GROUP1: NATURAL LAW THEORY AND ITS
APPLICATION
GROUP MEMBERS ADM. NO.
NOREEN JEPTOO 21S01ALLB022
ISAAC NG’ONG’A 21S01ALLB059
JOY JEBIWOT 21S01ALLB044
FESTUS IRERI 21S01ALLB049
DANIEL MURIIRA 21S01ALLB025
IVY HARIET 21S01ALLB071
CECILIA OKUMU 21S01ACRM018
INTRODUCTION
Natural law states that law should be based on inherent moral principles found in higher,
universal order and human beings are able to discern it through nature and human reason.
Natural law theory provides a framework for assessing the validity of law based on whether
it aligns with moral principles.
Natural law can be traced back to ancient Greek philosophers with Aristotle and Plato laying
its foundation.
Historical Development
historical development of natural law from the roman jurisprudence to the medieval scholars
and the modern philosophers of natural law
Roman jurisprudence – Cicero and Ulpian
Medieval Scholar – St. Thomas Aquinas
Modern Philosophers – John Locke and John Finnis
Kenya’s legal system has also
been significantly influenced by
natural law especially the
constitution of Kenya 2010 and
NATURAL human rights jurisprudence.
LAW THEORY The constitution embodies
principles of natural law by
IN KENYAN recognizing fundamental rights
and freedoms which are
JURISPRUDE inherent to all individuals.
NCE The judiciary has also decided
matters which align with
principles of natural law.
R v Karisa Chengo and 2
others – Right to Fair Trial
Katiba Institute & another v
Attorney General and
another – Right to access
information
1. Basis for human rights - they are
inherent and inalienable to all individuals.
UDHR.
SIGNIFICANC 2. Guidance on judicial interpretation -
E OF Natural law is considered a moral compass
for judges and laws should promote the
common good and respect for human
NATURAL dignity. Judicial decisions should refer to
natural law principles in certain matters to
ensure laws align with the fundamental
THEORY IN moral values.
3. Ethical perspective of Law - John Finnis
LEGAL argues that the legitimacy of legal systems
rests on their capacity to promote the
common good. In many societies, including
PHILOSOPHY Kenya, issues of corruption, governance, and
human rights are examined through the lens
of natural law principles, which call for
justice, fairness, and the protection of
human dignity.
4. Criticisms to Legal Positivism - John
Austin and H.LA. Hart, argue that law is
independent from morality. natural law
theory argues that law cannot be justified
without reference to morality e.g Nuremberg
Trials after WW II, natural law was invoked to
argue that the Nazi regime’s legal system,
although valid under German law at the
time, was fundamentally unjust and violated
universal moral principles.
THE ORIGIN AND DEVELOPMENT
OF THE NATURAL LAW THEORY
• Natural law theory, originating from ancient Greek and Roman philosophy,
asserts that law is derived from the natural order and human nature,
rather than from legislative acts. This theory, known as Jus naturalism,
claims that all people have inherent rights granted by God, nature, or reason,
independent of laws made by governments. It encompasses ethics, politics,
civil law, and religious morality.
• Pre-Socratic philosophers sought principles governing the cosmos and human
behaviour, and the concept of natural law was further developed by figures like
Aristotle and Cicero. In Christian thought, natural law was expanded during
the Middle Ages by philosophers such as Thomas Aquinas, who argued that
human reason, reflecting divine wisdom, grants each person fundamental and
inalienable rights.
THE REVIVAL OF NATURAL LAW IN
MODERN LEGAL THOUGHT
• 19th century- natural law declined due to utilitarianism and legal positivism.
• Late 19th century and 20th Century- revival of natural law as a response to the
limitations of classical natural law theories and positivist theory.
• Other reasons for revival included
Reaction against legal theories that emphasized the need for positive law theory
The positivist's theory failed to handle issues created by the new social conditions
The need to create a system that addressed philosophical, theological, and ethical
issues
Classical natural law theories were proscriptive and static.
• The key figures in the revival: - John Finnis and Lon Fuller
• He sought to answer the questions: -
a) how should one live?
b) how can we discover the answers to
ethical questions?
• He responded to these questions
through the provisions of basic goods
and practicable reasonableness.
• The basic goods include: - life,
John Finnis knowledge, play, aesthetic experience,
sociability, practical reasonableness,
and religion.
• Practical reasoning helps in identifying
the basic goods and in determining
what constitutes a good life.
• The ultimate purpose of law- to
promote the common good
He argued that law is inherently linked to morality and
emphasized on the eight principles that constitute the
morality of law.
The law must be expressed in general terms.
The law must be publicly promulgated.
The law must be prospective in effect.
The law must be expressed in understandable terms.
The law must be consistent with one another.
The law must not require conduct beyond the powers
of the affected party
Lon Fuller
The law must not be changed so frequently that the
subject cannot rely on them
The law must be administered in a manner consistent
with their working.
It was his belief that laws must not only be substantively
just, but also procedurally fair.
He argued that individuals in authority are not entirely free,
therefore, they must take into account the aspects of human
nature, the nature of society, and the resources available
Importance of natural law in modern legal thought- Human
Rights and the Universal Declaration of Human Rights
In the case of Citizen A v State of Nyasaland,
natural law theory challenges the constitutionality
of the law compelling a citizen to report suspicious
activities of his neighbor on the basis that, by the
CASE
precepts of natural law, as expounded by
philosophers such as Aquinas and John Finnis, laws
must conform to higher moral precepts, including
ANALYSIS: respect for privacy, and dignity in human persons.
The basic threat to these rights, combined with the
opportunity for possible abuse, hinges on the
CITIZEN A V ambiguity of Nyasaland’s law on the definition of
‘suspicious behavior,’and what constitutes to this
thus rendering its ethical basis questionable.
STATE OF The social contract theory, particularly Hobbes’
perspective, could justify the law as necessary for
NYASALAND maintaining order and security. However, natural
law emphasizes that any law must be backed by
citizens' consent and must serve the common good.
A law that threatens the privacy and trust among
individuals cannot be said to satisfy this threshold.
Furthermore, the idea of procedural fairness, as
explained by Lon Fuller, demands that laws be
public, clear, consistent and applied in a just
manner. The insufficient specificity present within
the Nyasaland law may result in arbitrary
enforcement and subsequent injustices, thereby
undermining its legitimacy.
Contemporary
relevance of natural
law theory in today's
legal systems
Introductio
n
• Natural law theory is crucial in modern legal systems, particularly in human
rights and ethical governance. It provides a moral and philosophical
foundation, supports universal human rights, informs international law
frameworks, and influences constitutional interpretation. Natural law is
used in jurisprudence, legal philosophy, and scholarship to analyze
discrepancies in law creation and application. Lon Fuller views natural law
as reason for a legal system.
Application of
natural law in legal
systems
• Natural law theory, linked to moral
objectivism, asserts that fundamental
principles govern human behavior and
justice, requiring laws to reflect these
principles. It guides law creation and
reform, and influences judicial decisions
to uphold universal human dignity and
justice.
Cont...
• Natural law is a system of norms guiding human
conduct, promoting essential human goods. It
bridges law and morality, aligning with universal
ethical standards to protect individual rights. Three
frameworks in domestic and international law are
closely tied to natural law: universal/human rights,
jus cogens norms, and constitutional law.
Universal Human rights and
Natural law
• Human rights frameworks are an extension of natural law theory, based on
the belief that all humans possess inherent rights due to their humanity.
These rights are universal, inalienable, and not dependent on state
recognition. Modern constitutions often frame rights like freedom from
torture, equality, and due process as natural rights, independent of positive
law.
Cont..
• The French Declaration and historical movements, such as the US Declaration
of Independence and the French Declaration of the Rights of Man,
emphasized individual rights and popular sovereignty. Olivecrona's natural
law theory, based on the inherent dignity of all human beings, underpins
international human rights instruments like the UDHR.
Cont..
• The natural rights theory, which declined in the 19th century, regained
popularity post-World War II, recognizing human rights as practical,
enforceable rights, and introducing limitations on individual and government
powers.
Jus Cogen Norms in
international law
• The Vienna Convention on the Law of Treaties (1969) defines jus cogens
norms as peremptory principles of justice, universally applicable and non-
negotiable. These norms prohibit genocide, slavery, torture, racial
discrimination, and crimes against humanity, embodying natural law concepts
of justice and transcending national legal systems.
Cont..
• The International Law Commission and Inter-American Court of Human Rights
have both recognized the importance of jus cogens norms in maintaining
global justice. The UN Convention Against Torture, a jus cogens norm, has
been expanded to include private acts, aligning with natural law principles.
This reinforces the influence of jus cogens on international legal obligations.
Constitutional law and
interpretation
• Maroń's book, References to Natural Law in the Constitutions of Modern
States, explores the Kenyan constitution, focusing on natural law philosophy.
The Kenyan constitution, based on articles 10 and 19, emphasizes inherent
dignity and inalienable rights, reflecting the universalist foundations of natural
law rights.
Cont
• The Kenyan Constitution, a key part of Kenya's democratic state, is based on
the Bill of Rights, which protects human rights and fundamental freedoms to
ensure social justice and the realization of human potential. The constitution
emphasizes human dignity, equality, and justice, guiding the nation's legal
framework. This natural law philosophy guides judicial interpretations and
legal reforms, ensuring constitutional rights and freedoms reflect universal
ethical standards.
The enduring Relevance of
Natural law
• Natural law theory remains relevant in addressing contemporary legal and
ethical challenges, providing a moral foundation for human rights and
protecting human dignity. Despite legal positivism dominating, natural law's
moral objectivism influences global law development, ensuring legal systems
align with justice, equality, and human dignity.
CONCLUSION
We seek to conclude that although the legal framework in Nyasaland ostensibly
seeks to enhance security, it does not meet the moral and ethical criteria
established by natural law theory. The violation of citizens' rights to privacy,
coupled with the likelihood of misuse in the absence of explicit guidelines,
renders the law unjust. Therefore, natural law theory considers that either this law
should undergo major amendment or should be ruled as unconstitutional in order
to ensure it aligns with the fundamental moral principles and protection of
individual human rights.
