In thousands of years of western legal thoughts, the name "natural law" has been used by different people at different times and for different purposes, and its fate is extremely tortuous: it was once worshipped as absolute truth and the ultimate standard for judging the right and wrong of existing laws (positive laws), enthusiastically defended, or regarded as the banner of revolution. This is a long story, from ancient Greek philosophy, ancient Roman law, medieval theology to the Enlightenment. It was once regarded as nonsense, mercilessly ridiculed and violently attacked, and was ridiculed by Bentham (1748- 1832) as "nonsense in high fever", which was mainly caused by the rampant positivism and utilitarianism in legal analysis in the19th century. In the 20th century, the once declining natural law began to revive, especially after World War II, the concepts of natural law and natural rights re-entered people's minds, occupied an important position in legal theory, and greatly influenced legal practice.
The historical fate of natural law shows that as long as human beings still have the ability of self-reflection, they still need to ask the rationality of the existing legal system and try to reform the status quo to create a better society, so they can't avoid the problems of natural law. As Henry Maine (1822- 1888) pointed out: "If there is no natural law, it is hard to say which direction the history of thought will develop" [1]. Or in the words of Kirk (O.F. von Giercke,1841-1921), that is, "the immortal spirit of natural law can never be extinguished. If it is not allowed to touch the body of the positive law, it will float around the room like a ghost and threaten to become a vampire to suck the blood of the body of the law. " [②]
Throughout the changes in the meaning of the concept of natural law from ancient times to the present, one thing remains unchanged: as opposed to positive law, there are some basic principles that are higher than and bound by positive law. Therefore, this paper will admit that there is a legal thought (from providence, morality or human rights) that is higher than the basic principles of positive law. ), these are called natural law, as the basis for discussing the rise of natural law thought.
First, ancient natural law
The traditional foundation of contemporary natural law is mainly the concept of natural law advocated by modern enlightenment thinkers in 17 and 18 centuries (called classical natural law), which comes from ancient and medieval natural law thoughts.
The original intention of ancient natural law obviously came from the ancient Greeks' understanding of nature, which believed that nature was inviolable. Natural law was a law reflecting the order of natural existence and the basis of law and justice. This is an outstanding contribution of ancient Greeks to western legal thought, represented by Aristotle, an early wise man (384-322 BC) and Stoicism in the later period. The ancient Romans' concept of natural law developed from Stoicism, emphasizing that natural law is justice, which occurred before human law (civil law and civil law) and was endowed by natural reason to all mankind. It is the most fundamental law and the only standard to measure all human laws, and human laws should be based on natural laws. Cicero (BC 106-43) and other famous jurists in the classical Roman period were represented in the early stage, and seneca (BC 4-65) was represented in the later stage.
The concept of "natural law" by ancient Greek thinkers originated from the analysis of "nature" by wise men. Almost all early philosophers took "On Nature" as the title of their works, and used natural things or laws to explain human environment and social life. Here, "nature" means "like yourself forever". A school of wise men thinks that everyone is square-headed and round-brained, and naturally requires everyone to be equal. The difference between people lies only in the system, and it is man-made laws that cause such consequences. Therefore, the existing racial discrimination, slavery and its laws are against natural humanity. Alsi Das asserted: "Great God has set all mankind free, and nature has never forced anyone to become a slave." Heraclitus (about 540 BC-470 BC) regarded law as "God's law" and demanded that the laws made by human beings obey God's laws. There are also some wise men who are passive and think that people should not be led astray by the law, but should only act according to their own natural impulses (nature), that is, they should not act according to artificial laws, but should act according to higher natural laws. It can be seen that the wise man's criticism of the existing legal system requires obedience to higher principles outside the existing legal system, which is a valuable source of natural law in later generations.
Later Socrates (470-399 BC), Plato (about 427-347 BC), Aristotle and others all thought that there were some unchanging standards that dominated positive law, and asserted that these standards could be found through rational operation. In particular, Aristotle clearly divided the law into natural law and personal law, and thought that natural law is a law reflecting the natural order, which is universal and permanent, higher than personal law with variable content and is the basis for the formulation of personal law.
The representative of the late Greek natural law thought is mainly the Stoic school, who defined human nature as rationality and thought that rationality is a universal force, and people of different countries or races have the same sacred rationality (the ideological source of egalitarianism and cosmopolitanism). Therefore, they believe that there is a natural law based on reason that is effective in the whole universe. Natural law is rational law, not the law of any specific country, nor is it formulated or compiled by individual legislators. Instead, it is the norm that urban laws and customs should follow. Most Stoic scholars tend to alienate the existing politics, pursue the nature, and live an ascetic life according to reason and morality.
Through the communication between the later Stoic figures and Roman jurists, the thought of natural law was introduced into Rome, which promoted the formation of Roman law concept and led to the rise of Roman moral philosophy. Cicero was a representative figure in the early period of natural law thought in ancient Rome. He is a politician and a legal reformer who has made great contributions to natural law. "The theory of natural law has undergone fundamental changes, the natural law of philosophy has changed into the natural law of law, and the world view of legal philosophy has developed into the world view of law" [3]. Cicero thinks that natural law is real law, which is irrevocable and eternal. He said: "Positive law is a natural justification; It is universal and practical, unchangeable and eternal ... It is evil to try to change this law, and it is unacceptable to try to abolish some of them, but it is impossible to abolish it completely ... There is only an unchangeable law, and any nation must respect it at all times; Humans have only one master and ruler, and this is God, because he is the maker, promulgator and executive judge of this law. " [4] In Cicero's view, the stupidest idea is to believe that the content of a country's laws or customs is just, and completely unjust laws do not have the nature of law. Therefore, natural law is superior to all laws formulated by the state, is the highest law, and is the only standard to measure all personal laws (civil law and civil law). Personal laws should be based on natural law.
Seneca is a representative figure of natural law in late Rome. He is not interested in issues related to the political system, which is different from Cicero. In natural law, Seneca sees not a useful standard of political reform and legal creation, but a set of moral laws and regulations, and should coordinate society with the relationship between morality and religion rather than politics and law. In Seneca's view, the state is at most a necessary evil, and it is not good in itself. What human beings should seek is the noble morality and courage endowed by nature. With it, we can silently endure everything endowed by fate. Here, Seneca's natural law became a philosophy of liberation and salvation, and it was integrated into the torrent of religious movements at that time, which contributed to the rise and spread of Christian thought. On the other hand, Christianity became the basis of almost all thoughts in the Middle Ages.
Second, the natural law of the Middle Ages
Thomas Aquinas (1227- 1274) is a representative figure of natural law in the middle ages. He integrated Augustine's (354-430) theological legal thought and Aristotle's naturalistic natural law thought, and put forward the theological natural law theory, holding that natural law is the eternal law of rational man to God (the rational expression of God).
The natural law thought in the Middle Ages was based on Augustine's church philosophy developed from primitive Christianity. Augustine distinguished two kinds of values, namely, the city in the sky and the city on the earth. The former pursues sacred values, the latter pursues secular values, and the latter is the product of human corruption. In his view, the church is a tool designated by God to save mankind, and the state and law are the means to punish and relieve criminals in order to deal with the fall of mankind. Therefore, the state must obey the church, and the secular law must obey the eternal law of God. Obviously, Augustine replaced the natural law with eternal law and the Stoic "rationality" with God.
Thomas Aquinas combined Augustine's theological legal thought with Aristotle's naturalistic natural law thought and put forward the classic theological natural law. Aquinas divided the laws into four categories as shown in the following table according to whether the laws belong to God or man, rational or specific words:
Aquinas' Four Laws
God (God)
mankind
rationality
Eternal law
natural law
Text expression
Divine law (Bible)
Personal law (positive law)
Source: Selected Political Works of Aquinas, translated by Ma Qinghuai, Commercial Press, 1963, pp. 106 to 108.
In Aquinas' view, eternal law is God's reason, the supreme law governing the universe, and the source of all laws. The Bible is expressed in words and has a higher status than human laws. Natural law is the understanding of God's eternal law by human reason, and it is "the participation of rational animals in eternal law", which is manifested in the written law formulated by state organs (monarchs). Therefore, the laws (positive laws) formulated by state organs must obey the laws of nature and ultimately obey the eternal laws. By affirming man's rationality, natural law also affirms man's independent existence status, and affirms man's survival requirement of seeking advantages and avoiding disadvantages. Aquinas also announced for the first time that the content of natural law can change with time, which triggered the germination of relative natural law, which was a breakthrough to the previous natural law thought.
Third, classical natural law.
17 and 18 centuries' popular classical natural law is a break from medieval theological natural law, which means the end of medieval theological (theocratic) worldview and the birth of modern legal (legal) worldview. The classical natural jurist, the enlightenment thinker, no longer regards divinity as the basis of natural law, but thinks that natural law is applicable to the natural state [5] and legal principles can be deduced from human reason, which is superior to positive law in effectiveness. 17- 18 century enlightenment thinkers mainly include Grotius of the Netherlands (1583- 1645), Hobbes of the United Kingdom (1588- 1679) and Locke. German Pufendorf (1632- 1694) and French Montesquieu (1689- 1755) and Rousseau (17 12-). Although their views on natural law are not completely consistent, they generally believe that natural law is related to natural state and social contract, and it is a universal law in natural state before the formation of human society. Human beings can use reason to derive these principles that are in line with the fundamental interests of human beings, and their core is human freedom and equality. Enlightenment thinkers are the most determined reformers in the application of natural law, demanding that any positive law that does not conform to natural law should be ruthlessly abolished and reformed. 17 and 18 centuries, the revolution and legal reform were largely driven by the theory of natural law.
The development of classical natural law can be roughly divided into the following three stages.
The first stage (after the Renaissance and the Reformation, but before the Puritan Revolution in England) was a period when Europe sought liberation from medieval theology and feudalism, which was marked by the rise of Protestantism, the emergence of politically enlightened absolutism and economic mercantilism. The theories of Grotius, Hobbes, Spinoza (1632- 1677) and Pufendorf all belong to this stage of natural law. There is a similarity in their theories, that is, they all think that the ultimate guarantee for the implementation of natural law should be found in the wisdom and self-discipline of rulers. For example, like Hobbes, Pufendorf believes that people are strongly driven by self-love and selfishness, and are born with some degree of malice and aggression in human nature; At the same time, consistent with Grotius, I believe that people also have a tendency to seek unity with others and live a quiet and friendly life in society. Starting from the duality of human nature, Pufendorf believes that natural law has two basic principles: protecting one's life and property and not disturbing social order. Together, the two principles are that "everyone should actively safeguard themselves so that human society will not be disturbed" [6]. Pufendorf believes that natural law is a real law, not just a moral guide, and the sovereign must abide by it. Only God is the "avenger of natural law", but when the monarch becomes the real enemy of the country and puts the country in real danger, individuals and people have the right to resist the monarch in order to defend their own and national security.
The second stage (1940s Puritan Revolution in England to the beginning of the 8th century) is characterized by economic, political and philosophical liberalism, and Locke and Montesquieu are the representatives of natural law in this period. Locke believes that in the natural state before the appearance of human law, natural law is applicable. "Reason, that is, natural law, teaches all human beings who are interested in obeying reason: since people are equal and independent, no one can infringe on the life, health, freedom and property of others." [7] The natural law requires that the property of others should not be infringed, the property that does not belong to them should be returned, the promise should be fulfilled, the damage caused by the fault should be compensated, and those who should be punished should be punished. However, according to Locke, in the natural state, there are no clear legal provisions, no impartial judges, and no power to execute judgments. Therefore, human beings establish society in the form of social contract, establish state power institutions and promulgate clear laws to protect people's lives, property and freedom. Obviously, the laws promulgated by the state "are only fair based on natural law, and their provisions and interpretations must be based on natural law" [8]. In addition, they are in favor of a decentralized method to protect the natural rights of individuals and oppose the improper violation of these rights by the government. The natural law thought at this stage later occupied an advantage in American ideological circles.
The third stage is (/kloc-the French Enlightenment in the 8th century), which is the stage when people firmly believe in sovereignty and democracy, and Rousseau is obviously the most outstanding representative. In Rousseau's view, natural law is entirely out of human reason, universal justice and the general will of the people. All laws must be made by the monarch (legislator) under the guidance of the general will and must also be amended by the people. "People can always make a decision to change their own laws" [9]. Rousseau firmly believed in the existence of individual "natural rights", so people classified him as a representative of classical natural law. However, Rousseau advocates the supreme collective "public will" and does not advocate taking measures to prevent the sovereign from abusing his power, which is easy to be abused maliciously and leads to autocracy. This thought distinguishes him from Herlock and others. The theory of natural law at this stage was mainly popular in France and became the ideological basis of the French Revolution.
Although the views of modern enlightenment thinkers on natural law are not completely consistent, the general view is that the natural law constructed by human reason is self-evident, consistent and inevitable, and even God cannot change it. It is the basis of positive law and the standard to measure the good and evil of all actions. This thought was particularly subversive and revolutionary at that time. As Dentlev commented: "If there were no natural law, I am afraid there would be no American or French Revolution, and there is no reason for the great ideal of freedom and equality to enter people's hearts and then enter the legal classics." [10] Many propositions derived from natural law have become common sense in modern society, such as: (1) Individualism is an idea centered on individuals, which advocates that individuals take precedence over collectives and that individuals are the premise and foundation of collective and social existence. (2) Human rights mean that individuals have some innate and inalienable natural rights, including freedom, equality, property, security, resistance to oppression and so on. (3) The rule of law refers to the legitimate government and power, which originates from the law. Without the people's permission, we can't exercise compulsory power, we must restrain the government power, and everyone is equal before the law, which has produced ideas and system construction such as democratic system, constitutional system and separation of powers.
Fourthly, the decline and revival of natural law.
19th century is the era of the decline of classical natural law, which has at least two reasons.
On the one hand, the subversive and revolutionary classical natural law has completed the historical mission of eliminating human superstition and prejudice and overthrowing the old unreasonable system. Many ideas advocated by it have become realistic systems, thus losing most of the motivation and necessity for a time.
On the other hand, there are some vague and difficult questions in the logic of classical natural law, such as what is the exact content of natural law? How to prove the existence of natural rights? Analytical positivism and historical school attacked the theory of natural law on these issues, destroyed its transcendental philosophical foundation and weakened its influence.
However, as mentioned above, natural law is a resistance to unjust laws. As long as people are dissatisfied with the actual political and legal system and demand reform and progress, natural law will not die out. Or, as Maine said, "The darker the times are, the more frequently they resort to the laws and states of nature" [1 1]. 1At the end of the 9th century and the beginning of the 20th century, the theory of natural law began to revive, which was called "new natural law" [12]. After World War II, due to the influence of American civil rights movement and anti-Vietnam War, the academic reflection on fascism during World War II was further strengthened and reached its climax after 1960s. Therefore, the revival of natural law can be divided into the following three stages.
1, the first stage 19 from the end of the 20th century to World War II.
Natural law, which declined after being attacked by positivist law and historical law, showed signs of revival at the end of 19 and the beginning of the 20th century, which was marked by the appearance of New Thomas Law [13] and French jurist J. Chamonix (1859- 10).
The revival of natural law in this period has at least the following factors:
(1) The western legal and political system established under the influence of classical natural law has been orthodox for a century. With the development of the times, many aspects have exposed shortcomings and need reform. However, analytical positivism emphasizes the logical analysis of the existing legal system without making value judgments, which cannot provide sufficient guidance for the reform of the legal system. Its certainty and scientificity make people who are eager for reform feel dissatisfied and doubt its desire for power worship.
(2) The demand of judges In the trial, judges do not simply apply rules or precedents to specific cases or situations by using pure logical reasoning, but encounter more and more unresolved problems, which need to be guided by the principle higher than positive law, flexibly explain existing laws or supplement them with moral principles and abstract rationality. Therefore, judges need natural law to supplement the deficiency of positive law and give the court the freedom to make judgments.
(3) The need of legal discipline Although natural law is somewhat difficult in logic, its discussion of basic legal issues such as the relationship between law and morality, the value of law and the justice of law can guide people to further think about legal issues and gain a profound understanding. Without this part, law as a discipline is incomplete.
The main representatives of the new natural law at this stage are Geny (1861-1944), Chamonix, Vecchio (1878- 1970) and Stammler. At this time, the new natural law is not strong enough, and its influence is not big enough. The dominant theories in law are still analytical positivism and sociological law.
2. The second stage is from World War II to the end of 1950s.
During the Second World War, fascism was rampant, and German Nazis seriously trampled on the traditional western concept of human rights and the requirement of legislative power restriction. The connection between fascist atrocities and positivist jurisprudence has aroused people's deep thinking. Natural law should have absolute value standards, and the view that justice is higher than positive law has aroused the concern of most people again, which has promoted the development of new natural law.
In the process of reflection, two things played a key role.
(1) Nuremberg trial In the process of trying German war criminals in Nuremberg, the question of whether military leaders should bear the responsibility when executing the orders of political leaders to kill people was raised. The trial results show that the judge believes that in the face of obvious murder and barbaric crimes, those military leaders who carry out orders must obey higher moral obligations, and superior orders cannot be used as a reason to exempt the defendant from responsibility. This trial is recognized as the victory of natural law theory and the failure of positivism law.
(2) The Turn of gustav radbruch (1878- 1949) Sometimes, a person's actions can play a considerable role in historical development, and radbruch is such a person. After World War II, he changed from positivist jurisprudence (neo-Kantian) to natural law, which shocked the western legal circles, caused extensive debates and greatly promoted the development of new natural law. Before World War II, radbruch firmly believed in the distinction between "what is" and "what should be" and the theory of value relativity, and believed that it would rather be unjust order than tolerate chaos. After the war, he accused positivism of encouraging German jurists to stand on the side of Nazi atrocities, and admitted that there was a divine law or super-real law (that is, natural law) on top of positive law. When the conflict between them reaches an intolerable level, the positive law completely loses its nature and effectiveness, and people should obey the just natural law at this time.
The representatives of this stage are not only German radbruch, but also French Jacques Maritain (1882- 1973) and Jean Dabin (1889-? ), and American fuller (Lon Fuller, 1902- 1978). Among them, Maridan and Daban held theological new natural law, which occupied a dominant position in this period, reflecting people's psychological trauma under the fascist legal system after World War II, their disappointment with secular positivist law, and their yearning for theological law that transcended and restricted the real legal system.
3. The third stage after the 1960s.
The 1960s was the era of American civil rights movement. Black people's struggle against racial discrimination and for democratic rights is surging, which has been supported by other ethnic minorities and people with a sense of justice. 1968 French students' demonstrations and intellectual protests, American students' anti-Vietnam War action in the late 1960s and women's liberation movement made people doubt the philosophical basis and values on which the western legal system depends, and caused scholars to rethink and explore the value basis of the legal system. All these have pushed the new natural law to a climax, and the sports center has also moved from the western European continent to the United States.
The new natural jurists in this stage are mainly American scholars, with Fuller as the leader and Rawls (192 1-) and Dworkin (Ronald Dworkin,1931-) [14] as the backbone. British Fenice was also an important new natural jurist at this stage.
V the transformation of classical natural law by new natural law
In insisting that some basic principles are higher than positive law, the new natural law inherits the classical natural law, but it is also different from the classical natural law in the following aspects.
1, no longer seeking transcendental and eternal absolute basis. The confidence and rationality of classical natural law can seek an eternal transcendental value basis for natural law (not limited by time and space), and all legal systems can be derived from some absolute principles. The new natural law no longer believes in the absolute transcendental value basis, and thinks that justice, equality, freedom and efficiency can all be the basis of natural law, and the content of natural law can be changed. Obviously, the value pluralism and relativism of the new natural law are relatively strong. To a great extent, the new natural law no longer has ontological significance, but only has epistemological and methodological significance, and is a method used to judge individual ethics or positive law principles.
2. Classical natural law, which is no longer subversive and revolutionary, is a powerful weapon for enlightenment thinkers to oppose the dark autocratic system and outdated legal system, and has the desire and ability to re-evaluate and subvert all existing legal systems. The new natural law does not have such desire and ability, but only explores the value basis of mature and perfect legal system and legal tradition, as well as the perfection principles of some specific legal systems.
3. With the trend of integration and integration, the new natural law, social law and positivism law are no longer in a state of serious opposition, but there is a phenomenon that they are close to each other and are willing to accept the revised forms of some theories put forward by each other. In fact, the new natural law has absorbed many achievements and viewpoints of social law and analytical positivism law, so it has the tendency of integration and synthesis. For example, Maridan's new natural law is called social natural law, and Daban's theory is called analytical natural law.
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[1][ English] Main: Ancient Law, translated by Shen Jingyi, Commercial Press, 1959, p. 43.
[2] Quoted from Zhang Wenming: A Study of Western Philosophy of Law in the Twentieth Century, Law Press, 1996, p. 49.
[③] Quoted from He: History of Western Law, China University of Political Science and Law Press, 1996, p. 37.
[4] Quoted from [America] Bodenheimer: Jurisprudence-Philosophy of Law and Legal Methods, translated by Deng Zhenglai, China University of Political Science and Law Press, 1999, p. 14.
[5] Hobbes, Locke, Rousseau and others obviously hold different opinions on the state of nature. Hobbes regarded the state of nature very badly, thinking that it was a state of war in which everyone opposed everyone; Locke thinks that there are good and bad natural states, and people are equal and free. Although there are natural laws, there is no clear law and power to maintain order. Rousseau, on the other hand, saw the natural state better and thought that entering the society from the natural state was the beginning of human depravity.
[6] Quoted from Bodenheimer: Jurisprudence-Philosophy of Law and Legal Methods, p. 44.
[7][ English] Locke: On the Government, Part II, translated by Ye Qifang and Qu Junong, The Commercial Press 1964, p. 6.
[8] Tong Locke: The Theory of Government, Part II, p. 10.
[9][ France] Rousseau: "On Social Contract", translated by He Zhaowu, Commercial Press, 1980, p. 73.
[⑩] Quoted from Zhang Wenming: A Study of Western Philosophy of Law in the Twentieth Century, p. 48.
[1 1] Maine Cited: Ancient Law, p. 53.
[12] The credits of the New Natural Law are theology (neo-Thomasianism) and secular (non-theology). The former occupied a dominant position just after World War II, while the latter became the mainstream of new natural law after 1960s.
[13] Thomas refers to Thomas Aquinas, and the new Thomas jurisprudence refers to the revival of natural law theory based on Aquinas theology.
[14] There are different opinions about whether Dworkin should belong to the new natural law school, and Dworkin himself denies it. Here, according to the definition of natural law in this paper and the classification habits of most domestic scholars, he is classified as a new natural law school.
Note: The original text is a chapter in An Overview of Western Schools of Law. A friend once asked me how the western natural law thought came into being, so I posted a part of this chapter. Although the writing is relatively shallow, I can answer this question a little and provide reference for interested friends.