A “higher law” that, according to some political philosophers, applies to all human beings everywhere, is discoverable by reason alone, and is a standard by which to evaluate the laws made by human beings.
Natural law is best understood in contrast to positive law and to divine law. Positive law is that made by human beings; it may differ widely from one society to the next. Divine law is that set down in religious teachings; it often strongly influences the laws made by human beings and is said to be knowable only through revelation.
The concept of natural law that has most influenced American law was developed by political philosopher John Locke, pictured here.
According to philosophers, natural law, unlike divine law, is knowable through the use of reason alone, via the human ability to reflect on the nature of the world and on other people. Because nature is universal, natural law is universal. It therefore stands as a body of “higher law” in relation to the laws made by human beings. According to the doctrine of natural law, positive law is just or morally right to the extent that it reflects the natural law.
Although the idea of natural law was first elaborated by the ancient Greeks and Romans and given its fullest premodern expression in the philosophy of the medieval philosopher Saint Thomas Aquinas, the concept of natural law that most affected U.S. jurisprudence derives primarily from the political philosophy of John Locke
Ancient and medieval political philosophy shared the view that human beings are by nature political animals. Modern political philosophy, beginning with Niccolò Machiavelli and Hobbes, broke with this view, arguing that human beings are not naturally political. According to Hobbes, for example, life in the state of nature is “solitary, poor, nasty, brutish, and short.” In the state of nature, no sovereign exists; each person must compete against all others. Competition, scarcity, the desire for glory, and fear for one’s life make existence in the natural state terrifying. Although people are free in the state of nature to do what they desire, they cannot possibly enjoy this unlimited freedom. They have rights natural rights in the state of nature, but they cannot enjoy them. Therefore, they consent to form a “social compact”; they give up their unlimited freedom to be ruled in civil society so that they might enjoy a prosperous peace and comfortable self-preservation. People’s natural desire to preserve themselves is thus fulfilled in the most rational manner possible by following what Locke termed the “first and fundamental natural law.” This law commands the preservation of the society and everyone in it. Even the sovereign power that makes human laws is governed by this natural law.
The concept of natural law finds expression in the opening sentence of the Declaration of Independence
The idea of a body of “higher law,” whether it takes the form of natural laws or natural rights, has been powerfully influential in U.S. jurisprudence, particularly in the context of interpreting the vague due process and equal protection clauses of the Fourteenth Amendment.
Abadinsky, Howard. Law and Justice: An Introduction to the American Legal System. 5th ed. Chicago: Nelson-Hall, 2003. Arkes, Hadley. Beyond the Constitution. Princeton, N.J.: Princeton University Press, 1990. Berns, Walter. “Judicial Review and the Rights and Laws of Nature.” In The Supreme Court Review 1982, edited by Phillip Kurland, Gerhard Casper, and Dennis Hutchinson. Chicago: University of Chicago Press, 1983. Corwin, Edward S. The “Higher Law” Background of American Constitutional Law. Ithaca, N.Y.: Cornell University Press, 1955. Fried, Charles. Saying What the Law Is: The Constitution in the Supreme Court. Cambridge, Mass.: Harvard University Press, 2004. Gerber, Scott. To Secure These Rights: The Declaration of Independence and Constitutional Interpretation. New York: New York University Press, 1995. Grey, Thomas. “Do We Have an Unwritten Constitution?” Stanford Law Review 27 (1975): 703. Locke, John. Essays on the Law of Nature. Oxford: Clarendon Press, 1954. Ritchie, Donald A., and JusticeLearning.org. Our Constitution. New York: Oxford University Press, 2006. Willoughby, Westel Woodbury. The Supreme Court of the United States: Its History and Influence in Our Constitutional System. Union, N.J.: Lawbook Exchange, 2001.
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