Classical theories of law

Classical theories of law refer to a set of

foundational legal theories that have had a
significant influence on the development of
legal systems and jurisprudence over the
centuries. These theories provide different
perspectives on the nature, sources, and
functions of law. Here are some of the most
prominent classical theories of law:

1. Natural Law Theory: Natural law theory

posits that law is derived from inherent
principles of morality and justice that are
universally applicable to all human beings.
According to this theory, laws should reflect
these fundamental principles, which are
discoverable through reason and are
independent of human-made laws.

2. Legal Positivism: Legal positivism

emphasizes the separation of law from moral
and ethical considerations. According to this
theory, law is a social construct created by
human authorities, such as legislatures or
courts, and its validity depends on its formal
enactment and recognition by the relevant
legal institutions.

3. Legal Realism: Legal realism rejects the idea

that law can be understood solely through
abstract principles or legal texts. It emphasizes
the practical impact of law and focuses on the
role of judges and legal practitioners in shaping
and interpreting the law. Legal realists argue
that legal decisions are influenced by social,
economic, and political factors, rather than
being purely objective or value-neutral.

4. Historical School and sociological school:

The historical school of legal thought
emphasizes the importance of historical and
cultural context in understanding and
interpreting the law. It asserts that legal
principles and norms evolve over time and are
shaped by social customs, traditions, and
historical developments. The historical school
seeks to understand legal systems by
examining their historical origins and
evolutionary processes.

5. Utilitarianism: Utilitarianism is a
consequentialist theory that evaluates the
moral worth of laws based on their overall
utility or usefulness in promoting the greatest
happiness or well-being of the greatest
number of people. From a utilitarian
perspective, laws should be designed to
maximize social welfare and minimize harm.

6. Formalism: Formalism emphasizes the

importance of legal rules and procedures,
focusing on the precise application and
interpretation of legal texts. This theory argues
that judges should strictly adhere to the letter
of the law and avoid subjective considerations
or personal biases when making legal
decisions.
These classical theories of law have influenced
legal thinking and continue to shape legal
systems around the world.

It is important to note that there are various

interpretations and variations within each
theory, and contemporary legal scholars often
combine elements from different theories to
develop more comprehensive and nuanced
approaches to law.
Natural Law Theory: Notes

I. Introduction

• Natural Law Theory is a philosophical and

legal belief system that posits the
existence of laws that are inherent in
nature and universally applicable.

• This theory posits that there are moral

laws that transcend human-made law, and
that these laws are accessible through
reason, observation of nature, and innate
human morality. Religion -religious beliefs.

II. Foundations of the natural law theory

The foundations of natural law theory can vary

depending on the specific interpretation and
philosopher, but some common elements can
be identified.
Here are a few key foundations of natural law:

1. Reason and Rationality: Natural law theory

often emphasizes the use of reason and
rationality to discern moral principles. It
suggests that humans have the capacity to
understand and discover fundamental moral
truths through reason and logic.

2. Human Nature: Natural law theory typically

assumes that human beings have a fixed and
essential nature that determines their moral
obligations. It holds that certain behaviors are
in accordance with human nature and
promote human flourishing, while others are
contrary to human nature and hinder human
well-being.

3. Teleology: Many natural law theories

incorporate teleological reasoning, which
asserts that nature has inherent purposes or
goals. According to this view, ethical principles
can be derived by understanding the natural
purposes or ends toward which things,
including human beings, naturally strive.

4. Law and Morality: Natural law theory often

maintains a close relationship between law
and morality. It suggests that just laws should
reflect and be consistent with the principles of
natural law. Conversely, unjust laws that
contradict natural law principles may be seen
as illegitimate and not morally binding.

5. Universality and Permanence (Objective

morality): Natural law is often seen as universal
and permanent, applicable to all cultures and
societies throughout time. It implies that moral
principles derived from natural law theory are
not subject to changing social conventions or
individual preferences.

6. Religious foundations

Natural law theory has often been associated

with religious foundations.
Many proponents of natural law throughout
history, such as St. Thomas Aquinas, have
incorporated religious beliefs into their
understanding of natural law.

In the context of religious foundations, natural

law theory often posits that moral principles
are grounded in a divine or transcendent
source.

According to this view, the moral order is seen

as reflecting the will of God or a higher power.

Moral principles derived from natural law are

believed to be in accordance with God's plan
or divine purpose for human beings.

Religious natural law theories argue that moral

truths can be discovered through both reason
and revelation.
Reason is used to discern the natural moral
order inherent in the world and human nature,
while revelation provides additional insights or
specific moral precepts that may not be
accessible through reason alone.

It is worth noting that natural law theory is not

exclusively religious.

As already shown above, there are also secular

(non-religious) conceptions of natural law that
seek to establish a basis for ethics and morality
grounded in reason, human nature, and the
natural order without invoking any religious
beliefs or divine authority.

Example: Article 1 of the Universal Declaration

of human Rights:

Article 1 of the UDHR states:

"All human beings are born free and equal in

dignity and rights. They are endowed with
reason and conscience and should act towards
one another in a spirit of brotherhood."

During the drafting of Article 1 of the Universal

Declaration of Human Rights (UDHR), several
philosophical debates and perspectives came
into play.

- Ethical Foundations: The philosophical

debates in drafting Article 1 also touched
upon the ethical foundations of human
rights. Discussions included references to
natural law, social contract theory, and
various religious and philosophical
traditions that recognize the inherent
worth and rights of every human being.

- Role of Reason and Conscience: The

inclusion of the phrase "endowed with
reason and conscience" in Article 1
reflected a recognition of human beings'
capacity for rational thought and moral
judgment. The debates explored the
 significance of human reason and
conscience in guiding individuals to act in
accordance with the principles of equality
and brotherhood.

III. Historical Background

1. Ancient Thought:

Some roots of the natural law theory can be

traced back to ancient Greek philosophy.

Thinkers like Socrates, Plato, and Aristotle

believed in a rational order to the universe.

Aristotle notably advanced the concept of a

"natural justice" that exists independent of the
laws of states.

Socrates (470–399 BC) and Plato (428–348 BC)

argued that there were principles of morality
which it was possible to discover through the
processes of reasoning and insight. According
to these philosophers, law based on these
principles would thus be the product of correct
reasoning.

Plato further developed the ‘idea’ of justice as

an absolute ‘thing in itself, having qualities of
truth and reality higher than those of positive
law, which could then be seen as a mere
shadow of real justice.

Law, according to Plato, must constantly strive

to approximate to the absolute idea of justice,
and ideal justice could only be achieved or fully
realised in an ideal state, ruled over by
philosopher-kings, who would be capable of
grasping the absolute idea of justice.

Aristotle (384–322 BC) recognised nature as

the capacity for development inherent in
particular things and aimed at a particular end
or purpose, both in relation to physical and
moral phenomena. He also made a distinction
between:

(a) Natural justice, common to all humanity

and based on the fundamental end or
purpose of human beings as social and
 political beings, which he concluded to be
the attainment of a ‘state of goodness’.

(b) Conventional justice, which varies from

state to state in accordance with the
history and needs of particular human
communities.

Classical Roman theorists

Cicero

Cicero (106–43 BC) argued that nature

provided rules by which humanity ought to
live; these rules, which could be discovered
through reason, should form the basis of all
law.

“True law is right reason in agreement with

nature, it is of universal application,
unchanging and everlasting; it summons to
duty by its commands and averts from
wrongdoing by its prohibitions… It is a sin to try
and alter this law, nor is it allowable to repeal
any part of it, and it is impossible to abolish it
entirely.”

- “Nor will it be one law at home and a different

one at Athens, nor otherwise tomorrow than it
is today; but one and the same law, eternal and
unchangeable, binding all peoples and all ages;
and God, its designer, expounder and enactor,
will be, as it were, the sole ruler and governor
of all things.” - De Legibus

Cicero established the view that an unjust law

is not law, arguing that a test of good law was
whether it accorded with the dictates of
nature.

The Stoics

The Stoics were a school of Ancient Greek

philosophy founded in Athens. Early 3rd
Century BC.

They identified nature with reason, arguing

that reason governs all parts of the universe
and that humans, as part of the universe and
of nature, are also governed by reason.
People, according to stoicism, will therefore
live ‘naturally’ if they lived according to their
reason.

2. Christian Tradition: In Christianity, natural

law theory was further developed by thinkers
like Thomas Aquinas and St. Augustine who
linked natural law to divine law—God's
commandments as set forth in the Bible—and
argued that natural law was a means for
humans to understand and participate in
divine law.

IV. Key Principles of Natural Law Theory

1. Universality: Natural laws are universally

applicable and unchanging. They apply to all
people, at all times, in all places, regardless of
cultural, societal, or legal differences.

2. Discoverability: Natural laws can be

discovered through the use of reason and the
observation of nature. This means that
humans have the ability to discern right from
wrong, independently of any specific legal
system or religious doctrine.

3. Hierarchy of Laws: Natural law theorists

often propose a hierarchy of laws, with natural
law at the top, followed by divine law (if
applicable), and finally human law. In this view,
human laws that conflict with natural law are
unjust and lack validity.

V. Natural Law and Morality

Natural law theory asserts a strong connection

between law and morality.

It proposes that the law should be based on

what is morally right and good, and that unjust
laws are not true laws at all.

This is in contrast to legal positivism, which

sees law and morality as separate.
Secularised natural law theorists: Hugo Grotius

One of the main secular Natural Law

theorists at this stage was Hugo Grotius, a
Dutch statesman and jurist who, in his
writings, sought to separate Natural Law
from its narrow theological foundations.

Instead, Grotius emphasised the classical

explanation of Natural Law as being
grounded in the authority of reason based
on the Aristotelian system— that is, that
Natural Law principles are derived or
derivable from the nature of the human
intellect, which requires and desires
society to be peaceful.

These principles, according to Grotius, are

independent of divine command, and it is
possible to have Natural Law without
appealing to God.

Any law contrary to the principles so

derived would be invalid from the point of
 view of rationality, and laws could be seen
as having a constructive and practical
function—the creation and maintenance
of a peaceful society.

Other thinkers

• Thinkers like Charles de Montesquieu

(1689–1755), David Hume (1711–76) and
Adam Smith (1723–90) criticized Natural
Law theory for its assertion that there was
some ultimate, metaphysical purpose to
human existence and human society,
separate from the moral and physical
realities of everyday life.

• Hume especially attacked the a priori

reasoning behind most Natural Law
thought, especially what he regarded as
being the irrational attempt to derive
“ought propositions” from “is
propositions”.
 th
19 Century – further departure from natural
law

• Hegel, sought to deify the State, which he

regarded as an end in itself, an absolute
sovereign whose essence derived from the
laws of history and was, therefore, not
subject to some external, higher law.

• Positivist approaches to law were

expounded by such theorists as Jeremy
Bentham and John Austin, which sought to
place a strict separation between the two
notions of what the law is and what it
ought to be.

• They argued that law and morality could

and, indeed, should be kept separate, and
the principles of Natural Law were
regarded as belonging more to the realm of
morality than to that of law.
 th
20 Century - The revival of Natural Law
theory

• The notion that there must be a higher

set of principles, separate from the
positive law, which the latter must satisfy
if it is to be regarded as valid law.

• The horrors of the two world wars:

- The Holocaust

- Advent of the modern human rights

movement (1945 to date)

VI. Criticisms of Natural Law Theory

1. Subjectivity: Critics argue that natural law

theory is subjective, as different cultures and
individuals can have different perceptions of
what is "natural" or "moral".
2. The Is-Ought Problem: This philosophical
problem, put forth by David Hume, challenges
the idea that what "is" (facts derived from
observation of nature) can directly inform
what "ought" to be (moral directives). Natural
law theory often assumes a direct link between
the two.

VII. Natural Law Theory in Modern Times

Although less dominant in contemporary legal

philosophy, natural law theory still influences
many areas of life and law.

For instance, it is often invoked in discussions

of human rights, as it supports the idea of
universal rights that all humans possess
regardless of their nation's laws.
VIII. Conclusion

Natural law theory is a significant school of

thought in philosophy and jurisprudence. Its
emphasis on morality, reason, and the
universality of certain laws has shaped legal
systems for centuries. Despite criticisms, it
continues to be a key framework in discussions
of law, morality, and justice.

These notes provide a basic outline of the

natural law theory.