QUESTION

WHAT ARE THE CENTRAL CONCERNS OF NATURAL LAW AND ITS RELEVANCE
TO MODERN LAW?

Natural law is premised on the following perception which entails that law cannot be
understood outside the precepts of morality, justice, fairness and that there is a higher
moral law (God) which is not subordinate to any law promulgated by humans but
instead it overrides any human made laws. Natural law theorizes that an unjust law is
not law at all ‘lex iniusta non est lex’ this Latin maxim appropriately underlines the
main thought of natural law. It also states that any human-made laws that disagree
with natural law are invalid. The writer will expound the above central concerns of
natural law and their relevance to Modern law.

The word 'law' means order; hence natural law is simply the natural order. In the sense
in which natural law is relevant to law professionals, it is the natural order of persons
specifically, the order of natural persons: human beings that are capable of rational,
purposive action, speech and thought. In short, natural law is the natural order of the
human world.

Natural law can generally be described as an unwritten law which is superior to and is
the measure of manmade law. Natural law scholars understand it to provide “a sort of
priori, intuitive knowledge objective moral values” and “an objective standard of right
and wrong that is independent of the individual conscience”. Michael Bertram Crowe,
The Changing Profile of The Natural Law 6 (1977)

Classical (Greco-Roman), Medieval and Modern categorizes of Natural law and

Despite luminaries in natural law differing as to the source of natural law, they in actual
fact postulates the existence of higher moral principles which have validity and
authority independent of human made laws and they do not differ in the central
concerns of natural law. Friedmann appropriately stated, 'the history of natural law is a
tale of the search of mankind for absolute justice and its failure', W. Friedmann. Legal
Theory (Third Indian Reprint 2003), 95.

One of the serious challenges in and modern states is that the philosophies of
jurisprudence are rooted in the idea that right and wrong, particularly in the realm of
law, are simply what we say they are. Thus human law does not appear to be
accountable to anything beyond itself.

But in reality can law be viewed as such viewing how laws are promulgated by
legislators and how they are interpreted by the judicial. In law making natural law is
inescapable, and so every effort to develop appropriate laws reflects to some scale the
lawmaker’s grasp of the natural law, which conditions in at least some respects his own
notions of right and wrong, for example, it would be a rare government which did not
provide some protection against murder and theft, even if it did not apply a complete
understanding of either.

Every legislator derives his notions of good and evil largely from the natural law, even
when he or she is wrong about some aspects of the natural law. For example when in
Zimbabwe when the new constitution was put into place they had to do away with
Homosexuality which was viewed by the people as immoral and the government
agreed. The issue of Abortion also comes to the fore, in other countries it is a crime to
abort, whilst it is not so in others. In those countries abortion is practiced it still remains
immoral and against natural law, no matter how widely practiced. It was the same, with
slavery eventually it was also abolished since it was viewed as both immoral and unjust.

Philosophies of natural law view separation of law from morals as impossible since it is
morality that brings law into being and determines its continued existence. Taking a
look at modern law for example, Criminal Law, it can be noted that it is derived from
moral values which are from God as it also contains some of the laws in the Bible like
the Ten Commandments for example, thou shall not kill, thou shall not steal and thou
shall not commit adultery. Transgression of which punishment was provided for in God’s
law, Proverbs 3:11-12 My son, despise not the chastening of the LORD; neither be
weary of his correction: For whom the LORD loveth he correcteth; even as a father the
son in whom he delighteth.. This understanding was aptly stated by Aquinas “...the
order of justice belongs of the universe and this requires that penalty should be dealt
out to sinners. And so God is the author of the evil which is penalty, but not of the evil
which is fault”.

Preamble of the Zimbabwean constitution, clearly acknowledge existence of a higher

Even in our courts when a witness is about to give his / her evidence he swore on the
word of God with the words “So help me God”. This is a practice in most courts of law
the world over. The significance of which cannot be overemphasized it is clearly the
observance of a higher moral order, of which persons testifying should subscribe to and
hence it is all done in the pursuit justice is done.

In section 44 of the Constitution it is stipulated that “The state and every person…must
respect, protect and promote and fulfill the rights…” The rights stated are human rights,
literally the rights that one has simply because one is a human being. They are
characterized by being universal, inalienable, and indivisible and inter- dependent,
inherent from the dignity of the human person, enjoyed without discrimination. They
are based on the principles of natural law. They were installed to preserve persons’
moral and ensure justice. Cicero said that natural law is of universal application,
unchanging and everlasting and is the right reason in accordance with nature he said
the source of this law is God and that there is one master and one ruler who is God.
Cicero’s view best describes human rights stated above.

Aptly put by Aristotle “The universal law (coins nomos) being that of nature, there is a
certain natural and universal right and wrong which all men define, even if there is no
intercourse of covenant with each other; binds them all because this is naturally right ”

Aristotle remarks that, ‘particular’ laws are that each people have set up for itself, and
‘universal’ law that is according to nature of a human being. Though the source of this
law according to him is unclear, the writer is of the opinion that it can be said to be
from God since the nature of a human being is God made.

In the aspect of judicial decisions there are scenarios in which judicial officers use
natural law as reason for their decisions (ratio decidendi) in deciding controversial
issues as highlighted in the case of Corbett v Corbett (1977) AER (1) 83, where it was
held that marriage between a man and a person who had undergone a sex change was
a nullity. The Judge held that a transverse woman cannot perform what is required of a
natural woman. Condoning of such immoral acts hurts societies since they do not
conform to natural order of things.

In the Sodomy case of S v Banana (2000) ZLR (1) 607 the judgment given to Banana
was based on morality, that a man cannot have sexual intercourse with a man. Thus
being the case means central concerns of natural law are still being applied in modern
jurisprudence. The laws derived from morality cannot be talked about all but they
include; bestiality, sodomy, incest, rape, murder, theft which are morally wrong at the
same time being punishable crimes.

The study of natural law virtually has been banned from the training of lawyers. What
remain of it in the academic curriculum of most law schools is no more than a little bit
of 'intellectual history'. Students get the impression that natural law is something that
can be found only in books. They are led to believe that the natural law is nothing but a
collection of theories of natural law. In reality it is not.

CONCLUSION

Deducing from the statement and explanation above it can safely be said natural law is
the law that governs a man’s conscience. Its source is a higher moral being (God).
Luminaries in the study of this field may seem to differ as to its source in Genesis 1
verse 27 it is stated that God created man in his own image. Since God created man in
his own image it means that what is perceived by a man to be right or wrong comes
from within and is from God. The very nature of natural law and its concerns means it
cannot be done away with as long as a human being remains a creature of God’s
creation. A person’s every action, good or bad has consequences, natural law had
ensured that and it remains thus.
Bibliography

Constitution of Zimbabwe (2013) Printflow, Harare

All English Reports (1970) Volume 2

Zimbabwe Law Reports (2000) Volume 1

Michael Bertram Crowe, The Changing Profile of The Natural Law 6 (1977)

W. Friedmann. Legal Theory (2003) 3rd Indian Reprint.

Bible King James Version.