Rather than a law based on human authority, natural law represents an idea for a law that has a binding and legitimizing effect upon (positive) human law. Natural law claims unconditional applicability for every state authority and for each individual. We shall begin this section by taking a look at two typical dictionary definitions:

Natural law (I) (lateinisch jus naturale), a law which, in law philosophy, is regarded as being above state and positive law and which is not based on the making or forming of human law and in certain circumstances can stand in contradiction to state laws (true law, natural law).

(...) Natural law was considered as (...) a law of common wisdom in classical philosophy, and then again in modern times (renaissance, baroque and enlightenment). Natural law gained special academic status and claimed to be the philosophy of law. It also provided the basis for large legal systems (Grotius, Pufendorf), the basis for the theory surrounding the contract of the state and society and with it of the constitutional state, the basis for humanization of criminal law (abolishing witch trials and torture) as well as the basis for the positivization of human rights and for the liberal state.

(...) Misuse of positive law during the 20th century led to a revival of philosophical anthropology following 1945 and with it to a "return of natural law".

[Taken and translated from Bertelsmann Discovery Lexikon]

Natural law (II): The totality of all rights with which each human being is born, founded in his/her nature. Each person possesses to the same degree the same natural laws (i.e. the right to life and physical intactness or to personal freedom) regardless of sex, age, position in society, time, location and state system. Natural laws come before and are above state laws and therefore irrevocable, "eternal" laws; they are different from historically changing legal standards made in law and by the state, meaning they are different from positive law and claim a higher quality than this.
The roots to the idea of a natural law can be found in Ancient philosophy; natural law is contained within the philosophy of several sophists (5 and 4 BC), is considered by Plato (427-347 BC) and Aristotle (384-322 BC), was shaped by stoa philosophy (from 3 BC) and developed further by its Greek and Roman followers, as well as by Cicero (106-43 BC), Seneca (approx. 4 BC - 65 AD) and Epiktet (approx. 50-138).
In Christian philosophy and theology during the middle ages, especially from Thomas von Aquin (1225-74) and other scholastics, natural laws were regarded as a flowing out of God's law active in the individual.

Natural laws first gained political meaning during the age of enlightenment (17/18th century). Theories on natural laws as laws based on the reasonable nature of man (laws of common wisdom) developed by J. Althusius (1557-1638) and H. Grotius (1583-1645), and built upon by S. Pufendorf (1632-94), Chr. Thomasius (1655-1728), Chr. Wolff (1679-1754), J. J. Rousseau (1712-78), I. Kant (1724-1804) and others served as the philosophical basis for the French Revolution (1789) and other civil revolutions during the 18 and 19th centuries and became a tool for the middle classes in their fight against the feudal system (feudalism) and the absolute state (absolutism) and for the constitutional state. Natural laws became embodied in the basic human and civil laws on which the modern constitutional state is based.

[Taken and translated from: Beck, Reinhard: Sachwörterbuch der Politik, Kröner Verlag, Stuttgart 1986, S. 637]

Clearly, human rights stem from this tradition. The rationalist and enlightening form of natural law teaching reached its peak during the 17 and 18th centuries. During the 19th century it was the countermovement of positivism, based on the belief that positive (written) law alone is valid regardless of what it says, that dominated. Despite good reasons behind both ways of thinking, dangers are contained in both positions. Here is a comparison of the two positions:

[An graphical presentation of this comparison is available in an illustration prepared for the advanced subject of natural law]

Extreme case scenarios, which envisaged the passing of "perverse" laws, were regarded by positivism as being purely hypothetical during the 19th century. Despite such thinking, this very scenario came about in the totalitarian and fascist dictatorships of the 20th century. It was these developments that brought about a re-evaluation of the situation following the Second World War and a return to natural law. Within the framework provided by the United Nations, an attempt was made at positivizing natural law in the form of human rights. This meant that the idea about the existence of overriding laws was firmly recognized, but this time an attempt was made at putting them down in writing and making them binding for all people.

This development represents a compromise between the two extreme positions outlined above: Of course, that which is written in law has primary importance, but blind following of the law must be avoided at all costs. Individuals have the responsibility not to abide by laws that are unjust. The definition of "unjust" can be found in the internationally recognized documents on the subject and in particular in the "Universal declaration of human rights".

[Materials for this advanced subject: Natural law illustration]

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