. Aristotle (BC 384322) is
considered by many to be the father of natural law. In Rhetoric, he argues that aside from
particular laws that each people has set up for itself, there is a common law or higher law that is
according to nature (Rhetoric 1373b28).
The Stoics -- The development of natural law theory continued in the Hellenistic school of
philosophy, particularly with the Stoics. The Stoics pointed to the existence of a rational and
purposeful order to the universe. The means by which a rational being lived in accordance with this
cosmic order was considered natural law. Unlike Aristotles higher law, Stoic natural law was
indifferent to the divine or natural source of that law. Stoic philosophy was very influential with
Roman jurists such as Cicero, thus playing a significant role in the development of Roman legal
theory.
The Christians -- Augustine (AD 354430) equates natural law with man's Pre-Fall state.
Therefore, life according to nature is no longer possible and mankind must instead seek salvation
through the divine law and Christs grace. Gratian (12th century) reconnected the concept of natural
law and divine law. The Human Race is ruled by two things: namely, natural law and usages (mos,
moris, mores). Natural law is what is contained in the law and the Gospel. By it, each person is
commanded to do to others what he wants done to himself and is prohibited from inflicting on others
what he does not want done to himself. (Decretum, D.1 d.a.c.1; ca. 1140 AD)
Natural Law The Conclusion
In the end, where does law come from? The Theory of Natural Law maintains that certain moral laws
transcend time, culture, and government. There are universal standards that apply to all mankind
throughout all time. These universal moral standards are inherent in and discoverable by all of us,
and form the basis of a just society.

Natural Law
The term "natural law" is ambiguous. It refers to a type of moral theory, as well as to a
type of legal theory, but the core claims of the two kinds of theory are logically
independent. It does not refer to the laws of nature, the laws that science aims to
describe. According to natural law moral theory, the moral standards that govern
human behavior are, in some sense, objectively derived from the nature of human
beings and the nature of the world. While being logically independent of natural law
legal theory, the two theories intersect. However, the majority of the article will focus on
natural law legal theory.
According to natural law legal theory, the authority of legal standards necessarily
derives, at least in part, from considerations having to do with the moral merit of those
standards. There are a number of different kinds of natural law legal theories, differing
from each other with respect to the role that morality plays in determining the authority
of legal norms. The conceptual jurisprudence of John Austin provides a set of necessary
and sufficient conditions for the existence of law that distinguishes law from non-law in
every possible world. Classical natural law theory such as the theory of Thomas
Aquinas focuses on the overlap between natural law moral and legal theories.
Similarly, the neo-naturalism of John Finnis is a development of classical natural law
theory. In contrast, the procedural naturalism of Lon L. Fuller is a rejection of the
conceptual naturalist idea that there are necessary substantive moral constraints on
the content of law. Lastly, Ronald Dworkins theory is a response and critique of legal
positivism. All of these theories subscribe to one or more basic tenets of natural law
legal theory and are important to its development and influence.

1. Two Kinds of Natural Law Theory

At the outset, it is important to distinguish two kinds of theory that go by the name of
natural law. The first is a theory of morality that is roughly characterized by the
following theses. First, moral propositions have what is sometimes called objective
standing in the sense that such propositions are the bearers of objective truth-value;
that is, moral propositions can be objectively true or false. Though moral objectivism is
sometimes equated with moral realism (see, e.g., Moore 1992, 190: "the truth of any
moral proposition lies in its correspondence with a mind- and convention-independent
moral reality"), the relationship between the two theories is controversial. Geoffrey
Sayre-McCord (1988), for example, views moral objectivism as one species of moral
realism, but not the only form; on Sayre-McCord's view, moral subjectivism and moral
intersubjectivism are also forms of moral realism. Strictly speaking, then, natural law
moral theory is committed only to the objectivity of moral norms.

The second thesis constituting the core of natural law moral theory is the claim that
standards of morality are in some sense derived from, or entailed by, the nature of the
world and the nature of human beings. St. Thomas Aquinas, for example, identifies the
rational nature of human beings as that which defines moral law: "the rule and measure
of human acts is the reason, which is the first principle of human acts" (Aquinas, ST I-II,
Q.90, A.I). On this common view, since human beings are by nature rational beings, it is
morally appropriate that they should behave in a way that conforms to their rational
nature. Thus, Aquinas derives the moral law from the nature of human beings (thus,
"natural law").
But there is another kind of natural law theory having to do with the relationship of
morality to law. According to natural law theory of law, there is no clean division
between the notion of law and the notion of morality. Though there are different
versions of natural law theory, all subscribe to the thesis that there are at least some
laws that depend for their "authority" not on some pre-existing human convention, but
on the logical relationship in which they stand to moral standards. Otherwise put, some
norms are authoritative in virtue of their moral content, even when there is no
convention that makes moral merit a criterion of legal validity. The idea that the
concepts of law and morality intersect in some way is called the Overlap Thesis.
As an empirical matter, many natural law moral theorists are also natural law legal
theorists, but the two theories, strictly speaking, are logically independent. One can
deny natural law theory of law but hold a natural law theory of morality. John Austin,
the most influential of the early legal positivists, for example, denied the Overlap Thesis
but held something that resembles a natural law ethical theory.
Indeed, Austin explicitly endorsed the view that it is not necessarily true that the legal
validity of a norm depends on whether its content conforms to morality. But while
Austin thus denied the Overlap Thesis, he accepted an objectivist moral theory; indeed,
Austin inherited his utilitarianism almost wholesale from J.S. Mill and Jeremy
Bentham. Here it is worth noting that utilitarians sometimes seem to suggest that they
derive their utilitarianism from certain facts about human nature; as Bentham once
wrote, "nature has placed mankind under the governance of two sovereign masters, pain
and pleasure. It is for them alone to point out what we ought to do, as well as to
determine what we shall do. On the one hand the standard of right and wrong, on the
other the chain of causes and effects, are fastened to their throne" (Bentham 1948, 1).
Thus, a commitment to natural law theory of morality is consistent with the denial of
natural law theory of law.
Conversely, one could, though this would be unusual, accept a natural law theory of law
without holding a natural law theory of morality. One could, for example, hold that the

conceptual point of law is, in part, to reproduce the demands of morality, but also hold a
form of ethical subjectivism (or relativism). On this peculiar view, the conceptual point
of law would be to enforce those standards that are morally valid in virtue of cultural
consensus. For this reason, natural law theory of law is logically independent of natural
law theory of morality. The remainder of this essay will be exclusively concerned with
natural law theories of law.

2. Conceptual Naturalism

a. The Project of Conceptual Jurisprudence

The principal objective of conceptual (or analytic) jurisprudence has traditionally been
to provide an account of what distinguishes law as a system of norms from other
systems of norms, such as ethical norms. As John Austin describes the project,
conceptual jurisprudence seeks "the essence or nature which is common to all laws that
are properly so called" (Austin 1995, 11). Accordingly, the task of conceptual
jurisprudence is to provide a set of necessary and sufficient conditions for the existence
of law that distinguishes law from non-law in every possible world.
While this task is usually interpreted as an attempt to analyze the concepts of law and
legal system, there is some confusion as to both the value and character of conceptual
analysis in philosophy of law. As Brian Leiter (1998) points out, philosophy of law is one
of the few philosophical disciplines that takes conceptual analysis as its principal
concern; most other areas in philosophy have taken a naturalistic turn, incorporating
the tools and methods of the sciences. To clarify the role of conceptual analysis in law,
Brian Bix (1995) distinguishes a number of different purposes that can be served by
conceptual claims: (1) to track linguistic usage; (2) to stipulate meanings; (3) to explain
what is important or essential about a class of objects; and (4) to establish an evaluative
test for the concept-word. Bix takes conceptual analysis in law to be primarily concerned
with (3) and (4).
In any event, conceptual analysis of law remains an important, if controversial, project
in contemporary legal theory. Conceptual theories of law have traditionally been
characterized in terms of their posture towards the Overlap Thesis. Thus, conceptual
theories of law have traditionally been divided into two main categories: those like
natural law legal theory that affirm there is a conceptual relation between law and
morality and those like legal positivism that deny such a relation.

b. Classical Natural Law Theory

All forms of natural law theory subscribe to the Overlap Thesis, which asserts that there
is some kind of non-conventional relation between law and morality. According to this

view, then, the notion of law cannot be fully articulated without some reference to moral
notions. Though the Overlap Thesis may seem unambiguous, there are a number of
different ways in which it can be interpreted.
The strongest construction of the Overlap Thesis forms the foundation for the classical
naturalism of Aquinas and Blackstone. Aquinas distinguishes four kinds of law: (1)
eternal law; (2) natural law; (3) human law; and (4) divine law. Eternal law is comprised
of those laws that govern the nature of an eternal universe; as Susan Dimock (1999, 22)
puts it, one can "think of eternal law as comprising all those scientific (physical,
chemical, biological, psychological, etc.) 'laws' by which the universe is ordered." Divine
law is concerned with those standards that must be satisfied by a human being to
achieve eternal salvation. One cannot discover divine law by natural reason alone; the
precepts of divine law are disclosed only through divine revelation.
The natural law is comprised of those precepts of the eternal law that govern the
behavior of beings possessing reason and free will. The first precept of the natural law,
according to Aquinas, is the somewhat vacuous imperative to do good and avoid evil.
Here it is worth noting that Aquinas holds a natural law theory of morality: what is good
and evil, according to Aquinas, is derived from the rational nature of human beings.
Good and evil are thus both objective and universal.
But Aquinas is also a natural law legal theorist. On his view, a human law (that is, that
which is promulgated by human beings) is valid only insofar as its content conforms to
the content of the natural law; as Aquinas puts the point: "[E]very human law has just so
much of the nature of law as is derived from the law of nature. But if in any point it
deflects from the law of nature, it is no longer a law but a perversion of law" (ST I-II,
Q.95, A.II). To paraphrase Augustine's famous remark, an unjust law is really no law at
all.
The idea that a norm that does not conform to the natural law cannot be legally valid is
the defining thesis of conceptual naturalism. As William Blackstone describes the thesis,
"This law of nature, being co-eval with mankind and dictated by God himself, is of
course superior in obligation to any other. It is binding over all the globe, in all
countries, and at all times: no human laws are of any validity, if contrary to this; and
such of them as are valid derive all their force, and all their authority, mediately or
immediately, from this original" (1979, 41). In this passage, Blackstone articulates the
two claims that constitute the theoretical core of conceptual naturalism: 1) there can be
no legally valid standards that conflict with the natural law; and 2) all valid laws derive
what force and authority they have from the natural law.
It should be noted that classical naturalism is consistent with allowing a substantial role
to human beings in the manufacture of law. While the classical naturalist seems

committed to the claim that the law necessarily incorporates all moral principles, this
claim does not imply that the law is exhausted by the set of moral principles. There will
still be coordination problems (e.g., which side of the road to drive on) that can be
resolved in any number of ways consistent with the set of moral principles. Thus, the
classical naturalist does not deny that human beings have considerable discretion in
creating natural law. Rather she claims only that such discretion is necessarily limited
by moral norms: legal norms that are promulgated by human beings are valid only if
they are consistent with morality.
Critics of conceptual naturalism have raised a number of objections to this view. First, it
has often been pointed out that, contra Augustine, unjust laws are all-too- frequently
enforced against persons. As Austin petulantly put the point:
Now, to say that human laws which conflict with the Divine law are not
binding, that is to say, are not laws, is to talk stark nonsense. The most
pernicious laws, and therefore those which are most opposed to the will of
God, have been and are continually enforced as laws by judicial tribunals.
Suppose an act innocuous, or positively beneficial, be prohibited by the
sovereign under the penalty of death; if I commit this act, I shall be tried and
condemned, and if I object to the sentence, that it is contrary to the law of
God, who has commanded that human lawgivers shall not prohibit acts which
have no evil consequences, the Court of Justice will demonstrate the
inconclusiveness of my reasoning by hanging me up, in pursuance of the law
of which I have impugned the validity (Austin 1995, 158).
Of course, as Brian Bix (1999) points out, the argument does little work for Austin
because it is always possible for a court to enforce a law against a person that does not
satisfy Austin's own theory of legal validity.
Another frequently expressed worry is that conceptual naturalism undermines the
possibility of moral criticism of the law; inasmuch as conformity with natural law is a
necessary condition for legal validity, all valid law is, by definition, morally just. Thus,
on this line of reasoning, the legal validity of a norm necessarily entails its moral justice.
As Jules Coleman and Jeffrey Murphy (1990, 18) put the point:
The important things [conceptual naturalism] supposedly allows us to do
(e.g., morally evaluate the law and determine our moral obligations with
respect to the law) are actually rendered more difficult by its collapse of the
distinction between morality and law. If we really want to think about the law
from the moral point of view, it may obscure the task if we see law and

morality as essentially linked in some way. Moral criticism and reform of law
may be aided by an initial moral skepticism about the law.
There are a couple of problems with this line of objection. First, conceptual naturalism
does not foreclose criticism of those norms that are being enforced by a society as law.
Insofar as it can plausibly be claimed that the content of a norm being enforced by
society as law does not conform to the natural law, this is a legitimate ground of moral
criticism: given that the norm being enforced by law is unjust, it follows, according to
conceptual naturalism, that it is not legally valid. Thus, the state commits wrong by
enforcing that norm against private citizens.
Second, and more importantly, this line of objection seeks to criticize a conceptual
theory of law by pointing to its practical implications a strategy that seems to commit
a category mistake. Conceptual jurisprudence assumes the existence of a core of social
practices (constituting law) that requires a conceptual explanation. The project
motivating conceptual jurisprudence, then, is to articulate the concept of law in a way
that accounts for these pre-existing social practices. A conceptual theory of law can
legitimately be criticized for its failure to adequately account for the pre-existing data, as
it were; but it cannot legitimately be criticized for either its normative quality or its
practical implications.
A more interesting line of argument has recently been taken up by Brian Bix (1996).
Following John Finnis (1980), Bix rejects the interpretation of Aquinas and Blackstone
as conceptual naturalists, arguing instead that the claim that an unjust law is not a law
should not be taken literally:
A more reasonable interpretation of statements like "an unjust law is no law
at all" is that unjust laws are not laws "in the fullest sense." As we might say
of some professional, who had the necessary degrees and credentials, but
seemed nonetheless to lack the necessary ability or judgment: "she's no
lawyer" or "he's no doctor." This only indicates that we do not think that the
title in this case carries with it all the implications it usually does. Similarly,
to say that an unjust law is "not really law" may only be to point out that it
does not carry the same moral force or offer the same reasons for action as
laws consistent with "higher law" (Bix 1996, 226).
Thus, Bix construes Aquinas and Blackstone as having views more similar to the neonaturalism of John Finnis discussed below in Section III. Nevertheless, while a plausible
case can be made in favor of Bix's view, the long history of construing Aquinas and
Blackstone as conceptual naturalists, along with its pedagogical value in developing

other theories of law, ensures that this practice is likely, for better or worse, to continue
indefinitely.

3. The Substantive Neo-Naturalism of John Finnis

John Finnis takes himself to be explicating and developing the views of Aquinas and
Blackstone. Like Bix, Finnis believes that the naturalism of Aquinas and Blackstone
should not be construed as a conceptual account of the existence conditions for law.
According to Finnis, the classical naturalists were not concerned with giving a
conceptual account of legal validity; rather they were concerned with explaining the
moral force of law: "the principles of natural law explain the obligatory force (in the
fullest sense of 'obligation') of positive laws, even when those laws cannot be deduced
from those principles" (Finnis 1980, 23-24). On Finnis's view of the Overlap Thesis, the
essential function of law is to provide a justification for state coercion (a view he shares
with Ronald Dworkin). Accordingly, an unjust law can be legally valid, but it cannot
provide an adequate justification for use of the state coercive power and is hence not
obligatory in the fullest sense; thus, an unjust law fails to realize the moral ideals
implicit in the concept of law. An unjust law, on this view, is legally binding, but is not
fully law.
Like classical naturalism, Finnis's naturalism is both an ethical theory and a theory of
law. Finnis distinguishes a number of equally valuable basic goods: life, health,
knowledge, play, friendship, religion, and aesthetic experience. Each of these goods,
according to Finnis, has intrinsic value in the sense that it should, given human nature,
be valued for its own sake and not merely for the sake of some other good it can assist in
bringing about. Moreover, each of these goods is universal in the sense that it governs all
human cultures at all times. The point of moral principles, on this view, is to give ethical
structure to the pursuit of these basic goods; moral principles enable us to select among
competing goods and to define what a human being can permissibly do in pursuit of a
basic good.
On Finnis's view, the conceptual point of law is to facilitate the common good by
providing authoritative rules that solve coordination problems that arise in connection
with the common pursuit of these basic goods. Thus, Finnis sums up his theory of law as
follows:
[T]he term 'law' ... refer[s] primarily to rules made, in accordance with
regulative legal rules, by a determinate and effective authority (itself
identified and, standardly, constituted as an institution by legal rules) for a
'complete' community, and buttressed by sanctions in accordance with the
rule-guided stipulations of adjudicative institutions, this ensemble of rules

and institutions being directed to reasonably resolving any of the

community's co-ordination problems (and to ratifying, tolerating, regulating,
or overriding co-ordination solutions from any other institutions or sources of
norms) for the common good of that community (Finnis 1980, 276).
Again, it bears emphasizing that Finnis takes care to deny that there is any necessary
moral test for legal validity: "one would simply be misunderstanding my conception of
the nature and purpose of explanatory definitions of theoretical concepts if one
supposed that my definition 'ruled out as non-laws' laws which failed to meet, or meet
fully, one or other of the elements of the definition" (Finnis 1980, 278).
Nevertheless, Finnis believes that to the extent that a norm fails to satisfy these
conditions, it likewise fails to fully manifest the nature of law and thereby fails to fully
obligate the citizen-subject of the law. Unjust laws may obligate in a technical legal
sense, on Finnis's view, but they may fail to provide moral reasons for action of the sort
that it is the point of legal authority to provide. Thus, Finnis argues that "a ruler's use of
authority is radically defective if he exploits his opportunities by making stipulations
intended by him not for the common good but for his own or his friends' or party's or
faction's advantage, or out of malice against some person or group" (Finnis 1980, 352).
For the ultimate basis of a ruler's moral authority, on this view, "is the fact that he has
the opportunity, and thus the responsibility, of furthering the common good by
stipulating solutions to a community's co- ordination problems" (Finnis 1980, 351).
Finnis's theory is certainly more plausible as a theory of law than the traditional
interpretation of classical naturalism, but such plausibility comes, for better or worse, at
the expense of naturalism's identity as a distinct theory of law. Indeed, it appears that
Finnis's natural law theory is compatible with naturalism's historical adversary, legal
positivism, inasmuch as Finnis's view is compatible with a source-based theory of legal
validity; laws that are technically valid in virtue of source but unjust do not, according to
Finnis, fully obligate the citizen. Indeed, Finnis (1996) believes that Aquinas's classical
naturalism fully affirms the notion that human laws are "posited."

St. Thomas Aquinas on the Natural Law.

Aquinas bases his doctine on the natural law, as one would expect, on his
understanding of God and His relation to His creation. He grounds his theory of
natural law in the notion of an eternal law (in God). In asking whether there is an
eternal law, he begins by stating a general definition of all law: Law is a dictate of

reason from the ruler for the community he rules. This dictate of reason is first and
foremost within the reason or intellect of the ruler. It is the idea of what should be
done to insure the well ordered functioning of whatever community the ruler has care
for. (It is a fundamental tenet of Aquinas' political theory that rulers rule for the sake
of the governed, i.e. for the good and well-being of those subject to the ruler.) Since
he has elsewhere shown that God rules the world with his reason (since he is the cause
of its being (cf. ST Ia 22, 1-2), Aquinas concludes that God has in His intellect an idea
by which He governs the world. This Idea, in God, for the governance of things is the
eternal law. (Summa TheologiaeI-IIae, 91, 1)
Next, Aquinas asks whether there is in us a natural law. First, he makes a distinction:
A law is not only in the reason of a ruler, but may also be in the thing that is ruled. In
the case of the Eternal Law, the things of creation that are ruled by that Law have it
imprinted on the them through their nature or essence. Since things act according to
their nature, they derive their proper acts and ends (final cause) according to the law
that is written into their nature. Everything in nature, insofar as they reflects the order
by which God directs them through their nature for their own benefit, reflects the
Eternal Law in their own natures. (S.T. I-IIae, 91, 2)
The Natural Law, as applied to the case of human beings, requires greater precision
because of the fact that we have reason and free will. It is the our nature humans to act
freely (i.e. to be provident for ourselves and others) by being inclined toward our
proper acts and end. That is, we human beings must exercise our natural reason to
discover what is best for us in order to acheive the end to which their nature inclines.
Furhtermore, we must exercise our freedom, by choosing what reason determines to
naturally suited to us, i.e. what is best for our nature. The natural inclination of
humans to acheive their proper end through reason and free will is the natural law.
Formally defined, the Natural Law is humans' participation in the Eternal Law,
through reason and will. Humans actively participate in the eternal law of God (the
governance of the world) by using reason in conformity with the Natural Law to
discern what is good and evil.
In applying this universal notion of Natural Law to the human person, one first must
decide what it is that God has ordained human nature to be inclined toward. Since
each thing has a nature given it by God, and each thing has a natural end, so there is a
fulfillment to human activity of living. When a person discovers by reason what the
purpose of living is, he or she discover his or her natural end is. Accepting the

medieval dictum "happiness is what all desire" a person is happy when he or she
achieves this natural end.
Aquinas distinguishes different levels of precepts or commands that the Natural Law
entails. The most universal is the command "Good is to be done and pursued and evil
avoided." This applies to everything and everyone, so much so that some consider it to
be more of a description or definition of what we mean by "good." For these
philosophers, a thing is "good" just in case it is pursued or done by someone. Aquinas
would agree with this to a certain extent; but he would say that that is a definition of
an apparent good. Thus, this position of Aquinas has a certain phenomenological
appeal: a person does anything and everything he or she does only because that thing
at least "appears" to be good. Even when I choose something that I know is bad for
myself, I nevertheless chooses it under some aspect of good, i.e. as some kind of
good. I know the cake is fattening, for example, and I don't choose to eat
it as fattening. I do, however, choose to eat it as tasty (which is an apparent, though
not a true, good).
On the level that we share with all substances, the Natural Law commands that we
preserve ourselves in being. Therefore, one of the most basic precepts of the Natural
Law is to not commit suicide. (Nevertheless, suicide can, sadly, be chosen as an
apparent good, e.g. as the sessation of pain.) On the level we share with all living
things, the Natural Law commands that we take care of our life, and transmit that life
to the next generation. Thus, almost as basic as the preservation of our lives, the
Natural Law commands us to rear and care for offspring. On the level that is most
specific to humans, the fulfillment of the Natural Law consists in the exercize those
activities that are unique of humans, i.e. knowledge and love, and in a state that is also
natural to human persons, i.e. society. The Natural Law, thus, commands us to develop
our rational and moral capacities by growing in the virtues of intellect (prudence, art,
and science) and will (justice, courage, temperance). Natural law also commands
those things that make for the harmonious functioning of society ("Thou shalt not
kill," "Thou shalt not steal.") Human nature also shows that each of us have a destiny
beyond this world, too. Man's infinite capacity to know and love shows that he is
destined to know and love an infinite being, God.
All of these levels of precepts so far outlined are only the most basic. "The good is to
be done and pursued and evil is to be avoided" is not very helpful for making actual
choices. Therefore, Aquinas believes that one needs one's reason to be perfected by

the virtues, especially prudence, in order to discover precepts of the Natural Law that
are more proximate to the choices that one has to make on a day to day basis.
The Thomistic notion of Natural Law has its roots, then, in a quite basic
understanding of the universe as caused and cared for by God, and the basic notion of
what a law is. It is a fairly sophisticated notion by which to ground the legitimacy of
human law in something more universal than the mere agreement and decree of
legislators. Yet, it allows that what the Natural Law commands or allows is not
perfectly obvious when one gets to the proximate level of commanding or forbidding
specific acts. It grounds the notion that there are some things that are wrong, always
and everywhere, i.e. "crimes against humanity," while avoiding the obvious dificulties
of claiming that this is determined by any sort of human concensus. Nevertheless, it
still sees the interplay of people in social and rational discourse as necessary to
determine what in particular the Natural Law requires.

John Finnis
John Finnis is an Australian legal scholar who grew up in Adelaide before getting a
Rhodes scholarship to Oxford. He is currently professor of law at Oxford. Finnis
published Natural Law and Natural Rights in 1980, and the book is considered a
seminal restatement of the natural law doctrine. Finnis is a practising catholic, and a fair
proportion of his work (in NLNR and subsequent articles) deals with the relationship
between natural law and Christian/Catholic values.

The Seven Basic Goods

The central object of Finniss theory is a set of seven fundamental goods for
humankind. These goods are:

Life
Knowledge (for its own sake)
Friendship and Sociability
Play (for its own sake)
Aesthetic Experience
Practical Reasonableness, i.e. the ability to reason correctly about what is best for
yourself, and to act on those decisions.
Religion i.e. a connection with, and participation with, the orders that transcend
individual humanity

The basic goods serve as an explanation of why we do things. Any worthwhile activity is
worth doing because it participates in one or more basic goods.
Other positive qualities, like freedom or humility, are merely methods by which we can
achieve one or more of the basic goods. Other motivations for action, such as the pursuit
of pleasure or material gain, are misguided and motivated by human inclination rather
than practical reason.
The Reality of the Basic Goods
The statement these are the seven basic goods is just as true as the statement there are
infinitely many primes. The basic goods exist independent of human thought, and so we
can put them in reality in the same sense that maths lives in reality. The basic goods, of
course, do not have physical form.

Where do these goods come from?

We can distinguish between theoretical reason, which describes what is true,
with practical reason, which describes how to act. Theoretical reason has many
principles that cannot be proved, such as:

the validity of deductive inferences

the principle of induction
the assumption that experience corresponds to reality
the preference for a simple explanation over a complex one

Principles like these cannot be derived from the principles of logic, and can be
meaningfully denied. But if you deny a principle like this, you will find it impossible to

pursue knowledge and you wont be able to get anywhere at all. Moreover, you can
just see that these principles are true by looking around.
The basic goods are the same. They cannot be derived from Gods law, or logic, or the
inclinations of a human brain. But if you deny them, you cannot get anywhere in the
realm of practical reason, and you cannot make decisions about what is best for your
life. And, just with theoretical principles, its obvious that these goods are basic. In this
way, the seven basic goods are self-evident.
It is important to make a distinction here. It is not true that everyone is automatically
aware of all the principles of theoretical rationality a toddler may not understand
a modus ponens argument. But such principles are known to every educated, mature
person. In the same way, Finnis acknowledges that there are people who do not respect
the basic goods; its just that those people are wrong.
The Nine Requirements of Practical Reason
One of the seven basic goods is practical reason. You participate in this good by making
rational decision that maximise your participation in the other goods by choosing
good projects to pursue, by making moral decisions, and so on. In order to correctly
participating in practical reason, you need to fulfil nine sub-requirements. These
requirements are self-evident in the same way that the basic goods are self-evident. The
nine principles are:
1.
2.
3.
4.
5.
6.
7.
8.
9.

You should view your life as a whole, and not live moment to moment
You naturally have to prioritise certain goods over others (e.g. an academic would
prioritise knowledge higher than a tradie), but you should always do so with good reason.
You should never arbitrarily discount one of the basic goods.
Basic goods apply equally to all people. You can be self-interested to the extent that you
are in the best position to look after yourself, but you should always take into account the
good of others.
You should make sure that you do not become obsessed with a particular project, and
keep the perspective that the project is a participation of a basic good.
You should actually do projects and make an effort to improve dont just sit around or
repeat old habits
You should calculate and plan your actions so that they are the most efficient (in a
utilitarian sense) and do the most good.
You should never commit an act that directly harms a basic good, even if it will indirectly
benefit a different basic good. For example, you should not kill even if it will indirectly save
more lives later.
You should foster the common good of the community.
You should act according to your conscience and practical reason, not the authority of
someone else.

Making Decisions using the Seven Goods and the Nine Requirements

The seven goods and the nine requirements apply equally to everyone. To make specific
decisions in your life, you think reasonably, in accordance with the nine requirements,
and decide how you will participate in the basic goods.
There is plenty of scope for discretion in this scheme. If you are deciding what to do with
your day, you could choose to listen to music, or to go hiking, or to go to a party, or to
volunteer for disaster relief. These are all, in principle, valid choices. Some
choices are wrong, e.g. murdering someone, or spending all day in an empty room doing
nothing, but there are many equally correct choices.
The seven goods are all equally fundamental, and do not exist in a hierarchy. Therefore,
although some acts are wrong (because they do not participate in a basic good), there is
no single correct act. This is an important distinction between theoretical and practical
reason: in theoretical reason, if two statements contradict then at least one of them must
be false. In practical reason, there can be two contradictory acts that are both morally
correct choices. It is up to a humans free will to choose which act they will adopt.
In this way, the seven goods and the nine requirements specify the overarching
structure and goals, but do not determine the minutiae of day-to-day life, or even big
decisions like the choice of career.

The Common Good and the Need for Authority

Humans naturally need to live in groups. This is both required expressly by the basic
good of Sociability, and implicitly by all the other goods, because we are most productive
when we are working together. Hence, one of the nine requirements of practical reason
is Contribute to the common good.
The common good is the situation where each member of the community can effectively
pursue the basic goods for themselves. Like one of the basic goods, the common good is
never achieved, it is only participated in.
Authority
To best achieve the common good, certain acts need to be performed by
the whole community rather than specific people. Examples are respect for the rules of
games, collaboration within knowledge, spirituality within the community, or respect
for each others lives and safety. Such co
Such community-wide actions require coordination, and coordination requires authority
(not necessarily coercive authority). Such coordinating authorities include churches,
team captains, university heads of department, and governments.

One of the basic goods is practical reasonableness. It is necessary that every member of
a society be able to make decisions for themselves. Authority figures therefore need to
compromise between coordinating society effectively, and granting people the ability to
pursue their own ends in the manner they choose.

Natural Law
One of the strongest and most effective sources of authority is the law, and therefore,
Finnis concludes, law is a morally necessary component of society.
How is the specific content of law morally determined?
Some laws directly serve basic goods (e.g. the law against murder). Most laws however,
are not so direct instead they create a stable society in which people have the freedom
and ability to pursue the basic goods. Before, I said that each person is free to choose the
specific details of how they achieve the basic goods in the same way, the authors of the
law are free to choose the specifics of the legal system. As long as the legal system is in
service to the basic goods and in accordance with practical reason, it is a morally good
legal system. Of course, some legal systems will be better than others. A society deciding
between legal systems is equivalent to an individual deciding between conflicting moral
decisions.
What features should a legal system have?
The law should bring specificity, clarity and predictability into human interactions, and
so it should obey public and precise rules. These rules should also regulate the creation
of new rules. Finnis agrees with Lon Fullers eight requirements of the inner morality of
law, that laws should be:
1.
2.
3.
4.
5.
6.
7.
8.

Prospective, not retroactive

Possible to comply with
Promulgated
Clear
Coherent
Stable enough that people can use the law as a guide
The making of new laws should be guided effectively within the legal system
People who have authority should be
A.
Accountable
B.
Consistent and acting in good faith

(These eight requirements are posed by Finnis, but agree closely with Fullers
requirements)
The Moral Force of Law

If you accept a legal system, then you have a legal obligation to obey every law However,
a legal system, when implemented correctly, is a very important source of guidance for
people, and people have a moral obligation to obey the law. The argument runs like this:

I ought to pursue the basic goods

Society needs to coordinate in order to best achieve the basic goods
The law is an effective way of coordinating society this way
Therefore:
I ought to obey the law.

Therefore you have both a legal obligation and a moral obligation to respect and obey
the law. The legal obligation is invariant in force the law just has offences and
sanctions; no offence or sanction is legally worse than any other. The moral obligation
has different weight depending on the specific offense, because some offences damage
the legal system more than others. If a legal obligation is in line with a moral obligation
(e.g. Do not murder) then you also have the non-legal obligation to not perform that
act for moral reasons.
In this way, the law is not just a coercive order. Certainly, in an imperfect society, the
law needs to be coercive in order to regulate people who behave badly. These bad people
follow the law in order to avoid sanctions. But many people follow the law because they
believe that following the law is morally correct. In a perfect society, there would be law
without sanctions that functioned only to coordinate people.
What about when the law conflicts with morals?
A classic interpretation of natural law is the doctrine of lex injusta non est lex: that
morally wrong laws are not laws at all. Finnis first asserts that this is not the primary
concern of a theory of natural law the primary concern is discerning a system of
common good, and determing whether/how a legal system can best achieve that. The
issue of immoral laws is nonetheless worth discussing, and Finnis does indeed discuss
it.
I have already talked about how laws have both moral and legal obligation. Finnis
explanation of lex injusta non est lex is quite simple: a morally unjust law imposes legal
obligation, but no moral obligation. Specifically, if we look at the argument from before:

I ought to pursue the basic goods

Society needs to coordinate in order to best achieve the basic goods
The law is an effective way of coordinating society this way,
Therefore
I ought to obey the law.

If a law is immoral/unjust, we can reject premise number 3, and so there is no moral

obligation to obey the law. We still have the legal obligation that we should obey the law
if we want to avoid the sanction. In this sense the law is still legally valid, but it is not
morally valid.
There is another consideration that can sometimes provide a moral obligation to obey
immoral laws. Imagine that an act X is morally wrong, but is required by law. Since the
law has moral force, it is morally important to ensure that the law is stable. Therefore
citizens have a moral obligation to perform X for the sake of not undermining the legal
system, and legal officials have a moral obligation enforce X for the same reason. This
moral obligation will not necessarily trump the moral obligation that X not be
performed, but it is possible that it will trump that obligation. In this way, it can
sometimes be morally correct to obey the law, even if the law itself is not morally valid.

The Diagram
So where does Finniss account of law fit into the diagram? We have already seen that
the basic goods and the requirements of practical reason exist in reality. However, the
specific laws of a society do not exist in reality they are not specified by the general
nature of the basic goods and requirements. However, the goods and requirements
grant laws moral validity, and this validity is objective. If we accept Kelsens premise
that laws are normative statements (Finnis doesnt go into this, but it clears things up),
then natural laws are a set of correct normative statements. This gives us:

Natural Right and the Law of Nations (GROTIUS)

The broadest principles of just war in De Jure Belli ac pacis derive from two sources:
the norms of natural justice and the customary law of nations (ius gentium). (Other
human and divine laws, importantly, also lay down binding principles for those who
have received them, but these sources do not have the universal character of the laws of
nature and nations.) On any given question regarding the resort to war or its conduct,
both systems of law must be consulted, as each system is capable of influencing the
rights and obligations of the other.

a. Obligations from Nature and Custom

The account of natural law in De Jure Belli, heavily influenced by the Stoic notions
of Cicero,begins from two universal human concerns: self-preservation and social
connection (see JBP I.II.I and Prol. 6-8). The rights of obligations of natural law are all
justified in terms of the rational balancing of these two primary concerns. This approach
is an outgrowth of Grotius earliest work on the laws of war, De Indis, where he argued
that the imperative of self-preservation justified two permissions of natural law: to
defend ones life and to acquire possessions (fol. 5-6). The need for human fellowship
justifies two basic obligations towards others: to refrain from inflicting injury and from
seizing their possessions (fol. 6-7). One apparent change that Grotius makes to his
earlier theory regards the basis for these obligations. In De Indis, he aligns himself with
a voluntarist account of obligation, found in medieval thinkers such as Ockham,
which maintains that natural law is binding upon humans in virtue of the divine will
that commands it (fol 5). The design of nature is one way in which we receive Gods

commands. By the time of De Jure Belli, Grotius seems to accept the alternative,
intellectualist position that natural law binds us by teaching what both humans and God
can recognize as necessary for human life: it shows us not what is obligatory because
commanded but what is obligatory or permissible in itself (JBP I.I.x). In fact, there is
much ambiguity in the later work as to which position Grotius accepts, showing itself
even in his very definition of natural law as a dictate of right reason, which points out
that an act has in it a quality of moral baseness of moral necessity; and that, in
consequence, such an act is either forbidden or enjoined by the author of nature, God
(JBP I.I.x). This definition is perhaps closest to the mediating position more recently
advanced by Surez, maintaining that intellect could recognize what is, in itself, good or
bad for humans but that only Gods command makes it obligatory to live accordingly
(De Legibus II.VI; see Schneewind 1998 pp. 61 and 74).
What is clear is that Grotius draws a basic distinction in law, following Aristotle,
between obligations derived from nature and those derived from an authoritative will
(JBP I.I.ix and xiii-xvi). Sources of this second, volitional type of law can be divine (as
revealed in scripture) or human, and the latter includes not only the laws of particular
states but also those laws that nations accept in their relations with each other. Kings
and peoples give their assent to the law of nations through custom, not typically by
positive agreement. Long observance of a norm in the relations between states gives it
the force of law. In contrast to natural law, which confers its basic rights and obligations
to all persons whether in a private or public capacity, the law of nations applies to
relations between sovereign entities (cf. JBP Prol. 40; De Indis fol. 12ff). It deals,
accordingly, largely with matters of state, such as embassies, treaties, and the special
privileges of sovereigns in waging war. This system of customary law, in turns out,
makes the legal position of sovereigns radically different from that of private actors in
the universal society established by natural law.

b. Just War: Jus ad Bellum

The mutual influence of the laws of nature and nations can be seen in both the resort to
war (traditionally called the jus ad bellum) and in its conduct (jus in bello). The only just
grounds for resorting to war are those that involve the pursuit of a right. Among such
pursuits, Grotius identifies three kinds: self-defense, the recovery of property and
punishment. Each of these has its basis in natural law, though the particular rights at
issue might arise from other sources, such as the law of nations. The right of self-defense
arises from the natural permission every person has to protect against injury (II.I.iii). If
our primary concern is self-preservation, we could not take the risk of living among
other people without reserving the permission to protect ourselves from them. The right
of defense extends not only to ones life, but also to ones body and property. Grotius
argues that killing in defense of ones body is justifiable even if the assailants objective

is not to kill but to maim or rape (II.I.vi-vii). The reason is that one can never trust that
a physical assault will not result in death (though it is unclear in Grotius treatment of
rape whether it is the victims life or interests of men in her chastity that is the
justifying concern). There are two constraints on justified self-defense: that the attack is
imminent and certain (II.I.v). Defense is a just cause that applies only to immediate
danger. Even property, however, may be defended with lethal force, with the further
constraint that such force is necessary for retaining it (II.I.xvi).
Apart from defense, war may be waged in order to recover ones rights or to punish the
offender. Acting under these just causes will often entail being the one to initiate
violence. Grotius argues that this breach of peace is not anti-social (and hence in
violation of natural justice) because the initiator is only demanding what the other party
already owes (I.II.i.5-6) they are not violating but upholding the system of rights.
Recovery of property applies not only to moveable things and territory, but also to rights
over persons (such as rightful subjects or slaves), rights to actions (such as the
fulfillment of contracts), and compensation for damages. All of these might be claimed
by natural right, though the particular claims might be shaped by prevailing domestic
systems of property or by the law of nations. This single heading yields an expansive
range of cases in which war is a just option for enforcing rights. Punishment multiplies
such cases. When someone willfully violates a right, they become obligated not only to
make restitution but to endure punishment equivalent to their crime. Any lawrespecting person (as explained above) may execute this punishment, in principle,
though a number of factors will tend to limit international punishment. Due to the high
risk of harming the innocent in pursuit of the guilty, punitive wars are permissible only
for serious crimes (II.XX.xxxviii). In most circumstances, only sovereign governments
will be permitted to execute the punishment since individual citizens would have
transferred this natural right to their state (see II.XX.xxiv and II.XX.xl; cf. De Indis, fol.
40-40). Public authorities, therefore, can lay claim to special punitive causes such as the
punishment of crimes against natural society (see above) and anticipatory defense.
Whereas only an actual attack can justify self-defense, a plot to attack, once set in
motion, is already a crime (II.I.xvi). Under the cause of punishment, a state may resort
to preemptive warfare which defense alone could not justify. Finally, every exercise of
punishment must be limited to the achievement of certain goods. While the right to
punish has a retributive justification rooted in the offenders obligation to endure it, the
exercise of this right ought to be governed by consequentialist considerations. The good
of the offender, of the victim and of the broader society, are all relevant benefits that
need to be weighed against the harms to each of these (II.XX.iv-ix). Especially when the
consequences of punishment include a broader war, these considerations may urge
clemency, restraint or even pardon (II.XX.xxii-iv and xxxiv-xxxvi; see II.XXIV.ii-iii).

There is a general pattern of argumentthat people are permitted, in the strictness of

justice, to use violence in a great many cases that will nonetheless call for moderation in
the name of humanity and peacethat characterizes the whole of De Jure Belli ac Pacis.
Justice is a crucial virtue, as the maintenance of society and respect of law require it, but
its guidance is limited to these minimal aims. To know what the laws ought to be and to
decide when and how far to exercise ones rights, it becomes necessary to follow the
promptings of equity, humanity and prudence. These virtues which have as their object
the good of others (I.I.viii) not only serve to measure the proper severity of
punishments but also to determine whether war for a punitive cause is warranted at all.
Humaneness imposes a moral limit, too, in how far one ought to press rights to
property, so as not to use market power to squeeze people (II.XII.xvi) or to withhold
vital information when making contracts (II.XII.ix). Even in self-defense, the resort to
war can have humanitarian consequences that speak strongly against making full use of
ones right (II.I.iv, viii, ix and xi). It would be a grave error, Grotius warns, to think that
where a right has been adequately established, either war should be waged forthwith,
or even that war is permissible in all cases (II.XXIV.i). The resort to war must be
squared not only with justice but with humanitarian concerns, especially for its impact
on the lives of innocent people. This loving regard for others that aspires to universality
is what Grotius held up, in his works on religion, as the great ethical appeal of the
Gospel, and De Jure Belli instructs its readers to recognize that not only humanity but
also God calls them to love, forbearance and restraint.

c. Just War: Jus in Bello

The meshing of these normative standards of justice and humanity is especially
pronounced in Grotius treatment of the conduct of war in Book III of De Jure Belli. The
natural law provides but one basic rule for the conduct of war: things which lead to an
end receive their intrinsic value from the end itself (JBP III.I.ii). That is, if one has a
right to resort to war, then one has a right to conduct the war by whatever means are
necessary to vindicate the just case. Grotius finds natural justice an unsatisfactory basis
for the ethics of combat for two main reasons: (i) it permits inhumane and intemperate
actions on the part of those who fight under a just cause, and (ii) it provides no guidance
whatsoever for those who fight under an unjust cause. The answer to the first deficiency
is Grotius account of temperamenta, discussed below. The second deficiency finds its
solution in the law of nations. Grotius recognizes that while no war can be naturally just
on both sidesa right on one side precludes a right on the otherwars may be either
unjust on both sides or justifiably believed to be just on both sides. In either case, there
are belligerents for whom natural justice provides no guidance other than, your cause is
unjust: stop fighting. Grotius resigns himself to the realism that, aside from exceptional
cases, most states will not admit to the injustice of their cause and simply stop fighting.
The longer such states fight, the more injustices they pile up by resisting the just party.

Before long there would be no limit to the punitive war that could be prosecuted against
the unjust state (see III.IV.iv). Grotius suggests that nations, recognizing the perils of
this situation, established a custom of holding both parties in a war to have equal
standing on the battlefield. That is, the law of nations permits to both sides (regardless
of the justice of their cause) all the actions that the natural law would permit to the just.
The customs of warfare under the law of nations turn out to be extremely permissive.
Tracking the prevailing practice of states, the customs permit everything from the
slaughter of innocents to the taking of slaves and the looting of civilian property. License
to conduct warfare in this way is the special privilege of sovereigns who have
solemnized their war under the law of nations. Indifferent to the substantive justice of
a states cause, the law of nations insists instead on certain formalitiesa public
declaration by the sovereign authorityto give the belligerent its legal status in a solemn
war (I.III.iv and III.III). While Grotius defends this status as a way of restoring normal
relations between sovereigns at the end of war, he insists that even kings remain
accountable to natural justice. The law of nations is derived from human will, and the
license it gives in solemn wars cannot contradict the requirements of natural law. The
license amounts to an agreement among nations not to punish each other for certain
acts (III.IV.ii-iii). So, after many lengthy chapters detailing the range of actions
permitted by the law of nations, Grotius takes an abrupt turn, telling the reader that he
must now retrace his steps and deprive those who wage war of nearly all the privileges
which I seemed to grant, yet did not grant to them (III.X.i). Those waging a solemn war
may have the privilege of impunity under human law, but a sense of shame ought to
instill a respect not only for the external judgments of the courts but for the internal
judgments of conscience (III.X and III.XI.i-ii). Those waging an unjust war will be
accountable to God, and they have an (unenforceable) obligation to make restitution to
those they have wronged. Even those waging war for a just cause should observe the
limits of natural justice by sparing the innocent and pursuing only those war aims that
are necessary to securing ones rights. Conducting war merely within the bounds of the
law of nations may obtain impunity, but it brings no badge of honor.
What makes kings and peoples worthy of honor is their observance of temperamenta:
moderation and restraint in pursuing their just claims. Such restraint comes out of a
respect for justiceby restricting the means of war to only what is necessary to
achieving the endsand also out of a sense of humanity. This humane concern for
others seeks to limit the impact of war on the innocent and even those fighting on the
opposing side (see, for example, III.XI.viii, XII.viii, and XIII.iv). It requires in many
cases the remission of punishment, to forgiveness of burdensome war debts, and a
preference for restoring local sovereignty rather than imposing imperial rule. At all
events, one must uphold good faith in agreements made with the other side in order to
build the basis for normal relations after the war (III.XXI-XXV). Humanity holds in

view not only the aim of restoring rights but of restoring peace (see III.XXV.ii-iii).
Justice might condone war against injuries that threaten the basis for living together in
society, but a sense of humanity is fostered by the recognition that we must live together
again.

SIR WILLIAM BLACKSTONE

BOOK 4, CHAPTER 5
Of Offenses Against the Law of Nations

ACCORDING to the method marked out in the preceding chapter, we are next to
consider the offenses more immediately repugnant to that universal law of society,
which regulates the mutual intercourse between one state and another; those, I
mean, which are particularly animadverted on, as such, by the English law.
THE law of nations is a system of rules, deducible by natural reason, and
established by universal consent among the civilized inhabitants of the world; 1 in
order to decide all disputes, to regulate all ceremonies and civilities, and to insure
the observance frequently occur between two or more independent states, and the
individuals belonging to each.2 This general law is founded upon this principle, that
different nations ought in time of peace to do one another all the good they can;
and, in time of war, as little harm as possible, without prejudice to their own real
interests.3 And, as none of these states will allow a superiority in the other,
therefore neither can dictate or prescribe the rules of this law to the rest; but such
rules must necessarily result from those principles of natural justice, in which all
the learned of every nation agree: or they depend upon mutual compacts or
treaties between the respective communities; in the construction of which there is
also no judge to resort to, but the law of nature and reason, being the only one in
which all the contracting parties are equally conversant, and to which they are
equally subject.
IN arbitrary states this law, wherever it contradicts or is not provided for by the
municipal law of the country, is enforced by the royal power: but since in England
no royal power can introduce a new law, or suspend the execution of the old,
therefore the law of nations (wherever any question arises which is properly the
object of its jurisdiction) is here adopted in its full extent by the common law, and is
held to be a part of the law of the land. And those acts of parliament, which have
from time to time been made to enforce this universal law, or to facilitate the
execution of its decisions, are not to be considered as introductive of any new rule,

but merely as declaratory of the old fundamental constitutions of the kingdom;

without which it must cease to be a part of the civilized world. Thus in mercantile
questions, such as bills of exchange and the like; in all marine causes, relating to
freight, average, demurrage, insurances, bottomry, and others of a similar nature;
the lawmerchant,4 which is a branch of the law of nations, is regularly and
constantly adhered to. So too in all disputes relating to prizes, to shipwrecks, to
hostages, and ransom bills, there is no other rule of decision but this great
universal law, collected from history and usage and such writers of all nations and
languages as are generally approved and allowed of.
BUT, though in civil transactions and questions of property between the subjects of
different states, the law of nations has much scope and extent, as adopted by the
law of England; yet the present branch of our inquiries will fall within a narrow
compass, as offenses against the law of nations can rarely be the object of the
criminal law of any particular state. For offenses against this law are principally
incident to whole states or nations: in which case recourse can only be had to war;
which is an appeal to the god of hosts, to punish such infractions of public faith, as
are committed by one independent people against another: neither state having
any superior jurisdiction to resort to upon earth for justice. But where the
individuals of any state violate this general law, it is then the interest as well as duty
of the government under which they live, to animadvert upon them with a
becoming severity, that the peace of the world may be maintained. For in vain
would nations in their collective capacity observe these universal rules, if private
subjects were at liberty to break them at their own discretion, and involve the two
states in a war. It is therefore incumbent upon the nation injured, first to
satisfaction and justice to be done on the offender, by the state to which he
belongs; and, if that be refused or neglected, the sovereign then avows himself an
accomplice or abettor of his subjects crime, and draws upon his community the
calamities of foreign war.
THE principal offense against the law of nations, animadverted on as such by the
municipal laws of England, are of three kinds; 1. Violation of safe-conducts; 2.
Infringement of the rights of ambassadors; and, 3. Piracy.
1. AS to the first, violation of safe-conducts or passports, expressly granted by the
king or his ambassadors5 to the subjects of a foreign power in time of mutual war;
or, committing acts of hostility against such as are in amity, league, or truce with us,
who are here under a general implied safe-conduct; are breaches of the public
faith, without the preservation of which there can be no intercourse or commerce

between one nation and another: and such offenses may, according to the writers
upon the law of nations, be a just ground of a national war; since it is not in the
power of the foreign prince to cause justice to be done to his subjects by the very
individual delinquent, but he must require it of the whole community. And as
during the continuance of any safe-conduct, either express or implied, the foreigner
is under the protection of the king and the law; and, more especially, as it is one of
the articles of Magna Carta,6 that foreign merchants shall be entitled to safeconduct and security throughout the kingdom; there is no question but that any
violation of either the person or property of such foreigner may be punished by
indictment in the name of the king, whose honor is more particularly engaged in
supporting his own safe-conduct. And, when this malicious rapacity was not
confined to private individuals, but broke out into general hostilities, by the statute
2 Hen. V. st.1. c. 6. breaking of truce and safe-conduct, or abetting and receiving the
truce breakers, was (in affirmance and support of the law of nations) declared to be
high treason against the crown and dignity of the king; and conservators of truce
and safe-conducts were appointed in every port, and empowered to hear and
determine such treasons (when committed at sea) according to the ancient marine
law then practiced in the admirals court: and, together with two men learned in the
law of the land, to hear and determine according to that law the same treasons,
when committed within the body of any county. Which statute, so far as it made
these offenses amount to treason, was suspended by 14 Hen. VI. c. 8. and repealed
by 20 Hen. VI. c.11. but revived by 29 Hen. VI. c. 2. which gave the same powers to
the lord chancellor, associated with either of the chief justices, as belonged to the
conservators of truce and their assessors; and enacted that, notwithstanding the
party be convicted of treason, the injured stranger should have restitution out of
his effects, prior to any claim of the crown. And it is farther enacted by the statute
31 Hen. VI. c.4. that if any of the kings subjects attempt or offend, upon the sea, or
in port within the kings obeisance, against any stranger in amity, league, or under
safe-conduct; and especially by attaching his person, or spoiling him, or robbing
him of his goods; the lord chancellor, with any of the justices of either the kings
bench or common pleas, may cause full restitution and amends to be made to the
injured.
IT is to be observed, that the suspending and repealing acts of 14 & 20 Hen. VI, and
also the reviving act of 29 Hen. VI, were only temporary; so that it should seem that,
after the expiration of them all, the statute 2 Hen. V continued in full force: but yet
it is considered as extinct by the statute 14 Edw. IV. c. 4. which revives and confirms
all statutes and ordinances made before the accession of the house of York against

breakers of amities, truces, leagues, and safe-conducts, with an express exception

to the statutes of 2 Hen. V. But (however that may be) I apprehend it was finally
repealed by the general statutes of Edward VI and queen Mary, for abolishing newcreated treasons; though Sir Matthew Hale seems to question it as to treasons
committed on the sea.7 But certainly the statute of 31 Hen. VI remains in full force
to this day.
II. AS to the rights of ambassadors, which are also established by the law of nations,
and are therefore matter of universal concern, they have formerly been treated of
at large.8 It may here be sufficient to remark, that the common law of England
recognizes them in their full extent, by immediately stopping all legal process, sued
out through the ignorance or rashness of individuals, which may entrench upon the
immunities of a foreign minister or any of his train. And, the more effectually to
enforce the law of nations in this respect, when violated through wantonness or
insolence, it is declared by the statute 7 Ann. c. 12. that all process whereby the
person of any ambassador, or of his domestic or domestic servant, may be
arrested, or his goods distrained or seized, shall be utterly null and void; and that
all persons prosecuting, soliciting, or executing such process, being convicted by
confession or the oath of one witness, before the lord chancellor and the chief
justices, or any two of them, shall be deemed violators of the laws of nations, and
disturbers of the public repose; and shall suffer such penalties and corporal
punishment as the said judges, of any two of them, shall think fit. 9 Thus, in cases of
extraordinary outrage, for which the law has provided no special penalty, the
legislature has entrusted to the three principal judges of the kingdom an unlimited
power of proportioning the punishment to the crime.
III. LASTLY, the crime of piracy, or robbery and depredation upon the high seas, is
an offense against the universal law of society; a pirate being, according to Sir
Edward Coke,10 hostis humani generis [enemy to mankind]. As therefore he has
renounced all the benefits of society and government, and has reduced himself
afresh to the savage state of nature, by declaring war against all mankind, all
mankind must declare war against him: so that every community has a right, by the
rule of self-defense, to inflict that punishment upon him, which every individual
would in a state of nature have been otherwise entitled to do, any invasion of his
person or personal property.
BY the ancient common law, piracy, if committed by a subject, was held to be a
species of treason, being contrary to his natural allegiance; and by an alien to be
felony only: but now, since the statute of treasons, 25 Edw. III. c. 2. it is held to be

only felony in a subject.11 Formerly it was only cognizable by the admiralty courts,
which proceed by the rule of the civil law.12 But, it being inconsistent with the
liberties of the nation, that any mans life should be taken away, unless by the
judgment of his peers, or the common law of the land, the statute 28 Hen. VIII. c.
15. established a new jurisdiction for this purpose; which proceeds according to the
course of the common law, and of which we shall say more hereafter.
THE offense of piracy, by common law, consists in committing those act of robbery
and depredation upon the high seas, which, if committed upon land, would have
amounted to felony there.13 As, by statute 11 & 12 W. III. c. 7. if any natural born
subject commits any act of hostility upon the high seas, against others of his
majestys subjects, under color of a commission from any foreign power; this,
though it would only be an act of war in an alien, shall be construed piracy in a
subject. And farther, any commander, or other seafaring person, betraying his
trust, and running away with any ship, boat, ordnance, ammunition, or goods; or
yielding them up voluntarily to a pirate; or conspiring to do these acts; or any
person confusing the commander of a vessel, to hinder him from fighting in
defense of his ship, or to cause a revolt on board; shall, for each of these offenses,
be adjudged a pirate, felon, and robber, and shall suffer death, whether he be
principal or accessory. By the statute 8 Geo. I. c. 24. the trading with known pirates,
or furnishing them with stores or ammunition, or fitting out any vessel for that
purpose, or in any wise consulting, combining, confederating, or corresponding
with them; or the forcibly boarding any merchant vessel, though without seizing or
carrying her off, and destroying or throwing any of the goods overboard; shall be
deemed piracy: and all accessories to piracy, are declared to be principal pirates,
and felons without benefit of clergy. By the same statutes also, (to encourage the
defense of merchant vessels against pirates) the commanders or seamen
wounded, and the widows of such seamen as are slain, in any piratical engagement,
shall be entitled to a bounty, to be divided among them, not exceeding one fiftieth
part of the value of the cargo on board: and such wounded seamen shall entitled to
the pension of Greenwich hospital; which no other seamen are, except only such as
have served in a ship of war. And if the commander shall behave cowardly, by not
defending the ship, if she carries guns or arms, or shall discharge the mariners
from fighting, so that the ship falls into the hands of pirates, such commander shall
forfeit all his wages, and suffer six months imprisonment.
THESE are the principal cases, in which the statute law of England interposes, to aid
and enforce the law of nations, as a part of the common law; inflicting an adequate

punishment upon offenses against that universal law, committed by private

persons. We shall proceed in the next chapter to consider offenses, which more
immediately affect the sovereign executive power of our own particular state, or
the king and government; which species of crimes branches itself into a much
larger extent, than either of those of which we have already treated.
Jacques Maritain and Dignitatis Humanae: Natural Law as the Common Language
of Religious Freedom | Brian Jones, M.A. | Ignatius Insight
The Thomist philosopher Jacques Maritain has been regarded by some (notably Professors Ralph McInerny and
Jude P. Dougherty) as the greatest Catholic philosopher of the twentieth century. Maritain's achievement as a
philosopher was rooted in his integration of Thomistic principles with the historical and cultural climates current in the
modern world.
Not only was he influential in his native France, he also gained enthusiastic acclaim in North America, where he held
visiting professorships at Princeton and the University of Chicago, and lectured at Notre Dame, Yale, Harvard, and
the University of Toronto. Pope Paul VI readily admitted the profound influence of Maritain's thought on his Credo of
the People of God (1968), and at the close of the Second Vatican Council on December 8, 1965, the pope's "Address
to Men of Thought and Science" was dedicated to his dear friend and mentor. Pope Paul even offered Maritain a
cardinal's hat, but the philosopher declined it. These things indicate the immense influence that Maritain had in
political, philosophical, and theological circles during the last century.
The Second Vatican Council's Declaration on Religious FreedomDignitatis Humanaeis still, though often
neglected and misunderstood, a prophetic document. Here, I should like to reveal how, on a foundational level,
Maritain's presentation on "rights" in his book Man and the State (1951) is an authentic articulation of the language of
"rights" that Dignitatis Humanaeemploys.
Although the book, and Maritain's involvement with the United Nations International Declaration on Rights in 1948,
preceded Dignitatis Humanae by almost twenty years, Maritain's thought on the subject of "rights" is nevertheless
significant and important here. His personal experience of the debilitating spiritual, moral, and cultural effects of the
French Revolution and the two World Wars, as well as his acknowledged influence, indicate the likely merit of an
analysis of his work in connexion with Dignitatis Humanae.
A specific focus on Maritain is in no way an attempt to see his work in isolation as the only useful source in
considering the conciliar document. Neither does this essay claim that everything written in the area of "rights" by
Maritain is to be accepted without scrutiny or further examination. Rather, my point is to highlight the foundational
principles of Dignitatis Humanae, as articulated in Maritain's thought, in order further to establish a common language
in the context of the modern discussion of the right to religious freedom.
The opening paragraph of Dignitatis Humanae states that "a sense of the dignity of the human person has been
impressing itself more and more deeply on the consciousness of contemporary man". The Council declares that the
human person has a right to religious freedom, and "this freedom means that all men are to be immune from coercion
on the part of individuals or of social groups and of any human power".
In his section of Man and the State concerning the "Rights of Man", Maritain states that there is no right of man
"unless a certain orderwhich can be violated in factis inviolably required by what things are in their intelligible
type or their essence, or by what the nature of man is, and is cut out for". [1] In other words, the discussion of "rights"
only makes sense if the participants involved hold to a proper anthropology, one that contemplates what man is in his
nature and what his destiny is. Maritain continues by saying that dialogue concerning the truths about man and his
ends can only take place if we recognize that the foundation of these rights "exists in a separate Spirit, in an Absolute
which is superior to the world, in what perennial philosophy calls the Eternal Law". [2]
Professor Mary Ann Glendon of the Harvard Law School has written that one of the greatest errors of modern culture,
stemming from 18th-century Enlightenment philosophy, is its absolutizing of "rights"as if "rights" were an
autonomous licensed form of freedom that rejects any form of responsibility or duty. This is exactly the interpretive
key that helps to unlock the "rights" language of Dignitatis Humanae, where the document warns against those "who

seem inclined to use the name of freedom as the pretext for refusing to submit to authority and for making light of the
duty of obedience". [3]
The Council affirms that the dignity of the human person rests on the truth that man is a being endowed with reason
and free will, and this sacred reality is known through Divine Revelation and reason itself. This truth about man, that
he has been created with intelligence and freedom, impels him to be an ardent seeker of truth, "especially religious
truth". [4] Once this truth is known, man must assent to it, but only in a freedom that is removed from all forms of
religious and/or civil coercion. The dignity of the human person reveals this: "the inquiry is to be free, carried on with
the aid of teaching or instruction, communication and dialogue, in the course of which men explain to one another the
truth they have discovered, or think they have discovered, in order thus to assist one another in the quest for truth."
[5]
The philosophical anthropology that we have received since the time of the Enlightenment has built no solid
foundations for the rights of the human person. The true rights of man have been squandered because "it [the
Enlightenment] led men to conceive of rights as divine in themselves, hence infinite, escaping every objective
measure, denying every limitation imposed upon the claims of ego". [6] This has led to the complete independence of
the human subject, with his imagined absolute right to develop his human potentialities and abilities at the expense of
all other beings.
Maritain believes that the best philosophy with which to refute this tendency is one that is rooted in a specific
ontological structure, one which affirms that man possesses ends which necessarily correspond to his essential
constitution and pertain to all. Since man is endowed with "intelligence and determines his own ends, it is up to him to
put himself in tune with the ends necessarily demanded by his nature . . . this means that there is, by virtue of human
nature, an order or a disposition which human reason can discover and according to which the human will must act in
order to attune itself to the essential and necessary ends of the human being". [7]
This is none other than the Natural Law. The Natural Law is not only ontological, but also a social reality because it
does not "exist separately, but in every human being, so that by the same token, natural law dwells as an ideal order
in the very being of all existing men". [8] Here Maritain is talking about the natural moral obligations or rights that exist
in all men, and that have a specific social character, which Dignitatis Humanae affirms by stating that the right to
religious freedom
. . . is exercised in human society: hence its exercise is subject to certain regulatory norms. In the use of all freedoms
the moral principle of personal and social responsibility is to be observed. In the exercise of their rights, individual
men and social groups are bound by the moral law to have respect both for the rights of others and for their own
duties toward others and for the common welfare of all. Men are to deal with their fellows in justice and civility. [9]
At this point, the question may be asked: what is the connexion between rights, natural law, and religious freedom? It
is important to remember that up until the full development of Enlightenment thought in the eighteenth century, talk of
rights was always connected with the Natural Law. A breakdown in the proper understanding of the Natural Law has
led, and always will lead, to an intellectual disintegration concerning the origin of the rights of man.
Even in the area of interreligious dialogue, one of the greatest difficulties stems from the fact that there is no common
language spoken by all the participants. The right to religious freedom must be protected and guaranteed by all
societies, constitutions, and religions because the essential dignity of the human person requires it. Again, as the
Council and Maritain have affirmed, to reject religious freedom or to force another to believe something against his
personal free choice is a grave violation of the rights of the individual, and will also harm the common good of a
society.
In light of the continuing attacks on the dignity of the human person through abortion, euthanasia, and religious
persecution, it is becoming all the more necessary to return to the text of Dignitatis Humanae. The work of Jacques
Maritain is an engaging and remarkable guide to help put flesh on the principles which the document enunciates. This
discussion of "rights" is part of the dominant language being spoken in our current socio-political environment, and
cannot be avoided. Dignitatis Humanae calls not only Catholics, but all those who hold to a religious tradition, to seek
to ensure that as beings endowed with freedom and intelligence, men's right to religious freedom be protected,
publicly and not just privately, for the common good of all society.
As Pope Benedict XVI stated in 2007: "Human freedom is always a shared freedom. It is clear that the harmony of
freedom can only be found in what is common to all: the truth of the human being, the fundamental message of being
itself, exactly the lex naturalis." [10] It is worth quoting the Holy Father's Address this year to the Pontifical Academy
of the Social Sciences, wherein he states that the Church has always affirmed that

[Fundamental rights,] above and beyond the different ways in which they are formulated and the different degrees of
importance they may have in various cultural contexts, are to be upheld and accorded universal recognition because
they are inherent in the very nature of man, who is created in the image and likeness of God. If all human beings are
created in the image and likeness of God, then they share a common nature that binds them together and calls for
universal respect. The Church, assimilating the teaching of Christ, considers the person as 'the worthiest of nature'
(St. Thomas Aquinas, De Potentia, 9, 3) and has taught that the ethical and political order that governs relationships
between persons finds its origin in the very structure of man's being. [11]