These lecture notes are from The Politics of Jurisprudence by Roger Cotterrell Natural Law in Political Thought by Paul E. Sigmund, and the Dictionary of the History of Ideas Volume III by Philip P. Weiner. (Please note that these are lecture notes and that they may contain grammatical errors, etc.)

There are no coincidences.

In contrast to legal positivism stands a tradition of thought adopting an apparently diametrically opposed position -- that law cannot be properly understood except in moral terms; that it is fundamentally a moral phenomenon; that questions of law's nature and existence cannot be isolated from questions about its moral worth. This tradition is usually termed natural law theory. Its history extends through at least 2,500 years of Western philosophy. One of its most powerful theses (though an ambiguous one, as will appear) is expressed in the declaration that lex iniusta non est lex - - an unjust law is no law at all. It may well be that statements like this in the history of natural law theory have never meant what they seem, at face value, to mean. Nevertheless, they do suggest the persistent claim that questions about the nature of law and the conditions of its existence as an authoritative normative order cannot be treated in isolation from questions about its moral foundations. Thus, typically, in many different ways throughout its long history, natural law theory has: postulated the existence of moral principles having a validity and authority independent of human enactment, and which can be thought of as a 'higher' or more fundamental law against which the worth or authority of human law can be judged. This fundamental 'natural law' is variously seen as derived from human nature, the natural conditions of existence of humanity, the natural order of the universe, or the eternal 'Law of God.' The method of discovering it is usually claimed to be human reason, Natural Law thus requires no human legislator. Yet it stand in judgment on the law created by human legislators.

As a philosophy and as an ideology it played a central role in three important historical events--the extension of the influence of Roman civilization and law over Western Europe; the fusion of Christianity and classical culture in the Middle Ages and the emergence of liberal individualism from the sixteenth to the eighteenth century. The theory of natural law was used in each of these developments to provide a universal, rational standard to determine the nature and limits of political obligation, the evaluation of competing forms of government, and the relation of law and politics to morals.

There seems to be a central assertion expressed or implied in most theories of natural law. This is the belief that there exists in nature and/or human nature a rational order which can provide intelligible value-statements independently of human will, that are universal in application, unchangeable in their ultimate content, and morally obligatory on mankind. These statements are expressed as laws or as moral imperatives that provide a basis for the evaluation of legal and political structures. While some forms of the theory have associated natural law which scientific "laws of nature" the two are conceptually distinct. Natural law theories contain morals or prescriptions designed to produce or evaluate human conduct, while the laws of nature are expressions of observed regularities in human actions or in the physical universe.

Yet in all its diverse forms, the theory of Natural Law represents a common affirmation about the possibility of arriving at objective standards, and a common procedure for looking for a purposive order in nature and man. This affirmation and this procedure have been challenged since the time of the Greeks by classical skeptics, Christian fideists, and modern philosophers and social scientists. Natural law theories have been criticized for their claims to absolutism in the face of the historical and geographical relativity of human mores and political systems, its contents have been viewed as either too vague or too restrictive, its belief in an ordered nature has been attacked for attributing a purposiveness to what is fluid, aimless and constantly changing reality, both in the universe and in man.

Thought is considered the highest virtue, and wisdom consists in saying what is true and in acting according to nature by listening to its voice.

The subordination of matter to the mind and the subjection of the senses to reason were to become the fundamental principles of natural law. At all times in every period and in every place, actions are considered just and others unjust, licit or illicit, authorized or forbidden; forbidden to betray one's county, to steal, to kill, not to do unto others what one would not have others do unto one. This emphasizes at the same time the recognition in man of preexisting rights in the from of individual rights, natural rights which were to be recognized in every individual as irreducible patrimony.

God is believed to have confirmed natural law or to have given it to humankind.

Natural law is the same everywhere, for it is not the work of an initial institinct but the result of a genuine instinct, based on nature independently of the vacillations of opinion with divergent views of civil law.

Natural law is the oldest, going back, as it does to the origins of humankind. Civil laws afterward codified the habits and customs of men. Natural law is the most stable without variation in each era. Finally, natural law transcends positive law in such ways that if certain things are accepted by custom or by written law but are contrary to natural law they are null and void.

In short, Aquinas viewed the universe as governed by eternal law; man is subject to natural law, which is only the reflection of divine reason, and finally human law simply applies the precepts and principles of natural law by adapting them to the particular needs and circumstances of social life.

Natural law is thus a presentation of right reason according to which we necessarily judge an action to be just or immoral depending on its conformity with reasonable and social nature. God, the author of nature may thus defend some law and condemn others.

All of these theories were soon to find a field of application. The accession to independence by the United States had brought with it published declarations which were marked by national and individualistic natural law ideas guaranteeing citizens against abuses by the sovereign power. The Constitution of the State of Virginia (1776) is prefaced by such a declaration, and the same is true of other state constitutions.

Natural law is thus called upon to meet the deficiencies of judicial ordinances and to supplement positive law; thereby the rule of natural law becomes the rule of positive law.

It is well known that the Declaration of Independence was based on the natural rights philosophy of John Locke.

Though the expression ''natural law'' is equivocal, the idea of ''natural rights'' presents much less ambiguity. By natural rights we understand the subjective rights that man possesses as a human being, which are granted to his person for the protection of certain essential interests. These rights are considered the irreducible legal patrimony of every human being as part of his very nature. They are based on the idea that only a human being is a person and that every human being is a person. Therefore, these rights are inalienable and imprescriptible. Inalienable, because if these rights would be given up, man would cease to be a person and become a case of alienation imprescriptible, because if these rights ceased to exist man would likewise cease to he a person in his prescribed, condition.

Natural rights thus appear as a manifestation of individualism, man being considered in his own nature independently of his political allegiance. They consecrate the idea of the dignity of the human person considered as such.

Blackstone clearly rejects any attempt to give judges the power to declare legislation void because of its opposition to a superior natural law and this has remained the prevailing doctrine of British law since the eighteenth century.

At the very time, then, that British lawyers were ascribing to the English Parliament an unlimited right to make law, American theory was using earlier doctrines of the superiority of natural and common law to assert general limits on the legislature and by the close association of higher law doctrines with those of the supremacy of fundamental or constitutional law, preparing the way for the characteristically American institution of judicial review.

Although they also referred to the historic rights of Englishmen, it was to natural law that the colonists principally appealed in the Declaration of Independence. Specifically they appealed to the natural right of the people to revolt when its rights have been abused. The Declaration, as composed by Jefferson and adopted by the Second Continental Congress, was based on the principles enunciated in Locke's Second Treatise, although with one difference, the enumerated inalienable rights were said to be life, liberty, and the ''the pursuit of happiness,'' rather than the Lockean trilogy of life, liberty, and property .... The Lockean formulation of life, liberty, property reappeared subsequently in the ''due process'' clauses of the Fifth and Fourteenth amendments to the American Constitution.

It is one of the ironies of American history that the first draft of the Declaration, as written by Jefferson, contained a condemnation of slavery among its list of complaints against George III. The passage was struck out by the Second Continental Congress, but it indicates that Jefferson, although a slave owner was aware that the institution was a violation of the natural right of human liberty. Yet rather than weaken the appeal for national independence by alienating slaveholders the Continental Congress decided to avoid any reference to slavery in the Declaration.

Natural law doctrines of limited government and inalienable rights prepared the way for the institution of judicial review, and it was by an appeal to the nature of a constitution as fundamental law that John Marshall in Marbury v. Madision (1803) claimed for the Supreme Court the right to decide on the constitutionality of legislative acts.

As the examples cited indicate, the Court now has asserted for itself very wide areas of discretion in determining both the substance and procedure of a free and democratic society. This is based on constitutional provisions, principally the due process clauses of the Fifth and Fourteenth Amendments, which are so vague and general that the Court is open to the charge that it is simply legislating its own views on the nature of the good society. Yet the alternative is to leave the determination of the definition of democratic liberties to the often-less-than-tender mercies of legislative majorities-which Americans have not been willing to do up to the present. The result is that despite a certain inevitable subjectivity in court decisions on these subjects we will continue to incorporate a type of quasi-natural law thinking as an important element in the American political system.