Topic 1

CONTENTS OF THE
PRESENTATION
NATURAL THEORY OF LAW
 Introduction
 Definition
 Essential Features of Natural
Law
 Natural Law and Positive Law
 Historical Odyssey of Natural
Law
 Restatement of Natural Law
 Types of Natural Law
 Obedience to Unjust Law
1  Natural Law in Ugandan Law
OBJECTIVE
 At the end of this topic, you will be able to:
1. Demonstrate the historical origin of natural law;

2. Analyse the ancient and modern meanings of
natural law;
3. Compare and contrast the ancient and modern
history of natural law;
4. Demonstrate the propriety or otherwise of
obedience or disobedience to law; and
5. Assess natural law content in Ugandan law.
2
STARTER
 Are we naturally Good or Bad?
 Thomas Hobbes (1588-1679) in his book
Leviathan – life of man is “solitary, poor, nasty,
brutish and short”
 Jean Jacques Rousseau (1712-1778) – people are
born essentially good. If conditions are right
people will flourish and be morally good.
 Which is right??? Why?
3
REFLECT
 Are gay marriages immoral?
 Is racism wrong?
 Should the law permit abortion?
 Is it wrong to eat human being?
 Should torture be allowed?
 Should necessity be a defence for murder?
 Should war be allowed?
 Should the way we dress be regulated?
4
INTRODUCTION
 Moral questions routinely tug at the sleeve of our legal
and political practices, their persistence is perhaps one
of the hallmarks of a democratic, or at least an open,
society.
 These inquiries are not confined to the armchair of
philosophy: the vocabulary of ethics increasingly
infuses the language of international relations.
 To postulate an ‘axis of evil’ presupposes a normative
touchstone by which to judge the behaviour of states
that, since the establishment of the United Nations, is
partly embodied in an ever-growing cluster of
5
international declarations and conventions.
 The ubiquity of ethical problems has, of course,
preoccupied moral philosophers since Aristotle.
 The recent renaissance in natural law theory
represents an acknowledgement that we have, over
the centuries, come no closer to resolving these
awkward questions.
 Natural law theory is one of the most important
theories in the philosophy of Classical Realism.
 However, it is also widely misunderstood by many
either because they did not study it or have heard of it
and dismissed it as a "medieval" relic.
6  Before the overview of the nature of natural law
theory, let's take a brief look at some history.
 The concept of natural law has taken several forms:
 The idea began with the ancient Greeks' conception of
a universe governed in every particular by an eternal,
immutable law and in their distinction between what is
just by nature and just by convention.
 Stoicism provided the most complete classical
formulation of natural law.
 The Stoics arguments:
 that the universe is governed by reason, or rational
principle;
 that all humans have reason within them and can
7 therefore know and obey its law.
 that because human beings have the faculty of choice
(a free will), they will not necessarily obey the law;
 that if they act in accordance with reason, however,
they will be "following nature.”
 Christian philosophers readily adapted Stoic natural
law theory, identifying natural law with the law of God.
– For Thomas Aquinas, natural law is that part of the eternal law
of God ("the reason of divine wisdom") which is knowable by
human beings by means of their powers of reason.
 Human, or positive, law is the application of natural
law to particular social circumstances.
 Like the Stoics, Aquinas believed that a positive law
8 that violates natural law is not true law.
 With the secularization of society resulting from the
Renaissance and Reformation, natural law theory found
a new basis in human reason.
 The 17th century Dutch jurist Hugo Grotius believed that
humans by nature are not only reasonable but social.
 Thus the rules that are "natural" to them - those
dictated by reason alone are those which enable them
to live in harmony with one another.
 From this argument, by the way, Grotius developed the
first comprehensive theory of international law.
 Natural law theory eventually gave rise to a concept of
9 "natural rights."
 John Locke argued that human beings in the state of
nature are free and equal, yet insecure in their freedom.
 When they enter society they surrender only such rights
as are necessary for their security and for the common
good.
 Each individual retains fundamental prerogatives drawn
from natural law relating to the integrity of person and
property (natural rights).
 This natural rights theory provided a philosophical basis
for both the American and French revolutions.
– Thomas Jefferson used the natural law theory to
justify his trinity of "inalienable rights" which were
10 stated in the United States Declaration of
 During the 19th century natural law theory lost
influence as utilitarianism and Benthamism,
positivism, materialism, and the historical school
of jurisprudence became dominant.
 In the 20th century, however, natural law theory
has received new attention, partly in reaction to
the rise of totalitarianism and an increased interest
in human rights throughout the world.
 With this contemporary interest in mind, let's now
turn our attention to the natural law theory as
understood by the tradition of Classical Realism.
11
EXERCISE
 What is Natural Law?
12
DEFINITION
 What do we mean by "natural law"?
 In its simplest definition, natural law is that
"unwritten law" that is more or less the same for
everyone everywhere.
 It is the concept of a body of moral principles that
is common to all humankind and, as generally
posited, is recognizable by human reason alone.
 Natural law is therefore distinguished from -- and
provides a standard for -- positive law, the formal
13 legal enactments of a particular society.
 Since law must always be some dictate of reason,
natural law also will be some dictate of reason. In fact,
it is law discovered by human reason.
 Our normal and natural grasp of the natural law is
effected by reason, that is, by the thinking mind, and
in this service reason is sometimes called
"conscience."
 We, in all our human acts, inevitably see them in their
relation to the natural law, and we mentally pronounce
upon their agreement or disagreement with the
natural law.
 Such a pronouncement may be called a "judgment of
14
conscience."
 The "norm" of morality is the natural law as applied by
conscience.
 Lastly, natural law is the disposition of things as known by
our human reason and to which we must conform if we
are to realize our proper end or "good" as human beings.
 In summary, natural law:
 is not made by human beings;
 is based on the structure of reality itself;
 is the same for all human beings and at all times;
 is an unchanging rule or pattern which is there for human beings to
discover;
 is the naturally knowable moral law;
is a means by which human beings can rationally guide themselves
15 
to their good
 Everyone seems to have some knowledge of natural
law even before such knowledge is codified and
formalized.
 This is why many proponents of the natural law theory
say it is the law which is "written upon the hearts of
men."
Definition by Authors
 Lloyd – “natural law” has been variously applied by
different people at different times:
i. Ideals which guide legal development and administration;
ii. A basic moral quality in law which prevents a total
16 separation of the ‘is’ from the ‘ought’;
– That natural law argues that what ‘is’ the law is based on
a higher law dictated by reason and so is also what the
law ’ought’ to be.
– That natural law is thought to acquire a sanctity that puts
it beyond question.
– That despite it different doctrines, what has remained
constant is an assertion that there are principles of
natural law.
– Though views as to the content of these principles have
sometimes diverged but the essence of natural law may
be said to lie in the constant assertion that there are
objective moral principles which depend upon the nature
of the universe and which can be discovered by reason.
17 – These principles constitute the natural law.
 John Finnis - a theory of natural law claims to be
able to identify conditions and principles of
practical right-mindedness, of good and proper
order among men and in individual conduct.
 That natural law consists of two sets of principles:
i. certain basic values that are good for human

beings;
ii. the requirements of practical reasonableness.
. These values are known because they are self-
evident.
18
 Dias - natural law thinkers includes a moral element in
their conception of law since they think of it as an
indispensable factor in the continued existence and
functioning of law.
 Positivists exclude a moral element since they are
mindful of the necessity of having clear-cut means of
identifying laws for practical purposes of the present,
unclouded by impalpable moral considerations.
 Salmond - natural law is the idea that law consists of
rules in accordance with reason and nature.
– Ordinary human law is only truly law in so far as it
conforms to these principles. The principles of justice
19 and morality constitute the natural law.
– Man should live according to nature - that since the
distinctive feature of man’s nature was his
endowment with reason, man should live according to
the dictates of reason.
– Natural law is that branch of law that is variously
defined or described as the law of nature, higher law,
eternal law, divine law, etc.
 On natural law, the Roman orator, Cicero, said:
– “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
20 wrongdoing by its prohibitions.
– And it does not lay its commands or prohibitions upon
good men in vain, though neither have any effect on the
wicked.
– It is a sin to try to alter this law, nor is it allowable to
attempt to repeal any part of it, and it is impossible to
abolish it entirely.
– We cannot be freed from its obligations by senate or
people, and we need not look outside ourselves for an
expounder or interpreter of it.
– And there will not be different laws at Rome and at
Athens, or different laws now and in the future, but one
eternal and unchangeable law will be valid for all nations
and all times, and there will be one master and ruler,
21 that is, God, over us all, for he is the author of this law,
– Whoever is disobedient is fleeing from himself and
denying his human nature, and by reason of this very
fact he will suffer the worst penalties, even if he
escapes what is commonly considered punishment.
 Burlamqui in his Principles of Natural Law (1747):
– Natural law comprises rules which so necessarily agree
with the nature and state of man that, without
observing their maxims, the peace and happiness of
society can never be preserved ….
– They are called natural laws because a knowledge of
them may be attained merely by the light of reason,
from the act of their essential agreeableness with the
22 constitution of human nature:
– while, on the contrary, positive or revealed laws are
not founded upon the general constitution of human
nature but only upon the will of God: though in other
respects such law is established upon very good
reason and procures the advantage of those to whom
it is silent.
 Therefore, natural law theory offers or provides an
insurance against the chaos and disorder common
with the human society.
 Recall that in 1996, the ILC, a UN agency charged
with the responsibility of codifying and of
progressively developing international law released
23
the Draft Code of Crimes Against the Peace and
 The Code enumerated international crimes to include
aggression, genocide, crimes against humanity, crimes
against the UN and associated personnel, and war crimes.
 To Kelsen, in his What is Justice? (1957):
– The NL doctrine undertakes to supply a definitive solution
to the eternal problem of justice, to answer the question
as to what is right and wrong in the mutual relations of
men.
– The answer is based on the assumption that it is possible
to distinguish between human behaviour which is
unnatural, hence contrary to nature and forbidden by
nature … certain rules which provide an altogether
adequate prescription for human behaviour…
24 – Nature is conceived of as a legislator, the supreme
 Radbruch – a positivist – who witnessed the horror and
destruction wreaked by the German Reich on its
neighbours had to fall out with his first faith in preference
for natural law.
 In his Five Minutes of Legal Philosophy, he said (1945):
– There are principles of law that are stronger than any
statute, so that a law conflicting with these principles is
devoid of validity.
– One calls these principles the natural law or the law of
reason … the work of centuries has established a solid
core of them.
– Natural law could be synonymously called the law of
25 nature, divine law, eternal law, etc.

– Natural law theories are basically theological or
secular.
 Theological theories rely on allusion to God, the
Holy Books and the prophets, in arguing for the
existence or validity of natural law.
 These theories regard the universe as being
founded and ruled by some deity, God, etc.
 The creator has laid down rules and principles by
which the universe (including the earth inhabited
by human beings) is ordered and regulated.
 It is from these principles that the morals or
26 conscience of humanity derive.

– On the other hand, secular theories depend on human
reason (or will).
 They canvass the view that natural law exists in
rational human beings who are created by God.
 Because they are the creatures of God, they
possess the rational idea, the reasoning capacity to
know what is good and what is bad.
 They have the intellect even without the assistance
of another person to discover natural law or the
law of nature.
 Guided by the ensuing knowledge, he is able to
order his life, according to his choice, in a moral
27 way or in an immoral manner.
– In other words, secular theories demystify natural
law by detaching God therefrom, that is, by positing
that natural law will or can be independent of God.
Thus, on a rather extreme note, Hugo Grotius said
that there would be natural law even if there were
no God.
28
EXERCISE
 What are the essential features of Natural Law?
29
ESSENTIAL FEATURES OF NATURAL LAW
1. Natural law is universal, unchanging and everlasting;
2. That which is good is in accordance with nature but
that which is evil is contrary to nature. Therefore,
natural law is good;
3. There exists an order in nature which is rational and
which can be known by man;
4. There are absolute values, and ideals which validate
laws. A law lacking in moral validity is wrong and
unjust.
. On this basis, natural law invalidates certain
30 manifestations of the positive law and provides an
Some Analyses of the Features of Natural Law
1. Natural law as Universal, Unchanging and
Everlasting
. It is usually claimed to be universal, unchanging, and
everlasting.
. Looking at the major legal systems of the world, this
assertion can hardly be faulted – traces of it exist in
them irrespective of time, space and geography.
. Consider for example, the social contract theory.
– that citizens agreed to submit their rights to their
rulers in return for responsible and responsive
31 governance. It forms the basis of modern State
 Hardly any system of government in contemporary
world that is not founded upon democracy - any
exception is an aberration.
 Another e.g. – FHR - said to have pre-dated humanity.
 They are rights that appertain to a person by reason of
his being a person.
 HR regime guarantees or upholds the equality of all
before God and law, right to life, freedom of speech,
freedom from discrimination, etc. - Citizens cannot
barter them away.
 In IHRL, these are grouped into generations of rights,
32 domesticated or deemed to be operative in all States.
 Notwithstanding its universality, in different
civilizations, natural law has been a ready tool in the
hands of persons and systems of varied ideological
persuasions.
 Natural law has been used by democrats, liberals,
autocrats, dictators, etc. to advance their causes,
positive and negative to the common good of the
people.
 Prof. Alf Christian Ross (1899- 1979) in his On Law
and Justice, § 58 (p. 261) wrote:
– Like a harlot, natural law is at the disposal of
everyone. The ideology does not exist which cannot
33
be defined by an appeal to the law of nature.
– And, indeed, how can it be otherwise, since the
ultimate basis for every natural right lies in a private
direct insight, an evident contemplation, an intuition.
Cannot my intuition be just as good as yours?
 Natural law has been used to advance the freedom of
humanity; at the same time, it has been utilized to
perpetrate inequality or slavery. E.g. civilizations of
Egypt, Mesopotamia, China, India, Rome and Greece.
2. Good and Evil
. Natural law is usually associated with good. This is
predicated on the origin of nature or humanity.
. The almighty creator is good and in Him is no evil. He
34
is omnipotent and omniscient.
 In the fullness of these qualities, He designed the
universe (including humanity) in an orderly fashion for
the good of all.
 Operating within the scope of that design, harmonizes
with that order. Deviation therefrom means disorder or
rebellion.
 Hence, anything done consistently with the divine
design is good; anything contrary is bad or evil.
 Thus, man-made law that does not meet the
requirement of divine good is evil.
3. Man’s Comprehension of Nature
35 . As a creature of God, Man has some of His qualities.

 Some of these are intelligence and reasoning power.
 When God created man, He gave him the power of
intelligence and of reasoning.
 Rene Descartes says that to live according to reason
is to live naturally.
 Hence man is able to decipher what the divine is or
possibly is.
 To Aquinas, natural law represents man’s participation
in the cosmic order or universe with the aid of the
power God has put in man.
 We may call that capacity to participate in nature,
36 conscience.
 That small voice within us, telling us what is good and
what is not, and propelling us to do that which is good
and to reject that which is evil.
 However, what man ultimately does may not
necessarily be a reflection of this mental exercise:
why?
 Because man is also invested with the power of will or
of choice.
 Consequently, man can decide to, for eg. kill despite
his knowledge of its inconsistency with nature.
 Natural law is usually used synonymously with
37 morality. Where such morality coincides with natural
law, such synonymous usage is justified.
 Where, however, morality relates only to a person’s
social or ‘moral’ way of life, it should be understood as
such without necessarily attributing it to natural law.
4. Relationship Between Natural Law and Positive
Law
. The clash between natural law and positive law is
legendary.
. Natural law, essentially focuses on de lege feranda (the
law as it ought to be), a law whose existence is proved
by reference to transcendental, metaphysical,
idealistic, theological or rationalist arguments.
. Its adherents argue that natural law reflects the order
38 of nature and represents a blueprint for decent or
 Such order is superordinate or superior to positive law.
 Natural law is predicated on value judgements,
representing a standard against which the goodness or
otherwise of positive law is measured.
 Hence, for humanity to live in peace and harmony,
there is the need to live in accordance with the law of
nature.
 Under this, every human law that fails to measure up
to the moral standard set by natural law fails the test
of legal validity, hence unworthy of the name ‘law.’
 Conversely, positive law which fundamentally
39 concentrates on lex lata (the law as it is), is law made
by man.
 Proponents contend that this is law whose existence
can be proved scientifically, i.e. can be physically
observed, located and touched.
 In disclaiming the position of natural law, they accuse
natural law theorists of confusing the ‘is’ with the
‘ought.’
 This muddles up the system of thought.
 To Austin, the validity or legitimacy of the (positive)
law is one thing, its merit or demerit another.
 That positive law is concerned strictly with the validity
of the law.
40  Any discussion of its merit or demerit was not the
 If, however, moral philosophy is interested in that
subject, all well and good. But it must do well to
avoid confusing validity with propriety or otherwise
of the law.
 Prof. Hart stressed, there is no necessary
connection between law and morals.
 However, he did not deny that there are common
grounds or convergence between them
 Rather, that it is not a matter of course that law
must be connected to morals.
 Hence, there are wide areas of divergence between
41 law and morality.
EXERCISE
 In what ways is natural law different from positive law?
 How relevant is natural law to contemporary legal
order across the globe?
42
 Examples of areas of divergence:
1. Immanuel Kant - that the thrust of law is
external while morality is a matter of internal
conscience.
. Evident in inchoate offences e.g. the law of attempt
under the Penal Code.
2. Law is a product of conscious, formal procedure
in contrast with morality which is created
informally.
. Man-made law does not just emerge out of the blues
with the few exceptions of dictatorships/autocratic
43 systems.
.
 No such formalities in the making of morality.
 Morality is not made; it grows or emerges. Pre-existing
moral norms are handed down from generation to
generation until people find them unacceptable.
 Recall that natural law is everlasting and unchanging.
It has always been there, waiting to be discovered by
the intelligence or reasoning power of man.
3. Law prescribes right or wrong judgment but
natural law prescribes good conduct.
. The validity of law is confined only to the issue of
whether it is right to do one thing or wrong to do
44 another.
 E.g. The law that gives me the right to own acres of
land in a community of landless peasants is valid if it
was promulgated in accordance with the requirements
for such promulgation.
 However, under natural law or morality, this would be
bad or evil because one man possesses to the
detriment of many others. Therefore, such law would
be a bad law.
4. Law prescribes sanctions against violations,
while violation of natural law is not punishable
by man but by God or the creator.
. Moral sanction is of a different kind and guided more
45
by public opinion.
 For example, criminal law imposes on a parent a duty
of care towards his infant child but it does not similarly
obligate a non-parent.
 However, natural law/morality imposes equal duty of
care on both biological and non-biological parents.
46
EXERCISE
 What were the contributions of Greek heritage to the
development of natural law?
47
HISTORICAL ODYSSEY OF NATURAL LAW
 This looks at the processes natural law has gone through
in attaining its attributed status in contemporary times.
A. Early Origins
. In pre-modern societies there was a union of secular and
religious beliefs. Societies were believed or deemed to be
ruled or directed by gods or spirits.
. This developed the belief that there was a power beyond
human power, directing the affairs of the human society
with certain rules, principles or laws.
. Discovery of these laws ultimately enabled the human
society to access the divine good plans or intentions of
48 these spiritual forces for humankind.
 If human society tried well enough, it could
discover them.
 Put differently, in order for the human society to
experience cosmic order and harmony, it was
essential for it to harmonize its conduct with such
divine plans and intentions.
1. Graeco-Roman Heritage
. This belief system was boosted in Europe in the
classical era when the rise of Judeao-Christian
tradition saw monotheism replacing polytheism.
49
 To Chinhengo:
– this belief in one deity paved the way for the
definition of a singular purpose for the human
society with the law-giver providing basic
principles for human morality and law through
the scriptures and revelations of His prophets,
and demanding that societies rule themselves
on the basis of these principles under the
rulership of kings who had the right to do so as
of divine right.
 However, the Greek system of belief, based on
50 polytheism, had contrary view of natural law.
 Parallel to the spiritual/religious coloration, the Greeks
developed the idea of rationalism.
 Rationalism holds that the universe, being governed by
intelligible laws, was capable of being understood by the
human mind.
 From such rationality, it was possible to derive rational
principles that could be put to use in the governance of
human conduct in the society.
 Socrates (470-399 BC) and Plato (428-348 BC) asserted
that there were principles of morality which were
discoverable through the processes of reasoning.
 Plato further developed the idea of justice as an end in
51 itself having qualities of truth and reality higher than
 Aristotle (384- 322 BC) saw nature as the capacity for
development inherent in particular things and aimed
at a particular end.
 The Stoics, who taught the development of self-
control and fortitude as means of overcoming
destructive emotions, identified nature with reason:
– That reason governs all parts of the universe and that
human beings were equally governed by reason.
– That people live ‘naturally’ when they conduct their lives
in accordance with reason.
 Cicero agreed and asserted that nature provides rules
by which the human society ought to live and that
52 these rules were discoverable through reason.
 In ancient Greece, the belief flowered that natural law
was metaphysical, transcendental, and independent of
the will of the individual.
 Sophocles (496 BC-406 BC) in Antigone describes
natural law as the unwritten and unfailing statutes of
heaven.
 The Greeks distinguished between logos (laws of
heaven) and nomos (man-made laws).
 Where both are harmonized or, where nomos harmonizes
with logos, there will be cosmic harmony, a condition in
which everything functions efficiently.
 When there is disconnection, there will be chaos or
53 anarchy and redressing this would entail going back to
 Hence, the destiny of the Greek society was tied to the
apron string of heavens.
 The polis (City State), or civil society, was to be
organized in a way consistent with the cosmic order.
 Socrates was of the view that the laws of the polis
were a reflection of natural law. That natural law was
each doing what pertains to his nature.
 Socrates was condemned to death because he taught
young people normal ideas.
 He exhibited the height of his morality when he
resisted moves by his loyalists to escape because this
54 escape would be unjust. He drank the hemlock and
died.
 Plato (427-347 BC), a student of Socrates, maintained,
that society will be peaceful and orderly if only those well
trained take over the reins of governance.
 In other words, persons endowed with intellectual
superiority are exclusively those entitled to rule.
 His proposition is that a person who has gone through
the process of good, seasoned training should aspire to
leadership position.
 Compare this with contemporary developments
 Democracy – majority rule even if uneducated.
 He further maintained like Socrates, that each man was
to do what ethically pertains to him. E.g. a slave cannot
55 be master.
 Plato upheld the legitimacy of inequality or slavery.
 Aristotle, a student of Plato, in his Nichomachean
Ethics, defined justice as treating equals equally and
unequals unequally.
 He identified some types of justice such as natural
justice, conventional justice, commutative justice,
corrective justice and distributive justice.
 He also accepted the naturalness of slavery.
 Pythagoras (580 – 500 BC) on justice, said, equality
was tantamount to justice.
 Thus, the reward or punishment of human action should
be proportional to his degree of his goodness or
56
badness.
 He defined justice in mathematical terms: Justice is like
a square number. It gives the same for the same and
thus is the same multiplied by the same.
 The morale of this mathematical conceptualization is
proportionality.
– When a person damages the property of another, he
has to make it good through restitutio in integrum or
restore the victim to the condition in which he would
have been had the wrongful conduct not occurred.
57
2. Roman Heritage
. Roman law, (jus civile), was classified into three types:
i. res (law of things);

ii. actio (law of action); and
iii. persona (law of persons).
. Note that only a Roman citizen had full capacity to
possess right and to create obligations.
. The head of the Roman family (pacta familia) had full
contractual capacity.
. The wife, or a woman, had diminished capacity.
. Women, slaves, infants and persons of unsound mind
58 lacked capacity.
 Jus civile was applicable between citizens of Rome only.
 Society expansion and increased interactions with the
outside world necessitated devising a system of law
applicable to non-citizens.
 This led to the emergence of jus gentium.
 A law developed by Rome to apply to foreigners, or to
transactions between Romans and non-Romans.
 Jus gentium is the crystallization of natural law and the
beginning of international law.
 The Justinian Code was the first code produced by juris
consult (commissioned by Emperor Justina) to apply to
59 all irrespective of race, creed, status, and nationality.
 One of the leading lights of this era was Cicero, the
Roman orator.
 He described natural law as:
– true law as 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.
 Note, however, that Rome was also a slave owning
society. Consequently, natural law in Rome
accommodated a world of slavery or inequality.
60
 Note also that Greek and Roman civilizations were just
some of the many civilizations that contributed to the
development of jurisprudence generally and natural law
particularly.
 Hence, shutting out other civilizations from the radar of
discourse smacks of Euro centricism and narrow-
mindedness.
 Thus, according to Prof. Oyebode, civilizations such as
Egypt, India, China and Mesopotamia (now Iraq) stamped
their feet on the canvas of natural law.
B. Scholastic Period (1100 – 1400)
. This was the Medieval Period in Europe that witnessed the
61 theological rendition of natural law especially by St
 With the Catholic Church leading the system of thought,
the period saw the integration of rationalist and religious
approaches to natural law through the seminal work of St.
Thomas Aquinas.
 St. Augustine (354 – 430) believed that our earthly
existence has been irredeemably tainted with the original
sin.
– He distinguished between the City of God and the
City of man.
– While the City of God refers to doing the will of God,
the City of man symbolizes a life of sin.
– He categorized law into three groups: lex temporalis,
62 lex naturalis, and lex aeterna.
 St. Aquinas divided law into four groups as follows:
eternal law, divine law, natural law and human law.
– According to him, law must be for the common good,
and just.
– Where, however, such law is unjust, it was unworthy
of being called a law. Thus, the saying lex injusta
non est lex (an unjust law is no law).
C. Secularization of Natural Law
. Under the influence of Reformation or Renaissance in
Europe, the religious clout of the Roman Catholic Church
waned.
. The direct implication of this was the Catholic Church’s
63 loss of monopoly of thought. Protestant theories bloomed.
 Their main remit was to develop the theory of
natural law independent of the explanation paraded
by the Papacy.
 One of the secular natural law theorists, Hugo
Grotius – Dutchman and jurist – separated natural
law from its theological foundation.
 He insisted that natural law was independent of
divine law or command, and emphasizing that
natural law was derivable from human reason or
intellect.
 He even asserted that natural law would exist even
64 where there was no God.
EXERCISE
 Discuss the background to the decline and rebirth of
natural law.
65
D. Decline of Natural Law
. The influence of natural law decreased in the 18 th and 19th
centuries.
. The cause was the emphasis on scientific approach to
learning, an approach that favoured rationalist and
secularist perspectives to the study of human phenomena
. There was an increasing assault on natural law for its
reliance on metaphysics and idealism.
. For example, David Hume (1711-1776) criticized natural
law for attempting to derive an ‘ought’ from an ‘is.’
. The fall of natural law incidentally saw the rise of
positivism with the likes of Austin and Bentham insisting
66 on the separation between positive law and morality.
E. Rebirth of Natural Law
. The 20th century witnessed a revival or rebirth of
natural law doctrines. Why?
. Because of a combination of factors, representing the
failure, weakness or excesses of positivist doctrines.
. We shall consider some of these briefly:
i. Horror of Second World War (1939-1945)

. Prosecuted under the inspiration of extreme positivism
where Nazi Germany deified the State and where Hitler
became the uncommanded commander to whom
obedience was compulsorily offered.
67
 Hence, no surprise that the war exterminated six
million Jews.
 The horror of the war pushed the international
community from its blankness.
 The Preamble to the UNC provides, in part, that:
– The UN was determined to save succeeding generations from
the scourge of war, which twice in our lifetime has brought
untold sorrow to mankind.
 Coming on the repairs of the adoption of the UN
Charter was the UDHR, 1948, ICCPR and ICESCR, 1966
 Since 1945, the rebirth of natural law has manifested in
a glut of human rights instruments at both international
68 and regional levels and in domestic legal systems.
 The recurrent refrain in all these instruments and laws
is the protection of human rights of persons and the
restraint of the freedom of action of States.
 In other words, the natural law regime has succeeded
in institutionalizing a bulwark against the excesses of
positivism in the governance of peoples across the
globe.
ii. Human Rights Violations
. This is allied to the observation made on the 2nd WW.
. Prior to 1945, human rights were the reserve domain of
each sovereign State.
. It was the norm for States to disregard or suppress the
69
human rights of its citizens and other people. No
 Thus Germany felt insulted when the LN sought to
know why it was maltreating its Jewish minority, and
terminated its membership in 1933.
 But since 1945, the tide has turned against violators.
 There are now legal instruments and mechanisms for
the enforcement of human rights.
iii. Scientific Excesses
. The necessity for the revival of natural law has come
into sharper focus with the excesses that accompanied
scientific progress and advance.
. Science has come to ease the hardship hitherto
70 experienced by humanity in daily existence.

 It is a welcome development. However, instances
abound where pursuit of scientific inquiry has been
geared towards harming human race. Examples?
 Such as developing biological and chemical
weapons, weapons of mass destruction, etc.
 Recall that US invasion of Iraq in 2003 was
predicated on the search for weapons of mass
destruction.
 The recent face-off between Iran and the
international community or the critical members of
the international community is because of suspicion
71 that Iran is developing atomic weapons.
Which other issues revived natural law?
 Human cloning (remember dolly – sheep – the first
cloned mammal born in 1996);
 Homosexuality;
 Lesbianism;
 Same-sex marriage;
 Euthanasia, etc.
72
Restatement of Natural Law
 This relates to the natural law discourse by modern
natural law theorists, for example, John Finnis (1940
- ).
 Finnis, a British lawyer and philosopher was desirous
of investigating the utility of natural law in
contemporary society.
– To Finnis, natural law is a set of principles of practical
reasonableness to be utilized in ordering human life and
human community in the process of creating optimal
conditions for humans to attain the objective goods.
 Finnis’ restatement proceeds from a denial of the
73 criticism of positivists that natural law theorists seek to
 He de-emphasized the metaphysical character of
natural law, perhaps, due to severe criticisms from
positivists.
 The modern natural lawyers focus on the common
good without which the society will be in disarray.
 To Finnis, the normative conclusion of natural
lawyers was not based on the observation of human
behaviour or nature but from the reflective grasp of
what is evidently good for all human beings.
 He contends that objective knowledge of what is
good is possible owing to the existence of objective
74 goods which he calls ‘basic forms of human
 He enumerated such objective goods to include life,
knowledge, play, aesthetic experience, friendship or
sociability, practical reasonableness, and religion.
 Finnis believes they are irreducibly basic.
75
EXERCISE
 The category of natural law is not closed. Do you
agree?
76
TYPES OF NATURAL LAW
 Thomas Aquinas (1224 – 1274) identified four kinds
of law: Eternal Law; Natural Law; Divine Law; and
Human Law.
a. Eternal Law (Lex aeterna)
. This is law that is known only to God though some
blessed select few may perceive it.
. Through it God rationally directs all creatures. All
creatures are ruled by the law.
. But note that the implication of man’s possession of
free will is his capacity to disobey or to act contrary to
77 this law.
b) Divine Law (Lex divina)
. This is the law revealed in the scriptures.
. It comes in handy when law discovered by human
reason fails. i.e. it clears doubts in the mind of man
as to the law of nature.
. By doing this, it provides a guide for human reason.
Complementarily, this law can be revealed to a
select few – the prophets.
. In the Bible, for example, God revealed certain laws
or rules of conduct to the people of Israel through
such prophets as Isaiah, Jeremiah, Ezekiel, etc.
78
c) Natural law (Lex naturalis)
. It is the law that manifests man’s participation in the
workings of the cosmic law or the law governing the
whole of the universe through the medium of reason.
. It is that small, still voice in a man’s heart, the
conscience, the ‘small god’ which exposes the
difference between good and evil, and encourages
one to do the former and to refrain from the latter.
. Thus, because natural law exists in every man,
‘whatever is a means of preserving human life and
warding off its obstacles belongs to the natural law.’
79 . For e.g. self-preservation is natural law.
 Also Since everyone shuns ignorance, the search for
knowledge is natural law.
d) Human (Lex humana)
. This is law made by man, otherwise called positive law. It
involves particular uses of the natural law.
. Since natural law is man’s participation in eternal law,
amidst such participation, man enacts positive law for the
governance of man and things.
. Such positive law may or may not conform to the law of God
or natural law.
. Where it conforms, it is said to harmonize with the divine will
of the creator or with the law of reason.
. Where it does not, it is said to fail the test of natural law. In
80 the extreme of cases, it may even be denied legal validity.
EXERCISE
 What is meant by the statement that an unjust law is
no law?
 In Uganda, every citizen is at liberty to disobey an
unjust law? Do you agree?
81
OBEDIENCE TO UNJUST LAW
 In the family of natural law, law is either just or
unjust.
 To Aquinas, a just law has three features:
i. It must harmonize with the dictates of natural law,

or ‘ordered to the common good;’
ii. The law giver has not exceeded his authority; and
iii. The law’s burdens are imposed on citizens fairly.
. However, where a law fails any of the three criteria,
it is unjust.
. A law may be unjust when it is contrary to human
82
 An example is autocratic laws that violate or
undermine basic human rights of citizens.
 Also, an unjust law is a law which is contrary to the
divine good such as the law of a dictator forbidding
the worship of the God, or abolishing freedom of
worship.
 Unjust laws are generally not binding on men. They
are binding only in conscience.
 But what does this imply for the purposes of
obedience and law enforcement?
 It is commonly said that such law does not warrant
83 or command obedience.
 Such understanding is captured by the Latin phrase lex
injusta non est lex (“an unjust law is no law”).
 The implication of this is that the addressees of the law
in question are not duty-bound to obey it.
 Because of the grave consequences of the failure of the
people to obey a law, there is need to clarify the scope
of this call to disobedience.
 To Bix, Aquinas did not use this phrase. All he said was
that any law that conflicts with the law of nature was a
perversion of law.
 And Augustine is claimed to have said that an unjust
84 law seems not to be law.
 Other philosophers such as Plato, Aristotle, Cicero, and
St. Augustine are generally believed not to have made
such a general statement.
 Bix, offers a more reasonable interpretation of the
phrase by saying that it means the unjust law is not law
‘in the fullest sense.’
 That there are times when, because we are dissatisfied
with the service by a supposed professional man, we
tend to deny his professionalism though he has actually
got formal, requisite qualification.
 Hence when it is said an unjust law is no law, it is not
really to deny its validity but to state or protest its
85
failure to have the same moral force as natural law.
 Recall that Hegel’s mystical theory asserts the moral
superiority of the State over the individual.
 Hegel recognizes that the individual could claim no
higher right than to obey the law of the State of which
he forms an insignificant part.
 That the State is the ultimate embodiment of morality,
hence, obedience to the State is the highest form of
morality.
 Remember the polytheistic Greek tradition of belief in
many gods. Amidst this belief system, there was bound
to be conflict between positive law and moral law.
86  Where that happens, obedience was to go to positive
law.
 Plato’s Crito (featuring a conversation between Crito and
Socrates) graphically represents Greek elevation of
positive law over natural law.
 Note, Socrates was sentenced to death. He was convinced
of the wrongness of the sentence and was even given the
opportunity to escape. But he refused, preferring to suffer
death penalty under the patently unjust positive law.
 According to Socrates, the only consolation for the victim
in his shoes is to persuade the State to reform or change
the law.
 Note also the assertion of Thomas Hobbes that law is to
be obeyed, even when unjust because the alternative is
87 the chaos of the state of nature, of war of all against all.
 Note again that Aquinas stated that a citizen is not
bound to obey an unjust law if the law ‘can be resisted
without scandal or greater harm.’
 In other words, such law may be obeyed ‘in order to
avoid scandal or disturbance for which cause a man
may even yield his right.’
 Thus, Socrates submitted to death penalty (by
drinking hemlock) probably he reckoned that his
disobedience would adversely affect the society of his
day.
 This, indeed, is an important qualification to the
general assertion or call to disobedience.
88  What it means is that disobeying the law must not be a
 It is another way of saying that if such disobedience will
breach the peace or cause disorder or disaffection, then
it is inadvisable to have recourse to it.
 That such disobedience is unnecessary where it would
cause greater harm or evil than the unjust law.
 The morale here, is for the addressees of unjust law to
endure it.
 John Finnis asserts that the individual may exercise
his right to discount unjust laws.
 However, he interpreted lex injusta non est lex as
suggesting that an unjust law, though formally valid,
89 does not meet the demands of natural law.
 Note that the proposition that citizens should,
nevertheless, obey an unjust law is consistent with
practice across the globe.
 There are so many laws which citizens may have good
reason to consider offensive to the moral conscience,
yet no immediate choice but to obey hoping, as
Socrates advised, that law makers would be aroused to
the consciousness of the unjustness of the law, and
carry out requisite reforms.
90
EXERCISE
 Examine the statement that there is no natural law
content in Ugandan Law
91
NATURAL LAW IN UGANDAN LAW
 There are so many laws which citizens may have good
reason to consider offensive to the moral conscience,
yet no immediate choice but to obey hoping, as
Socrates advised, that law makers would be aroused to
the consciousness of the unjustness of the law, and
carry out requisite reforms.
i. Social Contract
. To vindicate that natural law is universal, there are
several layers of natural law in most, if not all, legal
systems including the Ugandan legal system.
. The Constitution clearly demonstrated this.
92
 Social contract is what was accepted as the basis upon
which a person or group of persons could exercise
political power over the other members of a political
organization.
 It is a contract, or assumed to be so, between the rulers
and the ruled.
 The underlying implication is that no authority can
impose itself on the people in a manner inconsistent
with the dictates of the social contract.
ii. Separation of powers
. Another trace of natural law is separation of powers.
93 . To John Locke and Montesquieu, the doctrine is that:

a) The same persons should not be part and parcel of more
than one of the three arms of government;
b) An arm of government should not interfere in the affairs
of any other two arms of government; and
c) One arm of government should not exercise the functions
of another arm.
. The functions of each are clearly defined and set out in
the Constitution and any action taken or to be taken by
each arm must be in accordance with the Constitution.
iii. Sovereignty
. Sovereignty originally propounded by Bodin belonged to
the State and, most important, to the symbol of the State
94 such as the head of State, president, prime minister, etc.
 However, in its modern rendition, sovereignty now
belongs to the people.
 For example, Ugandan Constitution declares
sovereignty to belong to the people of Uganda from
whom government through the Constitution derives all
its powers and authority.
 Note that this perspective is consistent with modern
international law where the sovereign’s sovereignty has
been displaced by people’s sovereignty.
iv. Fundamental Human Rights
. In addition to States’ subscription to international
human rights instruments, domestic legal systems
95 equally have a pride of place for human rights norms.
 Note, however, that there is no absolute right without
corresponding duty.
 Also note the provision of compulsory acquisition of
property which is a manifestation of the privilege of
public interests over individual interests.
 Finally, note the provision which permits derogation
from all the rights in the interest of defence, public
safety, public order, public morality, public health or for
the purpose of protecting the rights and freedom of
other persons.
96
CRITIQUE OF NATURAL LAW DOCTRINE
 The doctrine of natural law has been criticized for
several reasons including the following:
i. Reliance on Metaphysical Validation
. Natural law is a law built around idealism. Knowledge is
acquired by means of metaphysical or transcendental
inquiry.
. In the Age of Science, or Renaissance, many
philosophers severely criticised the natural law doctrine
for its inability to prove or demonstrate the truth of its
claims.
. Hence, natural law was condemned for its unscientific
97
methodology.
 For e.g., David Hume said - natural law is real only in
the sense that some individuals entertain the feeling
that it exists.
– He believed it was a figment of the imagination of fertile
minds.
– He contended that its truths cannot be asserted or
demonstrated meaningfully, and concluded that it
attempts to derive an ‘ought’ from an ‘is.’
 Natural law was not also spared by the proponent of
utilitarianism, Jeremy Bentham.
– He developed his theory upon the pedestal of
denigrated natural law.
98
– He had described natural law as nothing but a
phrase and natural rights as nonsense upon stilts.
– He had argued, inter alia, that the spread of natural
law would undermine the fabric of sovereignty and
fan the embers of rebellion.
ii. Proviso to Universality
. Danish jurist, Alf Ross (1899-1979) mounted a virulent
attack on natural law doctrine in his On Law and Justice
(1958).
. According to him, the metaphysical speculation
underlying natural law is totally beyond the reach of
99 verification.
 He maintained that the doctrines of natural law are
neither eternal nor immutable.
 To him, natural law has been utilized to defend every
conceivable kind of demand, slavery and fraternity.
 It is in this light that Friedmann notes that ‘natural law
has at different times been used to support almost any
ideology’.
 Lastly, Ross argued that the metaphysical postulates of
natural law are no more than ‘constructions to buttress
emotional attitudes and the fulfilment of certain needs.’
iii. Diversity of Moral Opinions
. We have said that natural law represents man’s
10 participation or share in the workings of the universe with
 We asserted that natural law is that small, still voice
in a man’s heart, the conscience, the ‘small god’ of a
man.
 However, we realize the fact that man is different
from man. Because one person’s background, status,
belief system, etc, is different from another’s, their
appreciation of or participation in natural law is
bound to be different.
 Therefore, there is no oneness of natural law. In
other words, there is no unity within the family of
natural law.
101  It is more or less a divided house since consensus is

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CONTENTS OF THE

1. Demonstrate the historical origin of natural law;

i. certain basic values that are good for human

25 nature, divine law, eternal law, etc.

26 conscience of humanity derive.

35 . As a creature of God, Man has some of His qualities.

i. res (law of things);

i. Horror of Second World War (1939-1945)

70 experienced by humanity in daily existence.

i. It must harmonize with the dictates of natural law,

93 . To John Locke and Montesquieu, the doctrine is that:

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