Natural law ( Latin ius naturae , from ius ' law ' and natura ' nature '; also Latin ius naturale , natural law ; less often over-positive law ) is the term used in legal philosophy for a universally valid ordering principle, the basic assumption of which denotes the idea that from the Nature of man the norms of human coexistence are to be justified. In terms of natural ethics, natural law is not to be understood as the “law of nature”, because the focus is on people who create values with their natural dispositions.
The question of implementing a priori ideas on righteous action, truth, good and beautiful was already raised in the philosophy of ancient Greece . Plato and Aristotle also argued that the medium of reason needed to make these values arable for humans, in particular to protect them against drives and desires and to create balance. The sophists countered these essentialist approaches with named legal principles. The modern and modern natural law was decisively by the Enlightenment philosophers Hobbes , Locke and even Rousseau affected. For today's reception, natural law gained importance in human law, positive law . This is represented by a number of important codifications from the 18th century, such as the Prussian land law . As the highest-ranking legal source , it serves to legitimize legal views.
In a narrower sense, moral philosophy and theology use natural law as a yardstick for those principles from which the nominal sentences and the determination of justice for a natural togetherness are derived. The legal positivism other hand, considers that constitutionally concluded Come law does not need higher justification.
Natural law is conceptually rooted in Greek philosophy. While natural law had hardly any significance beyond the Roman Republic until the classical period of the emperors in Rome , it gained importance in the post-classical period and took its place alongside the ius gentium or took its place. The Catholic Church sticks to the term natural law into the 21st century .
The secular legal-philosophical manifestations of natural law, which are not derived from basic religious values, but from the recognizability through human reason , are referred to as the law of reason .
The concept of natural law is conceptually from the ancient stemming based on the conviction that "the standards of human coexistence can be justified by the nature of man and need." This includes both non-contentious legal bases (premises) in the tradition of ancient philosophers like Heraclitus , the Sophists, Aristotle and Plato, who stem from an idea of an objective or absolute truth, as well as the idea that every person is "by nature" (ie not by convention ) endowed with inalienable rights - regardless of gender, age, place, nationality or the time and the form of government in which he lives. Nature is understood as a characteristic of the “essence” of man, not as “rights of nature” in the natural-ethical sense . In this respect, the idea of natural law is closely linked to the idea of human rights . The natural rights are therefore seen as pre- and supranational “eternal” rights. With Heraclitus, Plato and Aristotle, the idea of ancient natural law arises from a unified approach, the coincidence of human nature ( physis ) and man-made laws ( nomos ). Physis and nomos are anchored in the logos , hence the divine unity of the world laws. From this derive the laws of nature and reason , which establish the laws for communal living together.
There is also a conception of natural law as the “law of the strongest”. Given that it was not for profit , this meant that equal rights should enable better performance to triumph over traditional entitlements. In Social Darwinism and Fascism , however, a paradoxical “ancestral right to better performance” emerged - similar to the previous “by God's grace” legitimation of the unassailable monarchy position in divine right .
The appeal to over-positive law is based on the fact that certain legal clauses, regardless of the specific form of the legal system, claim to be “absolutely” valid and thus neither have to be created by a positive act of law-making nor can they be overridden.
Questions of natural law have always focused on aspects that concern legal philosophy as well as philosophy and theology . Natural law as an essential branch of legal philosophy forms one of the foundations of jurisprudence , which in the sense of a natural law of reason tries, for example, to formulate “commandments of morality” or to create critical standards of the applicable law by characterizing contradictions to human law.
Furthermore, natural law is to be understood as the yardstick and corrective of positive law. The Roman Catholic Church also takes this view .
In the modern tradition, which presents itself decidedly as “post-Christian”, the definition of the term is based solely on human reason.
Origin and historical development
The idea of natural rights (in both forms) goes back to ancient Greece and gained political importance as a discipline in France and England with the Enlightenment in the 17th and 18th centuries. In Germany, natural law was also a scientific discipline, but geared towards private law. The scientific enterprise was set up supranational, because the basic fonts were perceived as common property, the Germans also studied Locke, the French Wolff. The idea was only partially in opposition to the Christian - medieval understanding of grace , according to which properties such as life or freedom were given personally and arbitrarily by gracious authorities such as God or the prince , without any right to them. Nevertheless, the doctrine of natural law in the Middle Ages was very pronounced among philosophers such as Thomas Aquinas , since the properties conferred by the authorities were not put at the disposal of an unauthorized person and insofar direct law became effective.
Greek and Roman antiquity
The roots of the teachings of natural law go back to ancient Greece . In the sixth century BC, the Ionians who lived in Miletus and the port cities on the western edge of Asia Minor developed the Ionian philosophy of nature. This natural philosophy understood nature (physis) as original and of absolute, eternal inner law. She contrasted them with human law, the validity of which is based only on conventions.
Lykurg's laws, according to the legend of the founder of Sparta , are said to have been inspired by Apollo . It was customary for lawmakers to turn to the Oracle of Delphi for approval of their plans. This religious basis of legislation was shaken when the sophists turned to natural philosophy and developed a disrespectful skepticism towards the belief in the divine origin of the law . The sophists called for change and opposed an order of domination and slavery . They criticized the state and its laws because they contradict human nature. Friedrich Hegel was later to call this criticism of the traditional order the "Greek Enlightenment". The well-known sentence comes from the sophist Protagoras from Abdera : “Man is the measure of all things.” There is no absolute truth, not even an objective one, but only a subjective one. He took the position that he knew nothing about the gods and that no one could prove their existence. Protagoras had in 443 BC Worked on a constitution for the Athenian planting town Thurioi in southern Italy and was the first to set up the theory of the origin of laws, which became known under the term of a social contract . Protagoras was accused of godlessness and banished from Athens , his books destroyed.
Plato and Aristotle contrasted the demanding natural law of the sophists with a typically preserving natural law. Their counter-arguments were also based on human nature. However, state and law are part of its nature, which is why human law and nature do not contradict each other, which consequently justifies the natural inequality of men and women or even slavery. Nature brings with it that there are strong and weak. Following the law of nature means that the strong rule over the weaker. In his political work on the philosophy of the state , Aristotle refers to the essence of man as a zoon politikon , correctly translated that means nothing other than “man is by nature a state being”. Plato also relativized the profound positivistic view of Protagoras. In the dialogue of the same name he put an introduction before which reproduces the myth according to which the conscience and the sense of justice were distributed to the people on Zeus ' orders. The contrast between nature ( physis ) and law ( nomos ) in Plato becomes visible for the first time through Hippias . Some of the sophists took over the idea of the inner regularity of nature, but also considered the physical nature of man to be given by nature.
In his tragedy Antigone, the ancient writer Sophocles , who lived at the same time as Protagoras, addressed the relationship between human-enacted state laws, which can also be injustice, and divine laws: Against the law of the ruler, to leave all enemies of the state unburied to the birds for food on the death penalty , Antigone buries her brother, who died in the attack on Thebes in order to fulfill the commandments of the gods of the underworld.
The stoic philosophy that began after Plato and Aristotle saw the concept of nature in a unity with the eternal world law, "lex aeterna", which was also "lex naturalis", the law of nature. In the “logos”, the reason of the universal law, man shares through his own nature, and natural law is based on this rational nature of man. Stability gives this thought that the starting point of the Aristotelian tradition is the immutability of human nature.
This idea is also the basis of the Roman state and legal thought , because the Stoa had a considerable influence on the republican and especially the classical law of the imperial era . The first influences of ancient Greek law based on legal philosophy were reflected in the Twelve Tables Act . The world of ideas of the Stoa had brought with them a three-person commission that had been sent to Athens to study Solon's laws . 452/1 BC The knowledge of the so-called decemviri was transformed into the ancient Roman legal principles already existing by customary law and immediately fixed in writing. According to the founder of the systematic system of institutions , Gaius , the ius gentium was based on ius naturale , a normative power understood as natural reason, which is the basis of all peoples. There is a supreme reason, which is alive in all people, consistent with nature, unchangeable and eternal. To obey this reason is the only law that all people have to obey. The natural law includes the connection between man and woman and the upbringing of children, which can be found equally in the animal and human kingdom.
In turn, Epicurus turned against Plato's theory of ideas in his 33rd main doctrine of the Kyriai doxa :
“There has never been justice in itself. Rather, all law was always based only on an agreement between people ... "
The only decisive factor is the benefit of the law, as he stated in the 37th main tenet:
"What is recognized to be useful for mutual needs within an existing community has the right to apply in lieu of law, regardless of whether it results in the same law for everyone or not."
Both the criticism of the different treatment of people by positive laws and the criticism of the development of laws in general for the benefit of the weak is documented in antiquity (Plato's Gorgias and Kritias or Ciceros De legibus ).
“Legum denique idcirco omnes servi sumus ut liberi esse possimus.”
"After all, we are all servants of the law in order to be free."
In addition to the triad of legal, custom and legal law, Cicero also set the principle of natura , although not as a source of law in the immediate sense, but nevertheless as the ultimate cause of all law. The Rhetorica ad Herennium even places natura next to lex and mos and thus the law of law and the customs of the fathers derived from customary law.
Augustine calls the creation order of the world that has existed from eternity as lex aeterna . The lex naturalis is an expression of this in the human "ratio", reason . The order of creation exists in reason or in the will of God. In his work Vom Gottesstaat , using the example of the city of Rome , he deals with Cicero's question of whether the state might have to be unjust. What is based on human injustice must not be called right or taken to be right.
"True righteousness only rules in the community of which Christ is the founder and leader"
This concept of the Creator God as the author of the world order, developed in late antiquity , replaced the ancient concept of impersonal world laws in the Christian Middle Ages.
For the Canon law created Thomas Aquinas a theoretical framework. On the occasion of his studies in Paris, he came across the writings of Aristotle, which were reimported by the Arabs and which he linked to the traditional theology of Augustine. One of the basic philosophical problems of his time was the question of whether reason or divine will had priority in the lex aeterna . Aquin developed a new doctrine from his approach that attempted a synthesis of the two origins discussed. In Summa theologica I-II he developed a four-level structured teaching on the law ( lex aeterna , lex divina , lex naturalis , lex humana ), whereby the terms lex aeterna and lex naturalis are not identical to those of the ancient terminology (Stoa, Augustine). For the first time in the Christian understanding of theology, reason appeared at the center of human nature ( appetitus quidam rationalis ).
According to this, the lex naturalis is the “participation of the eternal law in the rational creature.” With it, the actual core of natural law, man intellectually engages in the part of the lex aeterna that he can recognize . The superordinate lex aeterna , the eternal law, is a creative plan of God that maintains order because divine wisdom guides the human scope of action. There is cosmos not chaos. A revelation does not have to be assumed, since God's existence can be demonstrated philosophically. According to this, nature is not pointless and the real is reasonable, although no one is able to recognize the eternal law as it is in itself. In Aquin's approach to natural law, through participation, what is natural and what is reasonable are equivalent.
By virtue of reason, people are only able to recognize the lex aeterna in broad outline, but in a third sphere of order, the lex humana , they understand how to set law themselves and to live accordingly in church and state. Contradictions that arose in the relationship between state and church had to be resolved in favor of the precedence of the church's legal claim, since statutory law merely participated in the divine plan of creation. Natural law included the Old Testament Decalogue , the instinct for self-preservation and reproduction , sociability and knowledge of God.
Beginning of modern times and enlightenment
Even more than Thomas Aquinas, who took Aristotle as one of his models, the renaissance turned to the ancient spiritual world. Humanism was the name of the new movement that set up the ideal of a purely “human” (humane), and therefore not theological, education oriented towards antiquity . After the Reformation and Counter-Reformation , the medieval connection between the question of justice and theology was no longer a matter of course. A search now began for non-denominational standpoints that could form a foundation of justice instead of Christian theology. To this end, the necessity was recognized to slowly separate the religious content that Aquinas had bound to natural law. Natural law was profaned because binding statements could not be made due to the split in faith.
But it wasn't just this disparity that led to rethinking. Philosophical and theological approaches moved from the center of consciousness, the demand for general equality of people was formulated more according to legal standards. The call for equality not only founded an important social change, at the same time it was also an effective lever for combating and subsequently eliminating the prevailing feudal basic structures. The scientific impressions of the new rationalism , as prescribed by the mathematical method, contributed in advance to the idea , as it had started with Galileo and Descartes . The “iura naturalia”, the natural rights to life , freedom and property , can already be found in Wilhelm von Ockham's work , even if he still saw God's will as the only reason for justice. In the Catholic moral theological discussion following late scholasticism, the idea of natural law was already developed, while Protestant orthodoxy initially fought it, although it also had roots in Luther , Melanchthon and Calvin . This preparatory work was probably the most important contribution of natural law, as it served as the basis for the formulation of general human rights.
Sympathizers of the Counter Reformation such as Michel de Montaigne argued that - if laws were ordained by nature and implanted in human nature - they would have to be "universally accepted by all peoples [...]" by virtue of approval. This “universality of recognition” would not apply to a single law. If such laws ever existed, the human mind even supplanted them. Montaigne continued this idea of the particularity of legal ideas in the sense of a skeptical tolerance also towards extremely divergent social systems and legal customs: Lycurgus emphasized the general benefit of stealing, which trained attention, attack and defense for the benefit of all.
The legal philosophy of the early Enlightenment tried to deduce natural rights as necessary to reason. The early pioneers of the Enlightenment , Thomas Hobbes and Hugo Grotius, were particularly influential in shaping a “ liberally ” determined idea of natural law . Grotius, a Protestant lawyer and theologian, lived in the port city of Rotterdam in Holland, which sailed the oceans with its ships and had a great interest in protecting its trade from military and predatory attacks. In the competition with Portuguese, Spanish and English merchant shipping, the most important question was whether there was a natural right to free navigation in the sea . It must not be possible for this right to be set or revoked by a state; it had to stand above the states and bind all states. In addition, this right was not allowed to “know any difference between denominations”, it even had to apply to non-Christian denominations, after all, trade was not limited to Christian countries. That is why Grotius sought the right in the nature of man, who rationally strives for a "peaceful and intelligently ordered community with his own kind". The natural law understood in this way included Grotius, "that one respects other people's goods and repays them when one owns or has taken them, furthermore the duty to fulfill promises made, then the reparation of a culpable damage and the retribution by punishment". The central principle of natural law is the obligatio ex consensu (obligation arising from the agreement of wills) and the general obligation to keep contracts .
Grotius ' De jure belli ac pacis from 1625, a book that laid the groundwork for the modern understanding of international law , and Hobbes' theory of the state from 1651 formed the beginning of the formulation of universal human rights. To derive his approach, Grotius followed the private law principle of offer and acceptance borrowed from Roman law . He emphasizes that the parties have to declare their common will . The unifying bond of the treaty holds everything together in the intercourse of peoples and establishes law, which has its own validity, solely through the treaty, without a state. Internalized this, the idea could be transferred to the state. Hobbes is completely different. He took the view that there was only one right by the state, the legitimation of which follows from a certain human nature. Its laws are thus natural law. Hobbes contrasted a humanistically taught, spiritual-scientific conception in Grotius with a Cartesian- logical enumeration of "natural laws" following the laws of the new natural science , because according to his doctrine it was to pacify the power-demanding nature of man by instead of using it in belongs in the hands of a sovereign . Samuel von Pufendorf synthesized the two drafts in 1672 in his natural law system ( De iure naturae et gentium libri octo ), since he was equally concerned with moral order, human rights and free will. The creatural weakness of the individual who is already free and equal in his natural state (insofar as he follows Hobbes) can be overcome by his conception, when people join forces and are strong together (insofar as follows Grotius). For the first time, natural law takes on the character of a legal system in which legal theoretical claims can be formulated. For the first time, it is also outside of mere social philosophy .
They all detached natural law from the religious-theological basis of divine law ( lex aeterna ) and recognized in it a constant value system that rises above social models and is independent of them. For Pufendorf, however, natural law "agrees with Christian revelation, since both have their origin in God." In terms of legal policy , particular mention should be made of John Locke , to whom the US founding fathers and especially Thomas Jefferson referred to when formulating the US strongly related to the American Declaration of Independence . Other important work on the refinement and specification of the material was provided by Pufendorf's students, such as Christian Thomasius , whose work Fundamenta iuris naturae et gentium was published in 1705, and Christian Wolff , the founder of the term jurisprudence , whose treatise Ius naturae methodo scientifico pertractatum shaped the absolutist welfare state and in the Years 1740/48. But also works by forerunners of Grotius belong to it, for example Johann Oldendorps Eisagoge iuris naturalis from the year 1539 or the work Dicaeologia by Johannes Althusius published in 1617 .
The philosophers of natural law Grotius, Pufendorf and Locke, who were all three Protestants , escaped the ambiguity of the conceptual natural law by equating it with biblical revelation . In their view, revelation and natural law went back to the same author, God. In their writings that deal with political, legal and social issues, they repeatedly referred to the Old and New Testaments . In particular from the creation stories (Genesis 1 and 2), the Decalogue (Ten Commandments, Exodus 20), the behavior and teaching of Jesus ( Good Samaritan Luk. 10, 30-37, Love Commandment Matt. 5, 44; 19 , 19, Golden Rule, Matthew 7, 12 and others) and the Pauline letters , they gained central points in their political theories . The Decalogue places, among other things, life, property and good reputation of man, i.e. his honor and dignity , under divine protection. The preamble (Exodus 20: 2) points to the liberation of the people of Israel from Egyptian slavery. God's act of liberation precedes the demands and justifies them. Locke derived the equality of human beings, including the equality of men and women , not from philosophical-secular premises, but from Genesis 1:27 f., The basis of the theological Imago Dei doctrine . The principle of equality is an indispensable basis for any constitutional democracy . It establishes the freedom and participation rights of every individual. From this it followed for Locke that a government can only exercise power with the consent of the governed. The right to life, (legal) equality, freedom, dignity and property - these were central terms of the natural law teachings of Grotius, Pufendorf and Locke as well as other scholars of the Enlightenment named and filled with biblical content.
Natural law as a source of legal knowledge developed in the late 17th century into the science of legal principles and the logical acquisition of law and has had a lasting impact on legislation since the end of the 18th century.
In Germany, natural law experienced sustainability again through Immanuel Kant , whose extensive teaching activities as a private lecturer included natural law. Pioneering was his work The Metaphysics of Morals , in which various of his epistemological basic assumptions were incorporated. In the Kantian tradition, the law of nature and reason is considered a timeless conception that is a priori justified.
At the beginning of the 19th century , natural law in Europe was largely superseded by the historical school , to which in particular the German private law scholarship, which questioned the timeless validity of natural law. A representative of this conceptual approach is primarily Friedrich Carl von Savigny , who preferred to focus on the organic growth of customary law created by judges and legal scholars rather than trusting the codifications of natural law. As sources for a functioning legal system for Savigny all had historically developed legal traditions significance. When he started teaching at the newly founded Berlin University in 1810, Wilhelm von Humboldt brought him to the city as chief organizer of the faculty. The university was to become the leading university of the monarchy . In addition, he managed to level out the difference to legal positivism . In the matter, his accusation was directed primarily against the early modern influence of the glossators and commentators on the late antique legal compilations , which in his opinion would have led to falsifications as well as legal developments in the two previous centuries.
In the French Revolution , the biblical-theological anchoring of natural law was replaced by the doctrine of “common use” ( utilité commune ). This made it possible to manipulate “ civil and human rights”. The group of revolutionaries in power determined what the “common benefit” was and sent their political opponents to the guillotine. Mainly for this reason criticized z. B. Jakob Grimm in the Frankfurt parliament in 1848 the French attitude and called for a return to "the religious foundations of brotherhood and freedom of all people" ( Paulskirche constitution of March 28, 1849). He appealed to the American Declaration of Independence (1776), which, theologically justified the inalienable human rights to which "life, liberty and the pursuit of happiness" are: they are the people from their "creator" ( Creator has been awarded).
This rational approach, which leads to the concept of the law of reason , characterizes the Austrian law school, for example. In General Civil Code (ABGB) it is expressly stated: "Every human being has innate rights that are already evident through reason ..." (text from the first version in 1812). As a result, there is a central legal statement in ABGB: "What is appropriate to innate natural rights, this is assumed to exist as long as the legal limitation of these rights is not proven", that is, where there is no explicit legal regulation is, what is “reasonable” forms the basis of what is lawful for personal rights. This central statement puts natural law before positive law: “Natural law applies as long as it is not restricted.” This presupposes that the citizen has or should have a natural feeling as to whether his actions are still within the framework of what is appropriate. The same applies to the judiciary: “If a legal case cannot be decided either from the words or from the natural sense of a law, consideration must be given to similar cases determined in the law, and to the reasons for other related laws. If the legal case still remains in doubt; such a decision must be made with regard to the carefully collected and carefully considered circumstances according to natural legal principles. ”( ABGB). These legal bases imply that positive law only stands as a special set of rules against a background of a socially stable consensus that is inherently stable (but also capable of development). These approaches based on natural law - especially those that shape Pandect law - are incorporated into central legal terms, such as those of the general part of the BGB . The declaration of intent , the representation or the erroneous teachings in German criminal law are fundamentally shaped by natural law. The terms legal capacity and legal person are also part of it, as well as Austrian contract law and inheritance and marriage law ; likewise the principle of the prohibition of enrichment, which is the basis of several positive rules of Justinian law , has been recognized by rationalistic natural law.
The Nazi law was ideologically-natural law, which underwent the right positive set. The focus is on the community, according to the National Socialist legal theorist Hans-Helmut Dietze in his work “Natural Law in the Present” from 1936. Natural law is in the blood, so it is race-bound, and every national comrade can decide on good and bad through his sense of justice to meet about right and wrong. It is rooted "in the natural forces from which all real life in nature comes: in the urge of the blood, in the juices of the soil and in the intimacy of the same disposition."
The Basic Law of the Federal Republic of Germany took up the natural law tradition. “The commitment to human rights is directly linked to Art. 1 I GG. Because the dignity 'is to respect and protect' the people untouchable and, by all means violence, about the German people on human rights committed. The human dignity , a theologically and philosophically rooted term, primarily as untouchable provided ; only secondarily is their observance ordered by law. It is therefore declared as the highest legal value and gives rise to further recognition of human rights. In the opinion of many, ideas based on natural law have found expression in a German constitution. The theonomous tip of the constitution can be found in the opening words of the preamble , which reveals the legislature's motives and in which the people of the state refer to their 'responsibility before God and man'. Art. 1 GG thus appears as a consequence of the invocation of God as the creator of the person (created ad imaginem Dei [in the image of God]). ”That the Parliamentary Council actually based the Basic Law on natural law, especially in the area of human dignity increasingly rejected on the basis of the files of the deliberations of the Parliamentary Council.
After the Second World War and with the Universal Declaration of Human Rights of 1948 , natural law regained importance. According to the prevailing opinion , the reference to God in the preamble of the German Basic Law is not to be understood as a theological constitutional component, but essentially as an appeal to natural law.
According to the prevailing legal understanding , an example of over-positive law is human dignity (as the idea of inalienable rights). Although the Basic Law guarantees this in Article 1 of the Basic Law , its inviolability is presented here only as a principle of law; Rather, it should follow as a generally applicable legal principle from upstream ethical or religious views that should apply to all human societies. One consequence of this view is that human dignity should not only be inviolable, but especially indispensable. The legal entity cannot therefore effectively consent to their violation. In addition, the idea that human dignity is dictated by over-positive law leads to the result that an interference with the human dignity of an individual is illegal even outside the scope of the Basic Law. The interference violates the over-positive law, which is not created by any legislative act, but applies from itself. In the case law of the Federal Court of Justice , natural law has repeatedly flowed into Radbruch's formula , which under certain circumstances gives natural law priority over positive law.
After Roman Catholic moral teaching on the basis of a moral code is the morality of the human part of natural law. This becomes clear, for example, in the view that, according to natural law, homosexuality is reprehensible. This is justified by the fact that it is the purpose of sexuality to ensure the reproduction of the species. These views are criticized for the fact that sexuality should not be restricted to procreation, and that natural law therefore does not require an absolute justification to condemn homosexual partnerships. For only the moral code that has emerged through the generations gives natural law to natural law according to Ridley.
Sources of natural law
The legal principles taught in natural law are attributed to different sources that can not be influenced by humans . Examples are:
- God or a specific deity who created the principles of law at creation ,
- the Logos , interpreted as divine law , which orders the world and regulates its processes,
- the natural law inscribed and effective in the human individual (ability to self-knowledge and orientation of conscience) in contrast to the purely instinctive natural laws of the animal kingdom so defined by humans,
- certain scientific necessities that manifest themselves in nature,
- the nature as such,
- the reason .
Despite the possibility of using both God and man as the source of natural law, it cannot be rejected in the sense of modern natural science, but forms a main subject of moral and legal philosophy. According to Johannes Messner , the (specifically human) natural law, which is regarded as the main basis for natural law, “does not consist in an unchangeable moral code that is the same for all times , but rather in the basic values or principles that determine the fully human being and obligate people, which are only unchangeable in their general content and only have absolute validity insofar as they correspond to the unchangeable and itself representing an absolute value of the fundamental nature of the human person ”.
Differentiation from legal positivism
For legal positivism , only those norms are binding that have been enacted by a legislative act. Over-positive law alone - as a set of moral principles - is then, from the point of view of positivistic legal theory, on the one hand not subject to the grip of positive law , but on the other hand also has no legal effect . The pressure of consensual opinions can, however, influence the legislature to make over-positive principles law (positive law).
In certain areas of law, natural law provides the essential basis of argumentation for determining the unavailable minimum content of norms. Particularly noticeable are behavioral requirements or commands that are prescribed to human rights or international law and which must go beyond national positivist regulations. "Natural law is then that part of human natural law that relates to communal life", because only where community, there also law, which is why Johannes Messner defines it as follows:
“Natural law is the order of existence, the basic order of human existence as a human being, in the truest and fullest sense of 'existing', the order of which he becomes aware of the specific content of the demands that exist, according to the principle that all knowledge is conditioned by experience , also that of the principles of legal reason as part of practical reason. Thus grasped, these demands are seen by the fully developed reason in their general truth and in their general binding validity. "
The idea of natural law stems in certain aspects from theism , which assumes a divine law that also appears as natural law. With the loss of God within a naturalistic worldview , the question arises for natural law theory as to how legal norms can arise beyond human institutions, especially norms that should apply to all people regardless of their culture. If there is no satisfactory answer to this, then natural law is actually a misrepresented ethical theory ; then it cannot be true that in the face of profoundly unjust positive laws, courts should judge not according to these laws, but instead according to fundamental moral principles. This interpretation corresponds to the history of the concept. For Christian Wolff, the term Lex naturae simply denotes the moral law, the moral duties are officia naturalia .
At the beginning of the criticism of natural law there is the insight that the word natural law is already ambiguous. From an (allegedly) god-established order of being (according to the Catholic doctrine of natural law), from an (alleged) original or ideal state of human society or from the “nature of man”, only that which can be read out as theological or moral premises beforehand can be read as natural law put into it. Such normatively charged natural law is based on a circular argument . If, on the other hand, the content of natural law only contains generally applicable sentences such as “The good must be done, the evil must not be done”, there is no circular argument.
Erik Wolf also emphasizes the ambiguity of natural law in another way . He writes: “In recent times one has princely absolutism as well as direct democracy , the jus majestatis as well as the jus revolutionis, the right to work as well as the right to enjoy interest, individualism as collectivism, war as the peace of a natural law corresponding origin or ideal state founded. The doctrine of natural law thus contains irreconcilable contradictions. It can be used in the good sense as well as in the bad sense, depending on the underlying, colorful concept of 'nature' allows. " Helmut Thielicke agrees and says that Wolf" rightly points out that one is on natural law based on reason is not in a position to establish uniformity and to offer a secure basis for the law. ”That natural law is ambiguous can also be seen from the fact that slavery, which according to today's understanding is probably the most serious breach of human rights represents, from Greco-Roman antiquity to the 19th century was justified by natural law.
Significant natural law representatives
- Thomas Aquinas
- Francisco de Vitoria
- Dominico de Soto
- Hugo Grotius
- Johann Oldendorp
- School of Salamanca (transition to modern times)
- Johannes Althusius
- Francisco Suarez
- Jean Barbeyrac
- John Locke (controversial)
- Samuel von Pufendorf
- Christian Thomasius
- Christian Wolff
- Gottfried Achenwall
- Adam Friedrich von Glafey
- Nicolaus Hieronymus Gundling
- Johann Christoph Hoffbauer
- Jean-Jacques Rousseau
- Ludwig Höpfner
- Gottlieb Hufeland
- Johann Adam of Ickstatt
- Thomas Jefferson
- Lysander Spooner
- Karl Anton von Martini
- Franz von Zeiller
20th and 21st centuries
Recent past and present
- Hans Kelsen
- Alf Ross
- Peter Stemmer
- Ernst Topitsch
- Reinhold Zippelius
- Karl Barth
- HLA hard
- Norbert Hoerster
- Ernst-Wolfgang Böckenförde , Franz Böckle : Natural law in the criticism . Matthias Grünewald Verlag, Mainz 1973, ISBN 3-7867-0390-6 .
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- This attribution position goes back primarily to the sophistry, cf. Erik Wolf : Greek Legal Thought , Volume II, Vittorio Klostermann, Frankfurt am Main 1952, p. 103 ff .; 134 ff.
- Research facility of the Evangelical Study Community (FEST) eV
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- Livy , 3,31,8.
- Livy, 3,32,4. For the extensions to include two more panels, cf. Livy, 3.34.6-7; 3.37.4.
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- Cicero, De legibus I , de natura hominis et iuris et civitatis (Cic. Leg. 1, 15-30): De institutis rerum publicarum ac de optimis legibus , translated: The derivation of law from nature (man).
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- Rhetorica ad Herennium 2, 10, 14 and 2, 13, 19.
- Reinhold Zippelius : History of State Ideas , Munich 2003, ISBN 3-406-49494-3 , p. 56.
- De Civitate Dei , 2nd book, chap. 21 in German translation (online) .
- Uwe Wesel : History of the law. From the early forms to the present . 3rd revised and expanded edition, Beck, Munich 2006, ISBN 3-406-47543-4 , p. 321 f.
- Thomas von Aquin : Summa theologica , The German Thomas edition (Latin / German), Graz / Vienna / Cologne 1933 ff .; I, II 91.2 ( participatio legis aeternae in rationali creatura ).
- Thomas Aquinas: Summa theologica. The German Thomas edition (Latin / German), Graz / Vienna / Cologne 1933 ff .; I, II 93.1 ( ratio divinae spietiae secundum quod es directiva Omnium actuum et motionum ).
- Margit Wasmaier-Sailer, Matthias Hoesch: The justification of human rights: a sketch of the current debate. In: Margit Wasmaier-Sailer, Matthias Hoesch (ed.): The justification of human rights. Controversies in the area of tension between positive law, natural law and the law of reason , Perspektiven der Ethik 11, Mohr Siebeck, 2017, pp. 121–125 (123).
- Thomas von Aquin: Summa theologica , The German Thomas edition (Latin / German), Graz / Vienna / Cologne 1933 ff .; I, II 93.2 ( quod legem aeternam nullus potest cognoscere secundum quod in seipsa est ).
- Uwe Wesel: History of the law. From the early forms to the present . 3rd edition, Beck, Munich 2006, pp. 374-381.
- Diethlem Klippel: Natural Law / Philosophy of Law. In: Heinz Thoma (Hrsg.): Handbuch European Enlightenment: Terms, Concepts, Effect. Springer, 2015, p. 375.
- Montaigne: Essais. Second book. Translated by Hans Stilett, Frankfurt 1998, p. 381.
- Montaigne, Essais. Second book , 1998, p. 382.
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- Dominik Recknagel: Unity of thought despite denominational division. Parallels between the legal teachings of Francisco Suárez and Hugo Grotius (= Meeting Point Philosophy , Vol. 10), Peter Lang, Frankfurt am Main 2010, p. 102 .
- See Thomas Hobbes : De Cive ; Text edition: Elementorum Philosophiæ: sectio tertia; de cive , Paris 1642.
- Samuel von Pufendorf: De iure naturae et gentium ( On natural and international law ), 1672; ders .: De Officio Hominis et Civis prout ipsi praescribuntur Lege Naturali , 1673.
- H. Hohlwein: Pufendorf, Samuel Freiherr von. In: The religion in past and present , 3rd edition, Volume V (1961), Col. 721.
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- Jeremy Waldron, God, Locke, and Equality , pp. 22 ff.
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- Hans Schlosser : Fundamentals of the recent history of private law. 5th edition, UTB, Stuttgart 1985, p. 74 ff.
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- Immanuel Kant : Metaphysical Beginnings of Legal Doctrine (= interpret classics, vol. 19), ed. by Otfried Höffe , Akademie Verlag, Berlin 1999, ISBN 3-05-003025-9 , introduction, p. 17 ff.
- Originally in the first drafts it was still called: Right to "life, freedom and property", according to John Locke - later for the final version of Jefferson property was replaced by pursuit of happiness .
- See entry on natural law in the Austria Forum (in the AEIOU Austria Lexicon )
- Natural Law . In: Leopold Franzens University Innsbruck - Institute for Public Law, Political and Administrative Studies: publiclaw.at Glossary .
- Sections 16 and 17 go back to Karl Anton von Martini . Information in Heinz Barta: Karl Anton von Martinis lasting importance for Austrian and European jurisprudence. Lecture publication, undated ( DOC file , uibk.ac.at).
- Wilhelm Brauneder: European history of private law. Series Uni-Taschenbücher , Volume 3487, UTB, 2014, ISBN 978-3-8252-3487-4 , pp. 117 f .; Quote p. 17 ( limited preview in Google Book search).
- Uwe Wesel: History of the law. From the early forms to the present . 3rd edition, Beck, Munich 2006, pp. 453-457 (456).
For example, the doctrine of error that goes back to Martini and J. von Azzoni when concluding contracts, cf. Gregor Lässer, Martini's legal philosophy and Austrian private law. From Martini's “Doctrine of Natural Law” (1762) to the ABGB (1811/12) (= Law and Culture 5). Lit Verlag, Vienna 2008. Reviewed by Gunter Wesener. From: koeblergerhard.de, accessed on January 27, 2014;
Heinz Barta: Civil Law - Outline and Introduction to Legal Thought. Chapter 5 E: Lack of will - error , p. 330 ff. ( Online , uibk.ac.at).
- Digest 50, 17, 206.
- Berthold Kupisch : Unjust enrichment, historical developments , v. Decker & Müller, Heidelberg 1987, ISBN 978-3-8226-2587-3 , p. 30 ff; see. also Berthold Kupisch: Die Versionsklage: Your development from the general law theory of the 17th century to the Austrian General Civil Code. (Diss.) C. Winter, Heidelberg 1965, p. 17.
- Quoted from Detlef Horster, Rechtsphilosophie , Reclam-Taschenbuch Nr. 20355, Stuttgart 2014, ISBN 978-3-15-020355-2 , p. 72.
- On the National Socialist draft of natural law by Hans-Helmut Dietze: Fabian Wittreck, National Socialist Legal Doctrine and Natural Law: Affinität und Aversion , Tübingen 2008, ISBN 978-3-16-149864-0 , p. 37 ff.
- W. Breach of values: Human rights . In: Religion in Past and Present 3 , Volume IV, Col. 869–870.
- Manfred Baldus : Fights for Human Dignity , Berlin 2016, p. 26 ff.
- Lukas C. Gundling: An Influence of Natural Law on the Basic Law? A commented reconstruction of the natural law discussion in the Parliamentary Council , Stuttgart 2016, p. 86 ff.
- See preamble GG .
- Until 1992 it was still listed as a disease by the World Health Organization , cf. Until when did the WHO list homosexuality as a disease? , Article on Spektrum.de, accessed on March 15, 2015.
- See also Christoph Seidler: Controversial “Therapy”: Catholic Doctors Want to Cure Homosexuals with Homeopathy , Spiegel Online , June 1, 2011.
- Matt Ridley, Eros and Evolution. The natural history of sexuality. Munich 1995 (first 1993).
- Reinhold Zippelius, Philosophy of Law , 6th edition 2011, § 6 VI.
- Fabian Wittreck: The Radbruch formula as a classic text of legal philosophy - Part 2 . In: Ad legendum 2008, pp. 186–188; deviating from this: Arthur F. Utz : The basic positions of natural law theories . In: Archive for Legal and Social Philosophy 83 (1997), pp. 307-315.
- Christiani Wolfii, Philosophia Practica Universalis, Methodo Scientifica Pertractata, pars prior, theriam complectens, qua omnis actionum humanarum differentia, omnisque juris ac obligationum omnium, Principia, a priori demonstrantur , Frankfurt am Main / Leipzig 1738, Nachdr. By Georg Olms Verlag, Hildesheim / New York 1971, §§ 129, 130, 135, 273.
- Zippelius, Philosophy of Law , 6th edition 2011, § 12 I – IV.
- Zippelius, Philosophy of Law , 6th edition 2011, § 12 VI.
- Erik Wolf, Rechtsgedanke u. bibl. Instructions , Furche-Verlag, Tübingen 1948, p. 17.
- Quoted from Helmut Thielicke, Theologische Ethik , 1st volume, 2nd edition, Verlag JCB Mohr (Paul Siebeck), Tübingen 1958, p. 657 f.
- H.-D. Wendland: slavery and Christianity. In: The religion in history and present , 3rd edition, Vol. VI (1962), Col. 101-103.
- (after 1933, restricted; represented a positivism corrected for extreme situations according to Radbruch's formula )
- See concrete order thinking .