A.A.

BOROKINI
NATURAL LAW

Introduction
The origin of natural law is traceable to the writing of
Greek and Roman philosophers. The naturalists were principally
concerned with ideas of justice, morality and what the law
"ought" to be. Natural law was assailed by positivism and
historical school but it was later revived in the 19 th and 20th
century!4 Under this paper we would examine the meaning of
natural law, its origin, reasons of its revival and the current
state of natural law in the 20th and 21st centuries.

What Is Natural Law (NL)

The term natural law1 means several things to different
people. According to D'Entreves2 the relationship between law
and moral is the crux of all natural law theory. The precept of
natural law according to T. Aquinas 3 is to _do good and avoid
evil. H. Grotius4 adds that the law of nature is the dictate of
reason. It is also stigmatized by Alf Ross 5 as an harlot at the
disposal of everybody). From the various theories of N.L. 5
leading principles emerges:
(1) N.L. is a set of ideals which guide legal development
(2) N.L. represents a basic moral quality in law which prevent
a total separation of “is” from the “ought”.

1
See Brian Brix, Jurisprudence Theory And Content, 4 th Edition p. 25, pp. 31-53; M.D.A. Freeman, Llyods
Introduction to Jurisprudence, 7th ed. Chapter 3
2
A.D. ’Entreves, Natural Law (rev. ed: 1970)
3
T. Aquinas, Summa Theological (Translated, J.G. Dawson
4
Q. Skimmer, Machiavelli (1981)
5
A. Ross, On Law and Justice (1958)
(3) N.L. is the method of discovering perfect law deducible by
reasoning
(4) N.L; is conceived as the necessary condition for the
existence of law
(5) N.L. is a set of basic methodological requirement of
practical reasonableness.

Origin of Natural Law

The history of N.L. has been described by Friedman as the
search by mankind for absolute justice and its failure and this
history span a period of 2,500 years. Finnis 6 argued that there
is “stricto sensus” no history of N.L. illustrating his rise, decline
and revival but a history of theories, opinion and set of opinion
on N.L. - these theories, opinions and set of opinions are usually
categorized into 4 periods.

First Period
Early Greek philosophers who are either “materialistic” or
“idealistic” while the materialistic believed that in the
beginning there was “matter” and that N.L. regulates the
relationship between “animate” and “inanimate” things the
idealistic derived N.L. from idea or “human reason”.
For Socrates7 “just” meant that a man must do his work in
his status in life to which he was called by his capacity. It
logically follows that the son of a farmer must be a farmer but
Plato8 adopting the idealist approach appreciated the
differences in human personality. He also realized that it was
6
J.M. Finnis, Natural Law and Natural Rights )1980)
7
Plato’s The Crito
8
Plato, The Republic
possible for a man educated in philosophy to attain a vision of
the perfect realm and contended that an ideal state must be
ruled by philosopher kings.
Aristotle9 (384BC - 322BC) rejected the idealist philosophy
of his master Plato. To him a man partakes of nature in two
senses (1) as God's creature (2) as a rational being, that is,
someone endowed with "reason" and having his own “will”.
Man he said is the best of all animals in his perfection but if he
is isolated from law and justice the worst of all animals. He,
therefore, advocated the “rule of law” and the application of
“equity”. Aristotle's perception of man as God's creature and a
rational being fired the imagination of the Stoics 10 led by Zeno
(350BC - 260BC). To Zeno the whole universe consisted of one
substance "reason" which they argued pervaded the whole
universe and was the basis of law and justice. The stoicism
passed over to and influenced Roman thought in the second
period.

Second Period
In this period the Romans captured the Stoic's conception of
N.L. and translated it into practical rules. By the conception of
“nature based on reason” Roman jurist transformed the rigid Jus
Civile to cosmopolitan jus gentium fit for the whole world.
According to Cicero11 (106BC - 43BC) N.L. is the “right reason in
agreement with nature”. He was the first natural lawyer to
advocate the striking down of positive law not in conformity
with natural law. The Roman jurists contended that if positive
9
Aristotle,Nocp,acjeam Etjocs ,
10
On Stoic’s Philosophy generally see Brian Brix, p. cit. CAP 5.
11
Cicero Republic (C.W. Keyes, transl, Harvard V.P., Cambridge, MA/, 1928)
law (jus civile) conflicted with N.L. (jus naturale) then the
positive law is invalid and of no effect whatsoever. N.L. also
contributed to the growth of jus gentium (Law of Nation).12 One
great example of influence of N.L. among Romans is the
development of jus gentium - this was the body of law developed
by the Romans for the Empire for only one reason because
foreigners were not subject to jus civile i.e. positive law of Rome.
The only solution was to construct another law for them known
as jus gentium which was a kind of international law administered
by special magistrate.
It must be recognized that the jus civile and jus gentium are
different and one of the most important differences was the
issue of slavery. With reference to the law of nature in Rome
means that the Romans based their jus gentium on high
philosophical notion of idea of juste then it can be submitted
that it is not feasible that a people who hold so strongly in
Rome and for whom absolute dominion was the ultimate aim
should suddenly activated by sudden philosophical notion of
high ideals of justice. It does not seem possible that a people
whose life was based on inequality and whose practice of
slavery was so highly developed should become awaken by
lofty ideals and abstract idea. Hence Prof. Whitehead 13 in “The
Advantages of Ideas” has said correctly that to the Roman
minds for a thousand year of classical civilization "to be
civilized was to be a slave-owner”. It cannot be over
emphasized that the concept of slavery is against N.L. and the
life style of Romans does not seem to agree with natural law.

12
For a detailed analysis of Jus Gentium see M.D.A. Llyod;s Jurisprudence, op, cit. pp. 104-105
13
[Link], The Advantages of ideas
Third Period
This is the medieval time the time of the church fathers. Here
the idea of unity derived from God and the supremacy of law
dominated the medieval catholic ideology. St. Thomas
Aquinas14 (1226 - 1276) defines law as an “Ordinance of
reasoning for the common good” made by him who has the
care of community and promulgated. He identified four
different laws: (1) Eternal (2) Divine (3) Natural (4) Positive law
which derived its validity from N.L.
For Aquinas “reason” is superior to “will” and an objective
system of value is derived from divine reason. However, two
Franciscan Monks: Don Scotus (1265-1308) and William of
Occam (1270-1349) anticipating Hume15 asserted the
independence of “will” from “reason”. They argued that to love
and to hate, to do good or evil means of necessity that the will
is independent of reasoning. This paved the way for the
philosophy of absolute sovereignty of Hobbes 16, Machiavelli,17
Jean Bodin18 and Adolf Hitler.19
The work of Aquinas was developed in the 16 th century by
two Spanish Jesuists: Francisco Suarez in “De Legibus” ad
Francisco De Victoria.

Fourth Period

14
T. Aquinas, op. cit.
15
D. Hume, A Treatise of Human Nature (1977 ed.)
16
Sean Coyle, “Thomas Hobbes and the Intellectual Origin of Legal Positivism”, 16 Canadian Joural of Law and
Jurisprudence 243 (2003)
17
Niccolo Machiavelli, The Prince (1513)
18
Jean Bodin, Six Books of the Republic (ed. Tooles)
19
Adolf Hitler, Mein Kampf (1943 ed.)
 This is the Renaissance and Reformation Period. During
this period N.L. theorizing began to take a secular cast. Natural
law though eclipsed did not go under this secularization of
natural law is usually ascribed to Grotius 20 who asserted that
N.L. would subsist even if God did not exist. He saw
government resting on social contract and established a
system of International Law to regulate the affairs and warfare
of rising nation States. Hugo Grotius used the social contract for
a two-fold purpose (1) Internally, used for the justification of the
absolute obedience of the people to the government and (2)
Internationally, to create a basis for a legally binding and stable
relationship among the states. He argued that all governments
originated in contract which men formerly living in a state of
nature agreed to surrender their liberty to a sovereign whose
law they were prepared to obey in return for protection and
security because in a state of nature they were insecure and
absolutely insecure.
In the hands of Thomas Hobbes21 (1588 - 1649) the soda
contract theory assumed a much more militant form. He
believe that man’s life in nature is a state of fear or selfishness
- man's life was solitary, poor, nasty, brutish and short. Man
before the social contract (hereby called SC) was a stage of
miserable insecurity and the firs principle of natural life was a
search for self preservation. To escape in this lawless state,
men entered into a SC by surrendering their sovereign right to
a sovereign who was to guarantee the preservation of rights.

20
See f.n. 4
21
See f.m. 16
 John Lock22 (1632 - 1704) based his legal theory on SC but
his own idea was different from that of Hobbes. To him a state
of nature was not one of anarchy as Hobbes maintained but
instead was a happy and glorious or a glorious era. To him
there was only one snag and this was insecurity of property.
This to him was the major reason why individuals abandon
state of nature for the social contract. Under this contract man
surrenders his liberty to a sovereign but before that surrender
he retain some “inalienable rights” like that of liberty and life
and to him the purpose of all government was to protect this
right and when man-made laws encroach on these inalienable
rights then such laws lose their validity and government may
be overthrown.
J.J. Rosseau23 (1712 - 1778) The protection of the
individuals against the power of the sovereign reached the
climax under the theory of Rosseau. To him each individual was
not subject to any individual but to the “General Will”. For an
individual to obey the General Will was to obey himself because
he is part of the general will. Governments and laws are both
independent of general will, subsequently, the positive law
must at all times reflect the genera will and government is only
tolerated when this general will is only reflected.
Samuel Puffendorf,24 a German law professor adopted a
contractarian approach he argued that men agreed to abandon
the state of nature and live under a permanent community and
government guarantee their mutual safety. To him the contract
between the ruler and the ruled which binds the ruler to take
22
John Locke, Essays on he Law of Nature (1954 ed.); John Locke, Two Treatises on Government (1690)
23
Michael Lessnoff ed., Social Contract Theory (1990 ed.)
24
Ibid.
care of the ruled while the latter subject their will to the
authority. However, whenever the ruler had become the enemy
of the country the people may defend their safety.

Natural Law The Higher Law

According to natural lawyers the law must have a
minimum dosage of morality and justice. A law that is
completely amoral is no law. So also the ultimate goal of the
law is the promotion of justice. Therefore an unjust law is no
law. Positive law or man-made law must bow down to a higher
law and if there is a conflict between the two the latter prevails.
According to Thomas Aquinas:25
... the force of a law depends on the extent of
its justice ... according to the rule of reason.
But the first rule of reason is the law of
nature ... consequently, every
human law has just so much of the nature of
law as it is derived from the law of nature.
But if at any point it departs from the law of
nature, it is no longer a law but a perversion
of law.

According to Aquinas positive law is just when it serves

the common good, distributed burdens fairly, promoted religion
and were within the bounds of the law-maker’s authority.

The Decline of Natural Law

From the middle of the 19 th century natural law suffered
an eclipse and several reasons were responsible. Firstly,
historians and sociologists whose researches have exploded the
mythical nature of social contract. Secondly and most
25
T. Aquinas, Summa Theologica, op. cit.
importantly the assault on natural law by both positivism and
the historical school but most especially the former school. The
positivism school arose. principally as a reaction to naturalism.
Legal positivism is directly and radically opposed to natural law.
Legal positivism is a theory that legal rules are valid only
because they are enacted by an enacting political authority or
accepted as binding in a given society not because they are
grounded in morality or in natural law. D. Hume for instance
argued that one cannot logically derive an “ought” from an
“is”.
However, natural law was revived again especially
immediately after the Second World War. Why? This is due to
several factors. During the Second World War a lot of barbarity
and atrocities were committed like gross violations of
Fundamental Human Rights. Secondly the proliferation of
totalitarian regimes enacting obnoxious laws that are contrary
to human values. As a result of this some modern thinkers
revived natural law and gave it a new flavour. 26

The Revival of Natural Law

R. Stammler27 (1856-1938) propounded the idea of
“natural law with a variable content”. Law according to
Stammler is necessary apriori because it inevitably implied in the
idea of cooperation. The idea of law is the application of law in
the realization of justice, the specific content of a rule of
positive law will vary from place to place and from age to age.

26
On revival of natural law generally, see Hilaire McCoubrey and N.D. While, Textbook on Jurisprudence (3 rd
ed.); The Naturalist Revival, Chapter 5. See also M.D.A. Freeman, Lloyd’s Jurisprudence, op. cit. pp. 123-139
27
See J. Stone, Human Law and Human Justice (1956 ed.)
It is this relativity that has earned the theory the name of
natural law with a variable content.
H.L.A. Hart28 a leader of contemporary positivism had
attempted to re-state natural law position from a semi-
sociological point of view. In his book: “Concept of Law” 29 he
argued that there are certain rules which any social
organization must possess and that facts of human nature
affords a reason for postulating a minimum content for natural
law expressed in five truisms: (1) human vulnerability (2)
limited altruisms (3) approximate equality (4) limited
understanding (5) strength of will.
Hart’s minimal content of the law had been assailed by
several jurists - John Farrah30 had argued that truisms like
approximate equality and limited understanding are inherently
controversial and their status as truisms is ambiguous. Lloyd
and Freeman31 argued that Hart did not even seem to suggest
that even if his analysis of human society was accepted it must
necessarily lead to a system of minimal justice. McCormick32
argued that there are striking omissions from the list of truisms,
that is, it is not exhaustive. Under “approximate equality” there
is no system of natural law or justice than can be based upon
the principle of impartiality or treating like case alike. Despite
the criticisms above the thesis of H.L.A Hart is one of the
revivals of natural law.

28
H.L.A. Hart; The Concept of Law (1961 ed.)
29
Ibid.
30
John Farrah, Introduction To Legal Methods
31
M.D.A Freeman, op. cit.
32
Neit McCormick, H.L.A.. Hart, (1981 ed.)
 John Rawls33 in his “Theory of Justice” did not deal with
natural law as such but in so far as his scheme is based on
“reason” and “social justice” it is naturalistic in conception.
Rawls’ Theory of Justice is anti-utilitarianism, anti-meritocratic,
anti-perfectionism but neo-Kantian. Rawls said that it is at the
original position (a state of amnesia) that the following
principles of justice can be evolved:
(1) Social and Economic Goals must be made available to all
(2) Difference Principle: those who are disadvantaged or
worse off must be compensated.
There are two trenchant criticism leveled against
naturalistic concept of justice; firstly, the original position is not
neutral. Secondly, why should we resolve to this counter factual
method i.e. the Rawlsian method, that it, this original position
and forget out our interest.
However, despite this argument there is a basic problem,
confronting humanity and it is universal in all society: the
problem of inequality and distribution of wealth. According to
Rawls:34
All social values - liberty and opportunity,
income and wealth, and the bases of self-
respect - are to be distributed equally
unless an unequal distribution of any, or all,
of these values is to everyone’s advantage.

The thesis of John Rawls is known as the contract theory of

justice.
ROBERT NOZICK35 a student of Rawls assailed Rawls,
Theory of Justice by propounding what he called the
33
John Rawls, A Theory of Justice (1971 ed.; rev. ed. (1999)
34
Ibid.
35
Robert Nozick, Anarchy, State and Utopia (1974 ed.)
“Entitlement Theory of Distributive Justice”. Nozick argued that
for a person to be entitled to something one of the three
principles he propounded must be adhered to: (1) Principle of
“Just Acquisition” (2) “Just Transfer” (3) “Principle of
Rectification”. He advocated the minimal state, that is, a via-
media between the night watchman state of the classical liberal
theory and a Protection Association, that is, a state that protect
property, life and limb and leaves the rest to private
organization.
Nozick also query the monopoly of force of the States and
its security and protection duties. He argued:
These very ways in which the dominant
protective agency or association in a territory
apparently falls short of being a state provide
the focus of the individualist anarchist’s
complaint against the State. For he holds that
when the State monopolizes the use of force
in a territory and punishes others who violate
its monopoly, and when the State provides
protection for everyone by forcing some to
purchase protection for others it violates
moral side constraints on how individuals
may be treated. ... the State itself is
intrinsically immoral.36

However, J.M. Finnis,37 however, rallied round J. Rawls to

protect him from R. Nozick. Finnis said Nozick laid undue
emphasis on the State's monopoly of violence and that if we set
this aside and pose a question to Nozick as to whether re-
distribution would have been just without the undue emphasis
on monopoly violence there is no answer in Nozick's theory of
justice. One can safely conclude that there is no country in the
36
Ibid. pp. 51-53
37
John M. Finnis, Natural Law: The Classical Tradition
world without re-distribution of wealth which can be in form of
taxation.
LON FULLER38 rejected the Christian theory of natural law
but embraced Aristotle’s theory. The core of his thesis is a
necessary condition for functioning of law. To him “Law is the
enterprise of subjecting human conduct to the governance of
rule”. Fuller is concerned with the totalitarian abuse of law
especially under the Nazis he therefore propounded
“procedural naturalism”, that is, the procedural structure of a
legal system. In his The Morality of Law he considered the
relationship between law and morality he consequently
advocated the “morality of aspiration” and “morality duty”:
these two also correspond to external morality of law and
internal morality of law respectively.
The internal morality of law which means appeal to
external morality but it is only a procedural version of natural
law, it is the morality that makes the governance of human
conduct by rules possible. He went further by stating that a
judge may stay neutral with external morality but not with
internal morality the content of which consists of eight
desiderata of the law. He further distinguished between the two
moralities as follows:
The morality of aspiration ... is the morality of
the Good Life, of excellence, of the fullest
realization of human powers ... Where the
morality of aspiration of human powers ...
where the morality of aspiration starts the at
the top of human achievement, the morality of
duty starts at the bottom. It lays down the
basic rules without which an ordered society is
38
Lon L. Fuller, The Morality of Law (1969 ed.)
 impossible, or without which an ordered society
directed toward certain specific goals must fail
of its mark.39

According to Professor L. Fuller the morality of aspiration

is the maximum goal, goal of excellence and perfection. The
morality of duty on the other had is the minimum goal or
standard and failure to achieve is not only a lapse but a wrong
and the legal system cannot achieve a viable social order.
As part of the morality of duty Lon Fuller also advocated
the criteria of law making the so called eight desiderata which a
lawmaker must comply with: Generality; Promulgation;
Prospectivity; Intelligibility; Non-Contradiction; Possibility of
Obedience; Constancy through time; Congruence between
official action and declared rules. 40 The internal morality is pre-
condition of good law.
The next pertinent question is whether the inner morality
of the law or eight desiderata of lawmaking compatible with
iniquity. In other words is procedural morality compatible with
an unjust substantive law. Professor Hart answered in the
affirmative. He argued that King Herod's order to kill children
from aged two downward is compatible with the eight
desiderata. Fuller conceded that the procedural morality may
not completely eliminate iniquitous laws but at the same time
argued that it is doubtful whether an evil ruler can continue to
pursue iniquity and conform to respect inner morality.
According to him:
... I treated what I have called the internal
morality of law as itself presenting a variety of
39
Ibid. pp. 5-6
40
Ibid. p. 39
 natural law. It, is however, a procedural or
institutional kind of natural law, though ... it
affects and limits the substantive aims that
can be achieved through law.41

He also added:
... an acceptance of this (internal) morality is
a necessary, though not a sufficient condition
for the realization of justice ... this morality is
itself violated when an attempt is made to
express blind hatreds through legal rules,
and ... the specific morality of law
articulates ... a view of man’s nature that is
indispensable to law and morality alike.42

JOHN FINNIS43 propounded a rational theory of law which is

not a rival of the positivist theory but rather compliments it. He
embraced the insight of positivism and transcended it. He
relied heavily on Aristotle and St. Thomas Aquinas. To him
natural law is the set of principles of practical reasonableness
in ordering human life and community. He posited that human
beings have some basic goods which human beings value. He
identified the seven “basic form of human good” as follows:
(1) Life. It includes capacity for development of potentials,
preservation and procreation
(2) Knowledge. It must improve the quality of life.
(3) Play. The capacity for recreational experience and
enjoyment
(4) Aesthetic Experience
(5) Sociability or Friendship

41
Ibid. p. 184
42
Ibid p. 158
43
J.M. Finnis, Natural Law and Natural Rights (1980 ed.)
(6) Practical Reasonableness. The capacity to shape one's
conduct and attitudes according to some "intelligent and
reasonable" thought process.
(7) Religion.44
He argued further that these objective goods are self-
evident in all societies and he further said if you accept these
basic goods then you must accept the “uncaused cause” or
“prime mover”.
On the issue of “unjust law is no law” (lex injusta Non est
lex) Finnis said the statement is pure nonsense and flatly self
contradictory. He denied that Aquinas never made such a statement
but if he even made it there would have been no difference. He
maintained that naturalist only focused on “lex injsuta” which can
be re-phrased as “what is utterly immoral cannot be law” or certain
rules cannot be law because of their moral iniquity” or "these evil
things are not law" or "nothing iniquitous can anywhere have the
status of law" or “morally iniquitous demands (are) in no sense law"
or that “there cannot be an unjust law”45. To him the principal
concern of a theory of natural law is to explore the requirements of
practical reasonableness in relation to the good of human beings
who because they live in community are confronted with problems
of justice, rights, law, authority and obligation. The ultimate basis of
a ruler’s authority is that he has the opportunity and responsibility of
furthering the common good by providing solutions to society's
problems.
He, however, cautioned that disobeying even a bad law may
cause dissatisfaction in the legal system and that there may

44
Ibid. pp. 86-89
45
On other theorists on “Lex Injusta Non Est Lex” see Hart, Dworkin, A.C. Danto
therefore be a "collateral obligation to obey such a law
notwithstanding its immorality because of its damaging incidental
effects of disobedience.
Finnis also developed a thesis of natural rights. According to
him it is wrong to make a choice directly contravening any of the
basic good and one has a duty to respect these goods - this is the
origin of human rights. Rights are derived from basic goods. The
rights are:
(1) not to be deprived of life as a direct means to an end
(2) not to be deceived in the course of factual communication
(3) not to be condemned upon charges which are known to be
false
(4) not to be denied procreative capacity
(5) to be accorded ‘respectful consideration’ in any assessment of
the common good46
DERYCK BEYLEVELD47 AND ROGER BROWNSWORD48 are
modern naturalist they advanced a theory based on morality and
they denied the positivist view that law and morality are inherently
separate. According to them the duty to obey the jaw relate directly
to its moral quality:
Laws, for us, are morally legitimate prescriptions
under the (principles of a generic consistency)
and they straightforwardly generate legal moral
obligations.49

According to them there is a moral obligation to obey the law

and when a law is both moral ;and clearly identified obligation to it

46
J.M. Finnis, op. cit. p. 225
47
Deryck Beyleveld and Roger Brownword, Law as a Moral Judgment (1986 ed.)
48
Ibid.
49
Ibid. p. 325
will be full. They also contended even if a law fails to comply with
morality possibility of obligation still exists and there can be four
instances:
(a) on internal collateral obligation to obey a ‘provisionally legal’
prescription;
(b) an internal obligation to obey ‘subjectively legal’ rule believed
by an official to be valid until its standing has been formally
determined;
(c) an external collateral obligation to obey lest disobedience
injure the social structure; and
(d) an ‘external synthetic collateral obligation’ to obey where
compliance would better promote the legal and moral order
than would disobedience50.

The Revival of Natural Law In The 19th and 20th Century:

The Emergence of Revolution and Human Rights
Human rights movements is a recent phenomenon however,
he concept itself is very old. Human rights owed its origin to Nature
rights while natural rights owed its origin to natural law. Henry
Campbell Black51 defines natural law as:
... a condition of society in which men universally
were governed solely by a rational and
consistent obedience to the needs, impulses,
and prompting of their true nature, such nature
being as yet undefaced by dishonesty,
falsehood, or indulgence of the baser passions52.

He further defined natural rights as:

50
Ibid. o. 373
51
Black’s Law Dictionary (5th ed.) p. 925
52
Ibid.
 ... those which grow out of nature of man and
depend upon his personality and are
distinguished from those which are created
by positive laws enacted by a duly
constituted government to create an orderly
civilized society.53

The theory of human rights could be found in writings of

philosophers like Aquinas, Locke, Rosseau and Montesquieu.
Natural layers argued that rights are innate and a violation of it
will constitute an affront to one’s sense of justice. Furthermore,
the State is not the giver of rights rather God is the giver of
rights and rights even predated State. On June 15 1215 the
Magna Carta (The Great Charter) was granted by King John it
was later confirmed by Parliament under Henry III and Edward
1. The Charter has been described as the foundation of English
constitutional liberty, sowing of seeds of liberty, regulation of
administration of justice, securing the personal liberty of
subjects and his rights and liberty, limits of taxation and for
preserving the liberties and privileges of the church 54.
A step forward was also taken under Charles II when the
Habeas Corpus Act was proclaimed in 1679. Sir William
Blackstone described it as “the most celebrated writ in English
law. In 1689 there was a Glorious Revolution in England. The
Revolution saw the promulgation of Bill of Right 1689 and the
Habeas. Corpus Act was incorporated into it. The Bill of Rights
limited the powers of the Monarchy and expressly provided for the
Powers of the Parliament and that of the Monarchy. Britain did not

53
Ibid.
54
Edwin Shorts and Clair de Than, Human Rights in UK (2001 ed.) p. 3; Black’s Law Dictionary, op. cit.
have another Bill of Rights until 300 years later when the 1998
Human Rights Act was promulgated55.
The Magna Carta, the writing of Locke and Rousseau
influenced the American Declaration of Independence when the 13
British (American) Colonies fought a bitter war of independence with
Britain their colonial master which they won. They therefore relied
on natural law, the Magna Carta, Locke and Rousseau and declared
The American Declaration of Independence, 1776 drafted by
Thomas Jefferson. The Declaration profoundly proclaimed:
We told these truths to be self-evident, that all
men are created equal, that they are endowed
by their creator with certain inalienable rights,
that among these are, liberty and pursuit of
happiness. That to secure these rights
Governments are entitled among men deriving
their just powers from the consent of the
governed; that whenever any form of
government becomes destructive of these ends,
it is the right of the people to alter or abolish it
and institute new government, laying its
foundation on such principles and organizing its
powers in such form, as o them shall seem most
likely to effect their safety and happiness56.

Natural law and the American Declaration of

Independence also influenced the French Revolution of 1789.
The French Third Estate comprising peasants, workers, soldiers,
sailors, professionals and industrialists initiated a revolution
which led to the assassination of the King and the overthrow of
the monarchy. The Revolution was fought under the banner of

55
Human Rights Act, 1998 promulgated by the Parliament under the Government of Prime Minister
Tony Blair
56
American Declaration of Independence, 1776, See also H.C. Commanger (ed.), Documents of American
History (1948 ed.).
liberty, equality and fraternity. The French Declaration of The
Rights of Man and of the Citizen of 1789 proclaimed:
In the presence and under the auspices of
the Supreme Being, the following rights of
man and citizen:
Men are born and remain free and equal in
respect of rights ... The purpose of all civil
associations is the preservation of the natural
and imperescriptable (sic) rights of man.
These right are liberty, property and
resistance to oppression57.

The French Declaration of 1789 led to the 1793 French

Constitution and it was the first constitution to protect the right
to work when it declared:
Society owes subsistence to its unfortunate
citizens either by giving them work or
assuring them the means to exist if they are
incapable of work58.

When people are under bondage and yoke they would cry
to God and natural law for salvation and God will hear their
prayer. In the Old Testament both the people and the Prophets
appealed to justice and God on several occasions and their
prayers were answered. A classic example was the case of the
people of Israel when they were slaves in Egypt. They were
forced by their Egyptians taskmasters to manufacture bricks
without straw. The people cried to God for deliverance and God
raised Moses who went to Pharaoh Lo claim liberty for his
people.59 Prophet Isaiah also warned dictators and oppressors

57
The French Declaration of The Rights of Man and of The Citizen, 1789
58
1793 French Constitution, For a comprehensive history of both the American Declaration of Independence
and the French Declaration see M.O.U, Gasiokwu, Human Rights: History Ideology and Law (2003 ed).
59
Moses told Pharaoh: “This what the Lord, the God of Israel says” “let my people go, so that they may hold a
festival to me in the desert. Ex. 5:1 (Holy Bible NIV Translation).
of the people he said "woe t those who make unjust laws, to
those who issue oppressive decrees"60.
It is also noteworthy that after the progrom of the Igbos in
northern Nigeria Lt. Col. 0. Ojukwu declared on 30 th May 1967
the Biafran Declaration of Independence seceding Igboland
from Nigeria. The Biafran Declaration is similar in tone with the
American Declaration and it was an appeal to natural law,
justice and God; Lt. Col. Ojukwu declared:
Fellow country men and women, you the
people of Eastern Nigeria, conscious of the
supreme authority of Almighty God over all
mankind, and of your duty to yourself and
posterity, aware that you no longer be
protected in your life and property, by any
government based outside Eastern Nigeria ...
hereby proclaimed on your behalf the
Republic of Biafra61.

The emergence of Nazi regime in Germany, the fascist

regime of Mossolini in Italy and the war monger government of
Japan and the horrors they perpetrated during the Second
World War also led to the revival of natural law and the
emergence of human right movements after the war. During
the Second World War the Nazi regime rounded up Jehovah
Witnesses, Gypsies, Romans, Jews, Homosexuals and other
people in concentration camps all over Europe where they were
killed62. After the war the Allies Power set up the Nuremberg
International Tribunal to try Nazi war criminals and the Tokyo

60
IS. 10:1. Holy Bible, op. cit.
61
Biafran Declaration of May 30, 1967 by Lt. Col. Odumegwu Ojukwu. The Declaration led to the
commencement of the 30 months civil war in Nigeria.
62
For a critical documentary of the atrocities and trial of Nazi was criminals see Robert E. Conot, Justice At
Nuremberg, (1983 ed.)
International Military Tribunal to try Japanese war criminals 63.
During the Nuremberg trial 21 high ranking Nazi officials were
indicted for various crimes like war crimes, crimes against
humanity, crime against peace, genocide and so on. It was the
first time in the history of humanity that the entire high ranking
officials of a State will be rounded up and prosecuted for war
crimes and crimes against humanity. Horrors perpetrated by
the Nazis was unprecedented in the history of humanity. 6
million Jews perished under the Nazis and 90% of European
Jewry was wiped out by the Nazis. Other peoples and minorities
also suffered greatly under the Nazis and the intention of the
Nazis was to dominate the whole of Europe and this was what
led to the horrors of the Second World War in which millions
perished. At the opening of the trial of the Naziz the Chief
Prosecutor for the Americans: Robert Jackson made the
following opening statement:
The wrongs which we seek to condemn and
punish have been so calculated, so
malignant, and so devastating, that
civilization cannot tolerate their being
ignored ... what makes this inquest
significant is that these prisoners represent
sinister influences that will lurk in the world
long after their bodies have returned to dust.
We will show them to be living symbols of
racial hatreds, of terrorism and violence, and
of the arrogance, and cruelty of power64.

At the end of the Second World War the United Nations

was established and one of the main reasons why the UN was
formed was to prevent wars and to preserve human dignity and

63
Ibid.
64
Ibid. p. 105
fundamental human rights. These ideals were expressly
incorporated into the Charter of the UN. The Preamble of UN
provides as follows:
We the peoples of the United Nations
determined to save succeeding generations
from the scourge of war, which twice in our
lifetime has brought untold sorrow to
mankind, and to reaffirm faith in fundamental
human rights, in the dignity and worth of the
human person, in the equal rights of men and
women ... to practice tolerance and live
together in peace with one another as good
neighbours ...65

From the Preamble above we could see that the UN holds

peace and human rights dearly and the UN was bend to
eradicate the horrors of war and is committed to international
peace and security and human rights - these are lofty ideals of
natural law. On December 10, 1948 the UN promulgated the
Universal Declaration of Human Rights (UDHR) which had been
declared as the Magna Carta of Humanity. The fundamental
ideals of liberty, dignity and human rights are also proclaimed
under the UDHR. Its Preamble provides:
Whereas recognition of the inherent dignity
and of the equal and inalienable rights of all
members of the human family is the
foundation of freedom, justice and peace in
the world.
Whereas disregard and contempt for human
rights have resulted in barbarous acts which
outraged the conscience of mankind, and the
advent of a world in which human beings
shall enjoy freedom of speech and belief and
freedom from fear and want has been

65
Preamble of the UN Charter. The Charter was signed on 26 June, 1945 and it came to effect on October 24,
1945
 proclaimed as the highest aspiration of the
common people.
Whereas it is essential, if man is not to be
compelled to have recourse, as a last resort,
to rebellion against tyranny and oppression,
that human rights should be protected by the
rule of law...66

The Preamble further re-echoed the content of the

Preamble of the UN in respect of fundamental human rights
and the UN affirmed to promote it. The Preamble continues:
Whereas the peoples of the United Nations
have in the Charter reaffirmed their faith in
fundamental human rights, in the dignity and
worth of human person and in the equal
rights of men and women and have
determined to promote social progress and
better standards of life in larger freedom.
Whereas Member States have pledged
themselves to achieve, in cooperation with
the United Nations, the promotion of the
universal respect for and observance of
human rights and fundamental freedoms.
Whereas a common understanding of these
rights and freedoms is of the greatest
importance for the full realization of this
pledge.

The General Assembly proclaims:

This Universal Declaration of Human Rights
as a common standard of achievement for all
peoples and all nations, to the end that every
individual and every organ of society,
keeping this Declaration constantly in mind,
shall strive by teaching and education to
promote respect for these rights and
freedoms and by progressive measures,
national and international, to secure their

66
The Preamble of the UDHR which was adopted and proclaimed by the UNGA in resolution 217A(III) of 10
December 1948 at Paris.
 universal and effective recognition and
observance, both among the people of
Member States themselves and among the
peoples of territories under their jurisdiction.

The UDHR even though it is not legally binding on States it

is binding morally because it is a common standard of
achievement for all peoples, all nations, every individual and
every organ of society. As a result of this nearly all the States
of the world have incorporated the Declaration into their
Constitutions in form of Fundamental Human Rights. The
Declaration has 30 Articles and it protects civil, political,
economic, social and cultural rights.
In 1966 the United Nations went further to promulgate two
International Covenants on Human Rights 67 as follows: (1) The
International Covenant on Civil and Political Rights and its
Protocol and (2) The International Covenant on Economic,
Social and Cultural Rights68. Preambles of the two Covenants
affirm the Preamble of both the UN and UDHR in respect of
fundamental human rights. The ICESCR protects rights like right
to self determination, equal rights of women and men, right to
work, trade union right, right to social security, adequate
standard of living, health, education, culture, etc. while the
ICCPR protects rights like right to self determination, prohibition
of discrimination, equal rights of both women and men, right to
life, prohibition of torture, prohibition of slavery and forced
labour, right to liberty and security, right to humane treatment,
freedom of movement, etc.
67
The ICCPR was adopted by the UNGA in resolution 2200A(XXI) of 16 December 1966 and it entered in force
on 23 March 1976.
68
The ICESOR Was adopted by the UNGA in resolution 2200A(XXI) of 16 December 1966 at New York and
entered into force on 3 January 1976.
 The International Covenant on Civil and Political Rights
(ICCPR) in addition has two Optional Protocols: (1) Optional
Protocol To The International Covenant on Civil and Political
Rights69 under which the signatories to the Protocol bound and
committed themselves to the Human Rights Committee to
receive and consider communications from individuals claiming
to be victims o; violations of any rights proclaimed in the covenant.
(2) Second Optional Protocol To The International Covenant on Civil
and Political Rights Aiming at the Abolition of the Death Penalty 70.
State Parties to this Protocol pledge themselves to put a moratorium
and abolish death penalty in their States.
The 1990s emerged as a dark era in relation to Fundamental
Human Rights when genocide occurred in former Yugoslavia and in
Rwanda in which millions of people perished. The UN reacted swiftly
by setting up the International Criminal Tribunal for Former
Yugoslavia (ICTY)71 and the International Criminal Tribunal for
Rwanda (ICTR)72. This was the second time in the history of
humanity that international tribunal would be set up to try war
criminals. The two tribunals in their respective Statutes were given
jurisdiction over war criminals and to bring them to justice. They
have jurisdictions over war crimes, crimes against humanity,
genocide and crime of aggression. Article 6 of the Statute of ICTY
defines genocide to mean any of the following acts committed with
intent not destroy in whole in part, a national, ethnical, racial or
69
Adopted by UNGA in resolution 2200 A(XXI) of 16 December 1966 at New York and entered in force on 23
March 1976
70
Adopted by UNGA in resolution 44/128 of 15 December 1989 at New York
71
International Tribunal for the Prosecution of Persons Responsible for Serius Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991
72
International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious
Viilations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens
responsible for genocide and other such violations committed in the territory of neighbouring States, beween
1 January 1994 and 31 December 1994
religious group such as (a) killing members of a group (b) causing
serious bodily or mental harm (c) deliberately inflicting on a group
conditions of life calculated to bring about its physical destruction
(d) imposing measures intended to prevent births within a
group (e) forcibly transferring children of a group to another
group.
During the wars in former Yugoslavia and Rwanda the
perpetrators of the wars were targeting genocide and ethnic
cleansing and the highest victims were women and children. In
the former Yugoslavia war over 20,000 Bosnian women were
raped and thousands of Bosnian Muslims were killed. In
Rwanda, over 800,000 Tutsis and moderate Hutus were killed 73.
In a swift reaction to this the UN has no option than to set up
two Tribunals to bring the war criminals to justice. Similar
courts were later on set up for Sierra Leone 74 and for
Cambodia.75

Conclusion
Natural law suffers an eclipse during the emergence of
positivism and it was revived in the middle of the 19 th century
due to the emergence of sadistic and totalitarian regimes all
over the whole world. The revival was competed after the
Second World War and it fully bounce back with the human
73
For a detailed account of meaning of “Genocide” and a review of some of the cases of both tribunals see
Clair de Than and Edwin Shorts, op. cit. Genocide is currently also going on in Darfur, Sudan see N.J.
Udombana, An Escape from Reason: Genocide and the International Commission of Inquiry on Darfur. The
International Criminal Court in Hague recently issued a warrant of arrest for the President of Sudan, President
Omar El Bashir. He is yet to be arrested by the ICC.
74
Special Court for Sierra-Leone
75
International Criminal Tribunal for Cambodia
rights movement of the 20th century. The incorporation of
human rights into the UN Charter owes its origin to natural law
and this is part of the revival of natural law. Whenever evil men
come to power men of righteousness will always resort to
natural law to overthrow them. According to C.K. Allen, “mad
men have occupied thrones and they have done mad things but it is
a familiar lesson of history that a government which is self-
ungoverned cannot long endure; for its laws, however, wicked or
unwise will eventually be cast into a furnace”76.

76
C.K. Allen, Aspect of Justice (1958 ed.) p. 71