The doctrine of natural law is one of the most popular legal doctrines. This doctrine was initiated by several leading legal experts, starting from Hugo Grotius to Mochtar Kusumaatmadja.
This doctrine has also been adopted in several legal systems. Until now, this doctrine is still one of the studies in legal science.
The Doctrine of Natural Law in the Greco-Roman Era
In pre-Aristotelian philosophy, law nature was the universal rule of the universe, and at the same time the rule of living together through laws. In the philosophy of the Sophists, natural law was interpreted as "the law of the strongest", which actually cannot be called law; what is called natural law here is nothing but power and violence.
Aristotle was the first to distinguish between natural law and positive law. According to him, natural law is a law that always applies everywhere because of its relationship with the laws of nature. This law never changes, never disappears and applies by itself. This natural law is distinguished from positive law, which entirely depends on human provisions.
For the Sophists, nature is something external, something that is outside of humans. Meanwhile, Aristotle, in his book "Logic," views the world as a totality that encompasses all of nature. Humans are part of nature, endowed with an active mind that distinguishes them from all other parts of nature. Humans are only able to shape their will according to the understanding of their minds. This thesis of Aristotle becomes the basis of the conception of law of the Stoic philosophers.
The school of philosophy that most influenced the Roman view of law was the Stoic school. The basic idea of Stoicism is that everything that exists is an orderly unity (cosmos), thanks to a principle that guarantees that unity, namely the world soul (logos). Logos is none other than Divine Reason, which animates everything.
This school argues that human coexistence has a relationship with logos through the universal law (lex universalis) that exists in everything. The universal law is contained in the logos, and as such is called eternal law (lex aeterna). Insofar as the eternal law becomes manifest in the universe, it is called natural law (lex naturalis). This natural law is independent of people, always applies and cannot be changed. This natural law is the basis of all positive law.
The Stoic philosophers distinguished between relative and absolute ideals of natural law. During the heyday of natural law, there were no families, slavery, property rights, or governments. But these institutions became important with the decline of human morality. "Relative" natural law requires legislators to have laws that are guided by reason and are as close as possible to absolute natural law.
The highest goal of humans is to become just people, by submitting to natural law (nomos) as an expression of Divine Reason (logos). State laws are obeyed because they are in accordance with natural law. Even Stoic thinkers argued that human society is maintained and developed because of obedience to natural law.
The Doctrine of Natural Law in the Medieval Era
St. Thomas Aquinas was the greatest philosopher of the Scholastic movement in the Middle Ages. He was influenced by Aristotle but expressed it with Christian dogma, making it a distinct system of thought. Thomas Aquinas formulated law as "a rule derived from reason for the common good, made by someone who has the obligation to care for their society and enact it." Because the world is governed by divine order, the entire world community is governed by divine reason. Divine law is the highest. Thomas Aquinas distinguished four types of law: lex aeterna, lex naturalis, lex divina, and lex humana.
Lex aeterna is divine reason that guides all movements and actions in the universe. Only a small part of lex aeterna can be grasped by humans through the reasoning mind bestowed upon them by God. The part that can be grasped is called lex naturalis, which provides direction to human activities through general instructions. The most basic instruction is that good should be done, and evil should be avoided.
Regarding what is considered good, Thomas Aquinas associates it with what constitutes a natural tendency in humans. First, is the natural human instinct to preserve their life. Second, the attraction between the two sexes and the desire to raise and educate children. Third, humans have a natural desire to know God and a tendency to reject ignorance. Fourth, humans want to live in society, and therefore it is natural for humans to avoid actions that harm those who live with them. Meanwhile, lex divina is what is contained in the holy books, and lex humana is what is contained in the new and old covenants.
Thus, the doctrine of natural law according to Thomas Aquinas is none other than a part of God's law, the part expressed in the natural mind. Humans, as rational beings, apply this part of God's law to human life, therefore they can distinguish between good and evil. This originates from the principles of eternal law, as expressed in natural law, which is the source of all human laws.
Furthermore, Thomas Aquinas divides his concept of natural law into two types as follows:
- Principia prima, which are principles that humans possess from birth and cannot be alienated from them. Therefore, principia prima cannot change according to place and time.
- Principia secundaria, which are principles that originate from principia prima, but are not absolute and can change at any time and place. Often, this principle is said to be a human interpretation using their reason towards principia prima. This interpretation varies, it can be good or bad. An interpretation can be generally binding if positive law gives these principles binding power, for example in the form of legislation.
The Doctrine of Natural Law in the Renaissance Era
During the Renaissance, the doctrine of natural law was no longer based on the concept of divinity (scholasticism), but rather on human reason. The founder of rational natural law was Hugo de Groot or Grotius. He wrote two famous books, namely De Jure Belli ac Pacis (on the law of peace and war) and Mare Liberium (on the law of the free sea). Grotius is regarded as the founder of international law by calling it the law of nations (ius gentium). According to Grotius, this ius gentium is a natural law practiced by all nations.
According to Grotius, the doctrine of natural law originates from human reason, which is an expression of human thought as to whether a human behavior is considered good or bad, whether a human action can be accepted or rejected based on natural morality. Because the assessment of human behavior towards one another must be based on that natural morality.
The natural law that humans find thanks to their rational activities is regarded by Grotius as a law that applies in reality just like positive law. In this case, Grotius follows the Scholastic tradition. However, he deviates from the Scholastic view by asserting that natural law remains in force, even if God does not exist, because natural law is part of human reason as part of its essence. On the other hand, Grotius still acknowledges that God is the creator of the universe. Therefore, indirectly, God remains the foundation of natural law.
Thus, Grotius also acknowledges that in addition to natural law that originates from human reason, there is natural law that originates from God's reason, for example, that found in the Holy Book. Regarding this, Apeldoorn sees that Grotius is inconsistent with his opinion. In "De Jure Belli ac Pacis", Grotius says that God is the creator of the universe. So the doctrine of natural law is also indirectly God's creation.
Grotius put forward the first rational principle in the field of law, which is that everyone has a tendency to live together with other people peacefully. This tendency exists in humans regardless of their will. Therefore, this tendency can become the objective basis of all law.
In connection with this principle, Grotius put forward four principles that are the pillars of the entire system of natural law, namely: a) the principle of mine and yours. Other people's property must be protected. If borrowed goods bring profit, that profit must be rewarded; b) the principle of fidelity to promises; c) the principle of compensation, namely if the loss is caused by the fault of another person; and d) the principle of the need for punishment for violations of natural law and other laws. These four principles are found a priori as principles of all law. However, these principles can also be found a posteriori, namely as a reality in all civilized nations.
Furthermore, Grotius divides the doctrine of natural law in a narrow sense and in a broad sense. In a narrow sense is the real law because it creates rights to demand, to be given what belongs to it (facultas). The justice that applies in this area is the justice that repays it (author: commutative justice). Meanwhile, natural law in the broad sense is law that does not create legal rights, but only a right in the form of appropriateness (aptitudo). The justice that applies in this area is the justice that gives (author: distributive justice).
Regarding the relationship between the doctrine of natural law and positive law, Grotius argues that positive law is the law that applies in a country because it is approved and ratified by the authorities. This (positive) law must not contradict natural law, that is, it must not command something that is prohibited by natural law. However, natural law as a limit to positive law can be exceeded if required by the public interest of the state.
In contrast to Grotius, Thomas Hobbes did not accept the tendency for humans to live together. According to Hobbes, humans since ancient times have been entirely controlled by natural passions to fight for their own interests. Because in the original situation there were no norms for living together, primitive people had rights to everything. Thus arose what Hobbes called bellum omnium contra omnes, man becomes a wolf to other men (homo homini lupus).
Over time, people began to realize the advantage of securing their lives by creating a rule of living together for all people belonging to the same group. To achieve such a rule, everyone must surrender their original rights to everything and must obey several natural tendencies which Hobbes called natural laws (leges naturales).
These natural laws are not laws in the true sense, but are only instructions that must be followed if the goal is to be achieved, such as the instructions seek peace, surrender your original rights, treat others as you want others to treat you, and keep your promises.
The importance of the principle that promises must be kept is most striking in an agreement that Hobbes calls the original contract, namely the agreement of people in a group to form a communal and orderly life. This original social agreement is the origin of the state.
The Doctrine of Natural Law in the Age of Enlightenment
John Locke, like Hobbes, also explains the emergence of the state and law by describing the situation in primitive times. However, Locke was an opponent of Hobbes' theory of absolutism, by putting forward a theory about inalienable individual rights.
In primitive times, people lived according to the teachings of natural law. Natural laws cover various fields, namely the fields of life, health, freedom, and property. In the field of life, people have the right to life, in other fields they have the right to health, the right to freedom, the right to property and the right to be an heir. Violations of these rights can be punished by each individual, because at that time each person had the executive power of the law of nature.
At one time, primitive people transitioned from a state of nature to a civil state. With the transition of humans to a civil state, primitive natural law did not disappear. That law remains in effect, including in relations between states. The proof is that all contracts are only valid based on a principle of natural law: promises must be kept (keeping of faith).
However, in order for the state to function as a guardian of the law, people need to surrender some of their primitive rights to the state, namely the exercise of the right to punish personally. Since the establishment of the state, it is not the people who are in charge of ensuring that individual rights are maintained, but the state and the rule of law. Thus, the purpose of the state is none other than to guarantee the individual rights of the people. The state does not have the power to revoke the natural rights of individuals.
John Locke mentioned that there are three powers of the state, namely legislative, executive and federative. The highest power is the legislative power. Because that power is the highest, in forming laws the government only has to submit to natural law. Legislative power is not only found in the state. A group of people can make laws for their coexistence.
But that law only becomes valid as law because of the legislative power of the state, which is able to determine sanctions if the law is violated. However, on the other hand, the legislative power of the state government is limited, because the people have power that exceeds the legislative power.
The people have the right to regain their original freedom if the government abuses its power by acting against the purpose of the state. That power is bound by natural law, which remains with the people. Thus, John Locke's theory of natural law contains a revolutionary tendency: if certain conditions are not met by the government, revolution is permitted.
In his book De l ‘Esprit de Lois, which was later translated into English as The Spirit of Laws, Montesquieu stated that before all these laws existed, there was already natural law. This natural law applies fully in the existence of our own being. To obtain perfect knowledge of this law, we must imagine humans before the formation of society: the laws that prevail in that state are the natural law.
The most important, though not the first, of the laws of nature is the law that is imprinted in our minds that has been made by the Creator so that we are inclined to it. Humans in a natural state have the ability to know before they gain knowledge acquired from learning. Of course, his first ideas are by no means speculative ideas; he thinks to maintain his survival before he investigates his origin.
Montesquieu proposed generations of natural law teachings, which originated from the natural state of humans. In their natural state, humans feel helpless and weak, with excessive fear and anxiety, so in that condition, they are unlikely to attack each other; thus, peace is clearly the first law of nature.
Besides this feeling of weakness, humans soon find that they have needs. From here, another law of nature drives them to seek food. In addition to fear making humans avoid each other, this fear also encourages humans to live in groups. In group life, attraction arises between humans of different sexes, and this natural tendency they have towards each other is the third law of nature. Meanwhile, the fourth law of nature arises from the desire to live in society.
In his book De l’Esprit des Lois (1748), Montesquieu often presents himself as a defender of natural law. Nevertheless, he places more emphasis on the historical evolution of diverse national legal orders; each nation has its own laws, formed from its past circumstances, customs and morals, as well as by its surrounding natural environment (geographical environment, climate, etc.). In this matter, he deviates from natural law, stating that the laws of all nations consist of a number of rules inspired by Reason and therefore universally valid and immutable, which he wants to elaborate according to the “nature of all things” in this world.
Nevertheless, Montesquieu still sees a close relationship between natural law and the concrete situation of a nation. Natural law is a law that applies to humans as humans. But how natural law is concretized in the form of state and law depends on the historical, psychological, and cultural situation of a nation. Thus, the best law is the law that is most suitable for a particular nation.
In contrast to Hobbes, Locke, and Montesquieu, Jean Jacques Rousseau does not speak at all about a natural law in primitive humans. Natural law is only found in people who have entered civil society. Through the social contract, humans receive validation of their rights as humans, both morally and legally. The social contract that gives rise to civil society originates from the will of all people who all want to realize their individual ideals.
But after the emergence of a new society, individual ideals are replaced by general ideals, which originate from a new will, namely the general will (volonte generale), which then gives rise to the general purpose, namely the common interest. So, if in a particular society laws are formed that do not reflect the common interest, because their validity is not the same for everyone, then those laws must be considered unjust.
Immanuel Kant had a different view on natural law. According to him, the doctrine of natural law is none other than the law of cause and effect, which determines nature deterministically. The background of Kant's view is the separation between the realm of 'being' and the realm of 'ought', the realm of theoretical reason and the realm of practical reason. The principles of the rule of law belong to the realm of practical reason, and therefore are autonomously binding.
However, the rule of law itself belongs to the realm of theoretical reason, because it is experienced as a natural phenomenon. In this theoretical realm, there is no obligation. Only the laws of nature apply here. If law belongs to nature, and is therefore outside the realm of morality, then it can be understood that violence and threats may be used to maintain the rule of law.
By enforcing the rule of law in this way, moral rules are also indirectly supported. According to Kant's philosophy, laws must be formed based on the general principles of law, as captured by practical reason. State regulations are concretizations of these general principles. Thus, he asserts that law only becomes law because it originates from those who have the right to form law, namely the government.
The Doctrine of Natural Law according to the Neo-Kantian View
Some of Kant's followers, known as Neo-Kantians, such as Hans Kelsen and Rudolf Stammler, expressed different opinions regarding natural law. In explaining legal regulations and natural law, Hans Kelsen stated that legal regulations are the logical form of the law of nature. Like legal regulations, natural law also connects two facts to each other as conditions and consequences. What is meant by condition here is "cause", and consequence is "effect."
The fundamental form of the law of nature is the law of causality. The difference between legal regulations and natural law seems to be that legal regulations refer to humans and their actions, while natural law refers to objects and their reactions. However, human actions can also be the subject of natural law as long as human actions are also included as natural phenomena. The principle used by (natural) science in describing its objects is causality, while the principle used by legal science in describing its objects is norms.
In contrast to Kelsen, Stammler arrived at a concept of natural law that is not eternal. This is because the basis of his natural law is human need. Because these human needs change over time and place, the resulting natural law also changes over time and place. Stammler argued that the fairness of a law lies in whether or not it can meet human needs.
The Doctrine of Natural Law according to Mochtar Kusumaatmadja
Mochtar Kusumaatmadja stated that law is related to human life in society, not law in the sense of exact and natural sciences whose object is inanimate objects. In positive law, the object being regulated is also the subject (actor). This has important consequences for its scientific method and explanation of cause and effect (causality). Positive law, which is the object of positive legal science, is not as definite as the laws of natural science. As a science that studies positive law as a set of rules that govern humans and society, it is not governed by the scientific method of exact and natural sciences, but by the scientific method of the humanities.
Positive law that regulates the behavior of humans, who are not inanimate objects but living beings with thoughts and the ability to distinguish between good and bad (ethics), has consequences not only for its scientific method but also for causality. From Mochtar Kusumaatmadja's explanation, it is clear that he sharply distinguishes between positive law and natural law, and what is most important according to him for humans is positive law.
Conclusion
Natural law is a law that applies universally and eternally. Some of this natural law comes from God and some comes from human reason. This is what distinguishes natural law from positive law, where the existence of positive law depends on the will of human beings. In other words, there is an order and a desire to follow that order, as well as sanctions from society if the law is not obeyed.
When society lives in a state, state institutions become the highest authority in the formation and enforcement of legal rules through sanctions that have coercive power. Thus, positive law can be formulated as law that applies in a certain place and time where its formation and enforcement is highly dependent on the will of the ruler or the state.
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