Natural Law Theory

According to Jenkins, â€Å"The natural law theory begins with theories about the nature and purpose of the world and moves on to ask about the purpose of every action or object. The right thing to do is that which fulfils the natural purpose. † Natural law was developed by Thomas Aquinas, in which he believed that there is such a thing as natural moral law. Natural law ethics depends on the belief that the world was designed by a creator, God. It teaches everything God made has a purpose, including every aspect of human life, and everything should work towards the purpose assigned to it.If we fulfil this purpose we do ‘good’, for example it is good to preserve life (â€Å"Do not kill†). If we frustrate the purpose for which something has been created then it is morally ‘wrong’, to destroy life is against the will of good. In addition, human sexuality was designed for the reproduction of the species. Any action which helps towards the fulfilmen t of this purpose is good; anything which hinders this fulfilment is bad. Aquinas believed there were four primary precepts, â€Å"God’s aims for humans†, which we are to follow to live according to natural law.These are to reproduce, learn and develop potential, live harmoniously in society and worship god. These precepts are moral absolutes and under no circumstances can be broken. Natural law is therefore a deontological theory. According to Aquinas natural law was the, â€Å"moral code which human beings are naturally inclined towards. † There are also the secondary precepts to take into account, which are the rules and regulations which help us achieve these aims. These are actually man made laws which are based on God’s principles.Natural law is a fusion of the secular philosophy of Aristotle (who claimed that everything had a purpose and therefore the fulfilment of these purposes was good, e. g. a good knife cuts well) and the religious tradition o f the church by Aquinas. Natural law was to be a supplement of the laws given in the scriptures and draws much inspiration from the bible. Paul in Romans 1-3 argues that the moral law of God is evident from the nature of humans and the world, â€Å"Ever since the creation of the world, his invisible nature, has been clearly perceived in the things that have been made. (Romans 1:20) In Matthew 19:3-9, Jesus observes that natural law should make it clear that divorce is wrong, â€Å"For your hardness of heart Moses allowed you to divorce your wife, but from the beginning it was not so. † Marriage was designed for the building up of the married couple by each other and for birth and secure upbringing of children; divorce goes against God’s aim. Peter Mullen, Working with Morality, states, â€Å"Reason and the regularities of the natural world should be your guide. † Though are ability to reason we can get a sense of right and wrong.We can think freely for ourselve s and discover God’s intention and follow natural law. In other words we must use our reasoning powers in order to work out what is moral. This helps us deal with ethical issues which are not dealt with in the scripture e. g. euthanasia. In his book, Summa Theologiae, Aquinas maintained that we have four cardinal virtues (‘cardo’ meaning ‘a hinge’) on which are morality hinges and these four things inform as reason as well as the Decalogue. It has also maintained that we have seven capital vices. The cardinal virtues are prudence, justice, fortitude and self control.Pursing what is morally right will help us to develop these virtues and vice versa. The seven sins of morality are just the vices of pride, avarice, lust, envy, gluttony, anger and sloth. Aquinas maintains that these, in contrast with the four virtues are totally opposed to achieving the goals set out for humans in natural law. These natural virtues are expanded by the revealed virtues of faith, hope and charity derived from St Paul in Corinthians and â€Å"Aquinas held that the greater the extent to which these are developed by the individual, the greater the obedience will be to natural law. (Vardy and Grosch) When people sin according to Aquinas, it is because they are pursuing what they think is good. Human nature is generally good and therefore if we do wrong it is because we are in pursuit of an apparent good, e. g. abortion, can seem like at a good thing at times. According to Vardy and Grosch, â€Å"Humans seek apparent good, but this is not true good; only apparent good because it does not conform to the perfection of human nature which all humans share. † A historical example would be that of Hitler and Stalin, who did not seek out evil but sought what they thought, was right.The theory of natural law states that you are only responsible for the immediate consequences of your actions – not for the secondary or unintended effects of your acti on. This adds flexibility to the theory of natural law in such areas as just war and etopic pregnancy. According to Thompson, â€Å"Natural law is based on nature as seen by human reason enlightened by Christian faith. In the light of Jesus’ teaching and belief in God, reason can decide, by looking at nature, what is right. † Natural law however has some faults. It depends on the belief that the world was designed by a creator.Aquinas assumes that all men must seek to worship God, atheists not taken into consideration. According to Thompson, â€Å"†¦ if someone does not believe in God, then the natural law theory loses its foundation. † The theory also suggests that reproduction is one of God’s natural purposes of creating humankind, not considering those who are biologically incapable of having children. Thirdly, naturalistic fallacy, there is a problem with the assumption that just because something is a matter of fact in nature does not mean it ou ght to be obeyed by everyone. Hume argued that what is the case and what ought to be the case are different ideas.According to Jenkins, â€Å"sex does produce babies by this does not necessarily mean that people ought to have sex only for this purpose. † In some situations it may be necessary to against natural law to achieve a better end result, natural law is too flexible. According to Peter Mullen, â€Å"it may be necessary, for example to torture an innocent person to save the lives of thousands. † Finally, how do we define what is natural and what isn’t, there are some basic ideals but these are too vague to apply to specific situations. For example should we try to prolong the life of someone who is ill, for death is the ‘natural’ result?Natural law also puts too much emphasis on human reason. Human reason can be corrupted by sin, e. g. holocaust. However there are strengths of the natural law theory. First of all, it is a universal guide. It provides humanity with a set of common moral principles and can be sued if you are religious or not (Aristotle). Secondly it is a simple, straightforward set of rules – we look at the evidence of the natural world and apply our reason to consider if something is right or wrong. And thirdly, the principles of natural law can be applied to solve pecific moral problems – casuistry. In conclusion, â€Å"The natural law is written and engraved in the soul of each and every man; because it is human reason ordaining him to do good and forbidding him to do sin. † (Pope Leo XIII) It is claimed that everyone holds certain fundamental rights simply by virtue of being human. Some argue that rights are a modern western invention, rights are something â€Å"constructed† by a historical culture, seeking self justification for its own purpose to expand the notions and even to impose them on other cultures regardless of their traditional ways.The words ‘human rights ’ have come to mean the political norms and prescriptions that are found in international human rights documents such as the European Convention of Human Rights(1950) or the United Nations Declaration of Human Rights(1948). They deal with the way in which people should be treated by their government and its institutions. This paper proposes to develop the argument that making human rights universal is problematic, this will be done by firstly looking at the historical development of the concept of human rights, secondly the approaches taken towards questioning the validity or justification of the doctrine.Finally, to explore cultural, religious as well as gender differences which interact making human rights difficult if not problematic to universally enforce. Historical Origins and development and creation of the theory and practice The roots of human rights doctrine can be traced back to the times of Aristotle and Stoics. In his ‘Nicomachean Ethics’ Aristotle c reates the basis for the existence of a natural moral order. This would provide a potentially universal criterion for evaluating the authority of man made legal systems.Aristotle distinguishes natural justice and legal justice, â€Å"Natural justice is that which has same value everywhere and does not depend on acceptance† But the concept of rights akin to that of the contemporary idea of human rights most clearly emerges during the seventeenth and eighteenth centuries in Europe and the so called doctrine of natural law. The doctrine of Natural Law held belief in the existence of a natural moral code based upon the identification of certain fundamental and objectively identifiable human goods. John Locke argued that individuals possess natural rights, ndependently of political recognition given to them by the state. He posits the idea that people held such rights independently of and prior to the formation of any political community, natural law thus is to perceive Gods will which truly gave an authentic moral code. Locke provided the precedent of establishing legitimate political authority upon a rights foundation. Compassionate to the works of the Ancient Greeks and earlier philosophers such as Pufendorf, 18TH century German Philosopher Immanuel Kant, who held that, moral reasoning relied upon the condition that all rational individuals are bound to assent.His notion of the ‘categorical imperative’, doing the right thing is not determined by acting in pursuit of ones own interest or desires but acting in agreement with the maxim which all rational individuals are to accept. â€Å"So the act the maxim of which your will can at the same time be universal law† The philosophical ideals defended by Kant and Locke come to be associated with general enlightenment project during the 17th and 18th centuries. Ideals such as human dignity and equality enshrined in the US Declaration of independence and the French National Assembly’s De claration of Man.Similarly continued through the 19th century in various political movements to extend the political suffrage to those that were denied political and civil rights. The full declaration of the doctrine of human rights occurred in the 20th century in response to the atrocities epitomized by the holocaust. The United Nations Declaration of Human Rights, enshrining fundamental human rights was adopted by the General Assembly on the 10th of December 1948. One should note that the modern doctrine of human rights is not a mere expression of the natural rights concept; rather it goes beyond it in some respects.James Nickel promotes three ways in which contemporary concept of human rights differs from and goes beyond that of natural rights. Firstly, modern human rights are more interested in viewing equality as requiring positive action by the state for instance providing welfare assistance. Whereas natural rights promoters were apt to view equality in more formalistic terms, essentially requiring the state to refrain from â€Å"interfering† in individuals lives.Secondly, where promoters of natural rights tended to conceive of human beings as mere individuals, advocates of contemporary human rights are far keener to accept the importance of family and community in individual lives. And thirdly, Nickel views modern human rights as more ‘internationalist’ in content and orientation than was typically found within arguments in support of natural rights. One can clearly understand the final assertion, since today human rights are increasingly seen as requiring international action and concern.For the benefit of the discourse, drawing this distinction between natural rights and modern human rights allows one to distinguish the development of the concept of human rights. It will also be beneficial to see the different approaches’ to human rights a well as the categories of human rights. Such discussion of the nature of human rights will demonstrate whether in Raschs view human rights cannot be justified as a universalising project. Concepts of Human Rights There are two categories that are fundamental to understand basis and potential for the application of human rights.Legal rights: these are the rights found in existing legal codes, thus benefit from the recognition and protection of the law. Disputes as to its existence can be resolved by referring to the relevant legal instrument, a legal right cannot exist prior to its passing into law, the limits of which its validity are set by the jurisdiction of the body which passes relevant legislation. Moral rights are not rights in the strict sense, better to see them as moral claims which have the potential to be incorporated into national and international law.For a legal positivist like Jeremy Bentham, there can be no such thing as human rights existing prior to or independently from legal codification. In contrast, Moral rights can exist independently from the ir legal foil. It has been argued that the black majority in Apartheid South Africa possessed a moral right to full political participation in that countries’ political system although no such legal right existed. When rights exist at international level, we speak of them as human rights, but when they are enacted at national level we see them as civil or constitutional right.To develop this even further, one can question the validity of human rights. Firstly, the interests theory approach, which holds that the principle function of human rights is to protect and promote certain key human interests. John Finnis contends, human rights are justifiable on the grounds of their instrumental value for securing the necessary conditions of human well being. The Choice or Will theory, on the other hand aims to establish philosophical validity of human rights upon a single human attribute; the capacity for freedom.Proponents of this theory argue that rights are a manifestation of the e xercise of personal autonomy, the distinctive feature of human agency which should be the core concern of rights. Human rights and Universality In identifying the historical roots of human rights and some basic general conceptual and justificatory approaches’ to the topic, the question whether human rights are â€Å"universal† is to ask whether there are good reasons for believing that the norms and prescriptions contained in the international documents symbolising apply to and obligate all human beings equally, regardless of their cultural, social or geographical location.The argument posed by Rasch is that human rights possess personal character which means in spirit that they cannot intrinsically adhere to the cultural, religious and social differences. This contention will be the basis of the remaining space of this essay. Rasch holds, that both Rawls, Habermas who were inspired by the Kantian project of discerning the rational ordering of human society is the proj ect of a â€Å"universalist ideology† that is homogenous and self justificatory.In other words he is arguing that the natural laws which initially held basic rights of individuals is â€Å"Christianized†. Such is the essence of human rights that truly they cannot be all inclusive and ever embracing. Rasch’s assertion must be examined closely, paying particular attention to the issue about the norms and values inherent in ‘western’ human rights are not the basis for human rights in all corners of the plane Rawls claimed that human rights â€Å"specify limits to a regimes internal autonomy† and that †¦their fulfillment is sufficient to exclude justified and forceful interventions by diplomatic and economic sanctions or in grave cases of military force†. Indeed, it is a generalization to suggest there is a line defined by human rights where national sovereignty ends. The reason being, â€Å"fulfillment† of human rights is a ver y unclear idea, because no country fully satisfies human rights, all countries have human rights problems, some large many â€Å"gross† violations. One of the most significant challenges to contemporary human rights is the presumed objective basis of the doctrine as moral rights.On this view moral principles are inherently subjective in character in that they express individuals’ incomplete preferences Protagoras claimed that â€Å"†¦no persons opinions can be said to be more correct than another’s, because each is the sole judge of his or her experiences†¦Ã¢â‚¬  In modern times, such arguments have been defended by the likes of Richard Rorty, who argues that human rights are based on sentimental vision of humanity, that human rights are not rationally defensible and fundamentally are emanated by sympathetic identification with others as opposed to reason.Kant differentiated between modes of expressions into objective and subjective propositions. He asserted that if an individual’s analysis is not accepted universally then it remains the moral position of the individual, thus a distinction between law and morality. In other words, one cannot assert their moral views and principles on others and expect them to be accepted. Knowledge acquired essentially should be objective in form.But subjective acquisition of knowledge as Kant saw, through individual reasoning or ‘moral law’ of the individual, acceptance of it will raise the individuals knowledge, thus knowledge is a steady cultural effort, In contrast, Michael Foucault argued that acquisition of knowledge should be subjective , he held that â€Å"truth† is the instrument of power’ which should be used to strengthen knowledge.Human rights are related to moral convictions; moral convictions are determined by underlying cultural commitments; underlying commitments differ fundamentally from one culture to another; therefore, the interpretation of human rights must vary fundamentally across cultures. Cultural Relativism is the most fashionable attempts to challenge the universality of human rights. One may suspect that Muslim and Asian critics of human rights suppose that their own views are in fact superior to Western ideas, and that everyone would be better off if their views came to prevail universally. Because ultures differ, and because human rights must vary accordingly, no one culture can go around trying to impose its view of human rights on others. Islam’s characterization of human rights is based on its followers holding true to the word of the religion. A Muslim sees rights much in the same was as a Hindu, a series of duties to the creator, in order to attain the higher freedom of enlightenment at death. The publication of ‘Satanic Verses’ by Salman Rushdie which offended Muslims worldwide, highlights how the western concept of human rights, to free speech can be incompatible with Sharia law.It is undeniable that the international community derives its values from a liberal consensus that is in essence a secularized Christian ethic. The traditionalist Muslims have not been the only critics of the western standard of human rights, until very recently the Catholic Church has been a strong opposition to what it saw as a conquest over the values of Christian community. The hearts of monotheistic religions are in conflict with the basis of human rights.Human rights doctrine is ‘humancentric’ essentially based on the responsibility and autonomy of the individual, the doctrine takes its premise in the authority of the state i. e. secularism and as its primary aim, to prevent abuse of power by the state over the individual. While monotheistic religions emphasis the will of god through the community. A study of prominent religion and development journals revealed that â€Å"religion and spirituality’’ are under represented in â€Å"†¦development li terature and in the policies and programmes’ of development organizations†¦Ã¢â‚¬â„¢The unique case of Re A (Conjoined Twins: Surgical separation), where doctors wished to separate Siamese twins otherwise both would have died, the parents opposed the operation on religious grounds, though the hospital and courts were choosing the â€Å"lesser of two evils† in that if the operation was not carried out the twins would die but if the operation went ahead one would live, the operation was allowed. Such a judgment is clearly confrontational with the religious duty of individuals.Furthermore, cultural imperialisms impact on human rights; Cultures are compelled to accept apparent universal standards because they are pressured to do so by more powerful cultures. Donnelly, contends that the American human rights regime can be explained by the power that lies within it, He believes that the dominant power of united states, in exercising its supreme power ensures support and creation of its interests. Essentially, human rights’ as an objective project is in reality established on subjective norms.The global institutions developed, in the hope to exercise their view of human rights through creation of instruments in the form of universal declarations or agreements, to which all cultures agree to, comply. The preamble to the United Nations Charter, demonstrates the clear declaration of universal intention by all member states to agree to a universal set of standards and norms. Who were behind the utopian ideal? The creation of United Nations was a result of recommendations by United Kingdom and the United States, the new ‘cultural imperialists’. We the United States recognise and accept our deep involvement in the destiny of men everywhere† Such was the sentiment expressed by President Eisenhower. During the creation of the UN and even today the membership is still increasingly western with a low presence of Asian, African or Ara b membership. USA evidently believed it was responsible for peace, security and human rights over other cultures, naturally ensuring that their values and norms become universal and dominant.In addition, the delegation for Saudi Arabia to the committee drafting the Universal Declaration of Human Rights in 1947, expressed that the committee â€Å"†¦for the most part taken into consideration only standards recognised by western civilisation†¦Ã¢â‚¬  The delegation contended that the committee was not to â€Å" proclaim the superiority of one civilization over all others or to establish uniform standards for all the countries in the world†Rawls argued that human rights are â€Å"international and universal† in that they apply to all individuals everywhere, however, such sentimental objections outlined are commonly expressed by not only Middle Eastern states but also Asian countries like China, the reason for this is that â€Å"Asian Values† place the goo d of the community over those of the individual, one can deduct that there isn’t universal consensus on the subject of human rights. Western values inherent in international human rights documents such as the UDHR are in what one can term cultural conflict as there is a clash of difference in values and norms.What can also be deduced from the lack of consensus, is that rights are ‘culture specific’, Human rights appear in the context of particular social, economic, cultural and political conditions. This is unquestionably true, since what circumstances brought about human rights in the west cannot be said to exist elsewhere. China has echoed such attitude in a 1991 white paper â€Å"†¦owing to tremendous differences in historical background, social system, cultural tradition and economic development, countries differ in their understanding and practice of human rights†¦Ã¢â‚¬ The dominance of western thought or ideological heritage in eastern or differ ent legal jurisdictions will not necessarily be accepted; rather what should happen is that human rights should â€Å"be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional peculiarities and various historical, cultural, and religious backgrounds†¦Ã¢â‚¬  In line with the last mentioned point, the issue of political sovereignty is worth noting.A state has national sovereignty to determine matters of human rights locally, rather than relying on international agencies to externally determine national affairs. The issue of human rights falls by and large within the sovereignty of each state. In 1995, the Chinese government confirmed its opposition to â€Å"some countries' hegemonic acts of using a double standard for the human rights of other countries . . . and imposing their own pattern on others, or interfering in the internal affairs of other countries by using `human rights' as a pretext. The West's attempt to apply universal standards of human rights to developing countries is disguised cultural imperialism and an attempt to obstruct their development. It can be emphasized that human rights are harms which the law commits and heals through human rights. They are concerned with the terrible rather than with achieving the best. Their aim is achieving minimally good lives for all people, or so it is claimed. For instance, Article 3 Universal Declaration of Human Rights: Everyone has the right to life, liberty and security of person’. As outlined earlier in the discourse, legal rights are in essence human rights as their basic action is to extend theoretical recognition and respect to all. But, New rights creating new ways of being in common with others else where open the boundaries of community. Karl Marx insisted that political community both upholds and denies universality of rights since rights support and are supported in turn by the inequalities of economy and culture.Economic exploitation of the urban poor through unemployment, low paid wages, poor health of developing countries through unequal trade and rising debt undermines and ultimately destroys the prospect of self determination when daily survival is the order of the day; all aspirations for social improvement or cultural expression are quenched. Thomas Pogge argues that basic human rights ambit of â€Å"securing life, liberty and security† has not been fulfilled That world poverty is an ongoing harm we inflict seems completely incredible to most citizens of the affluent countries. We call it tragic that the basic human rights of so many remain unfulfilled†¦Ã¢â‚¬  If it is accepted, that affluent nations such as USA, France and the UK are the beneficiaries of advancing the universality of human rights and the doctrine is inherently favorable to them, then what Pogge argues is the ‘nexus between our global institutional order and the persistence o f severe poverty ‘, then the injustice of such an order can also be accepted.It cannot be denied that the values of the consumer society cannot be applied to societies that have nothing to consume, since talking about universal rights is rather like saying that the rich and the poor both have the same right to fly first class and to sleep under bridges. What is justified in Britain in terms of legal rights cannot totally be the same in Malaysia. Clearly, there is a distinction of what law is and what is morally correct from the view of collective individuals, community and ultimately a nation.Rights promoting the equality of sexes are a contentious point The Convention for the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted by UN General Assembly in 1979, it codified women’s right to equality in all spheres of life as a global norm. Article 2(f) of the convention imposes positive obligation on member states to modify or abolish â€Å"custom s and practices† which discriminate against women. Cultural differences have practical implications. Whether women’s human rights can be universal is at a moot point, since some cultures are seen as patriarchal like Islam and Buddhism.But a controversial but pertinent example of an approach that seeks to strengthen cultural integrity and individual freedom is India’s Muslim Women (Protection of Rights Upon Divorce) Act. This legislation was enacted after the case of Shah Banu, the Supreme Court of India upheld the right of a divorced Muslim woman to alimony, prompting outrage from Muslim traditionalists who claimed this violated their religious beliefs that divorced women were only entitled to the return of the bride price paid upon marriage.The Indian parliament then passed a law to override the court's judgment, under which Muslim women married under Muslim law would be obliged to accept the return of the bride price as the only payment of alimony. F. Raday cla ims that the most widespread inequality women face is the treating of women as housewives or mothers and not being able to integrate fully in the public domain. Equality, despite assertions of Declarations and Constitutions that ‘women are like men’ and that ‘women are different from men’ is a political construct, as Hegel and Marx argued which is expressed through the legal.The law as Hegel argued is ill equipped to accommodate difference human rights claims therefore involve an inconsistent dialectic between an impossible demand for universal equality that is identifiable with the western man. From the above discussion, it has been expounded that human rights cannot be absolutely universal to accommodate societal differences. What is universally different lies in the cultural as well as religious and gender dissimilarities that is the backbone to incomplete consensus on the subject of human rights.Common Western cultural roots are the basis of internation al treaties establishing so called universal human rights, leading non western cultures to conform to prejudiced norms. The knowledge promulgated in the doctrine is inherently subjective in character embodying the dominant cultural preferences. In reply to William Rasch, human rights cannot totally be justified as they are not completely and entirely impartial so as to accommodate cultural disparity.To paraphrase Oona Hathaway International public opinion have often been lured â€Å"that (in the words of Columbia Law professor Louis Henkin) ‘almost all nation observe almost all principles of international law and almost all of their obligations almost all of the times’†. This assertion can definitely be regarded as false when it comes to Human Rights. Examples can be found involving â€Å"almost† all the countries â€Å"almost† all of the times. It took America nearly forty years to ratify, with qualifying conditions the 1948 Genocide Convention.Fra nce has never transcripted in its national law the UN Charter for the Rights of Children (which has never been ratified by the USA). Last but not least, most of the genocides that have been perpetrated since the end of World War II, have taken place in countries party to the already quoted 1948 Genocide Convention (Rwanda, Yugoslavia, Iraq, etc†¦). In fact, it seems impossible to imagine a way of enforcing Human Rights when one reckons that it is already impossible to enforce the principles of international law. Indeed, the respect of international agreements is completely left to the will of the nations parties to these agreements.The respect (or non-respect) of a signed treaty is a matter of sovereignty and no sanction can be envisaged but a military intervention violating this concept of sovereignty. This is also Carlos Santiago Nino’s stance: according to this author the most serious limitation of the strategy of enforcing Human Rights is â€Å"that the still curren t conception of sovereignty of states impose severe restrictions on the obligations that governments accept by their commitment and on the forms of intervention available to external organs for investigating and punishing Human Rights violations†.The conception of a potential international normative system has to clash with the ideal of self determination because there is no ‘global civil society’. Or in Chris Brown’s words â€Å"properly understood, ‘civil society’ requires an effective state, while ‘global civil society’ is characteristically seen as a substitute for such a political order. 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Renteln, ‘The Unanswered Challenges of Relativism’ (Vol. 7 Human Rights Quarterly,1985)Yimga, Andre Marie (Human Rights League, Cameroon): â€Å"Are Human Rights universal – a common heritage shared among cultures? † Rasch. W . ‘Human Rights as Geopolitics’ (Cultural Critique 54 spring 2003) Websites United Nations Official Website http://www. un. org/Overview/rights. htmlInternational Humanist and Ethical Union http://www. iheu. org/node/2874 United States Institute of Peace http://www. usip. org/religionpeace/rehr/universality. html President Eisenhower’s Second Inaugural Address http://www. homeofheroes. com/presidents/inaugural/34_ike_2. htmlEssays on Popular Politics and Human Rights http://www. irmgard-coninx-stiftung. de/index. php? id=1