Natural Rights

Have you ever thought of if there is a higher norm above laws that our government has passed? What happens if our government passes an unjust law? Check out what previous legal scholars have said on the topic of natural rights! Feel free to comment on what you think.


Image from National Review, The American Understanding of Natural Rights

Aquinas (1225-74) - what is reasonable?

  • distinguishes eternal law (God), divine law (scripture), natural law (by reason), human law

  • we have a continuing duty to seek good

  • lex iniusta non est lex - an unjust law is not a law (though modern scholars maintain that he did not make the claim)

  • justify revolution as it infringed on individual's rights

Grotius (1583-1645) - the basis of public international law, the secularization of natural law

  • De Jure Belli ac Pacis: even if God doesn't exist, there will still be international law

Hobbes (1588-1679) - Leviathan

  • without a social contract, we will be in chaos

  • competition

  • distrust

  • glory

  • everything comes out of selfish nature

  • four laws of nature:

  1. peace

  2. people cannot murder each other

  3. a public authority (sovereign) has the responsibility to regulate/punish violations

  4. people should honor the order


Locke (1632-1704) - limited

  • before social contract, life was in paradise (however, no protection of property)

  • secede parts of natural rights in a social contract to sovereign

  • preserve natural rights to life: life, liberty, property, and enjoyment of private rights

  • prototype of limited government

Rousseau (1712-78) - man must 'be forced to be free'

  • 'general will' can infringe upon those rights to protect the society

  • democratism and totalitarianism - dictatorship in the name of liberty and equality

Hume (1711-76) - questioning the logic behind natural rights

  • what ought to be could not be derived from what is

  • however, in the Nuremberg trial (real-world application), judges perceive natural rights as a benchmark for positive law. Latter flourishment of ECHR.

Lon Fuller (1902-78) - 'inner morality of law'

  • there's a difference between law "exists" and law being "effective"

  • eight 'desiderata' certifies of a ruler

  1. generality

  2. promulgation

  3. non-retroactivity

  4. clarity

  5. non-contradiction

  6. possibility of compliance

  7. constancy

  8. congruence between declared rule and official action

  • doesn't prevent an evil regime

John Finnis (1940) - our determination of whether a law is 'good' is on the basis of us making assumptions

  • what leads to a desirable life? seven basic forms of human flourishing

  1. Life

  2. Knowledge

  3. Play

  4. Aesthetic experience

  5. sociability (friendship)

  6. practical reasonableness

  7. 'religion' (does not have to be organized religion, can just be a spiritual experience)

  • says that Aquinas meant that 'experiencing one nature' is possible with finding a common good


 

Credits

The information provided above is all credited to Raymond Wacks's Philosophy of Law: A Very Short Introduction.

P.S. If you are really interested in exploring the world of jurisprudence (on 'What is law?"), make sure to check out his book!!


#jurisprudence #notes #introduction

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