History of Natural Law
«The very idea of law originates in the natural rights of men. There is no other norm by which civil law can be measured except natural rights. Law has always been the name given to that rule or principle of justice which protects.»Lysander Spooner
HISTORY OF NATURAL LAW
Natural law can be defined as "the set of rational laws that express the order of the natural tendencies or inclinations towards the proper ends of the human being, that order which is proper to order as personal," a definition given by Javier Hervada (1934–2020), who was a professor and former dean of the Law Faculty at the University of Navarra, as well as vice dean of the Canon Law Faculty. He was also one of the great scholars and jurists dedicated to natural law and canon law.
This same author also unequivocally stated that: "What precedes positive law is not justice, but natural law." He produced significant work in which he made it clear repeatedly that natural law is the foundation for any possible application of law and that, in the natural order of things, it always prevails and is superior to positive law.
Natural law can guide us out of the prevailing relativistic confusion in the world today. Currently, society moves without a fixed direction, and concepts that should be universal are distorted; for example, public morality has been defined by the supranational corporation of the UN as something abstract and changeable according to time and customs, making it a fallacious concept.
It is important to keep in mind, regarding natural law, the history of canon law through Gratian's Decree around 1100 AD until the codification of canon law in 1917 (including its last modification in 1983), where natural law is a faithful part of the compendium and currently governs the world we know. This is evident since kings and popes swear their office on the 1611 King James Bible and thereby accept the codes of canon law and its structure transferred to a secular model.
Regarding canon law, it should be noted that it has been a body of norms that has consistently accepted natural law without decline or dispute, being well known that natural law played a crucial role in Roman law. The New Testament contains references to natural law as the "divine law engraved by God on the human heart," which passed into Patristics (the study of early Christianity) and therefore into ecclesiastical magisterium.
The position of natural law in the Church must be studied in light of the relationship between nature and grace. Grace operates on nature, enriching it but not altering it. Thus, the lex gratiae perfects the lex naturae but does not replace it; it respects it.
Delving into the history of our lands, in specific communities of the western Iberian Peninsula, as early as 1520 AD, the first attempt at a constituent text was made with the Perpetual Law of the Holy Junta of the Communeros of Castile, in which the last paragraph states that the institutions of that time should serve men "and in the increase of our royal rents and patrimony and the public good of our said kingdoms, and good order and governance of them, and amendment and repair of past excesses, and for the pacification and quiet state of our said kingdoms, we have so willed it," that is, respecting Natural Law and the Law from which it emanates.
Likewise, this text refers to the contractual nature of that law regulating the relations between men and the Crown (Charles V), indicating that "Since the above has been and is by way of equalization and composition and contract made and granted between Us and our kingdoms and their procurators and communities, and for the observance and keeping of which we can bind ourselves and we do bind ourselves as they do by way of contract."
Probably, this historical milestone left us with one of the greatest moments of oppression, tyranny, and crime by a king against a people known in our history, simply due to his ambition and greed in creating an Empire.
Later, in 1873 AD, also in these lands, the federal constitution project of the First Spanish Republic was carried out, in which it was recognized in its preliminary title that "Every person is assured in the Republic, without any power having faculties to coerce them, nor any law or authority to diminish them, all natural rights."
- The right to life, security, and the dignity of life.
- The right to the free exercise of one’s thought and the free expression of one’s conscience.
- The right to disseminate one’s ideas through teaching.
- The right to peaceful assembly and association.
- The freedom of work, industry, domestic commerce, and credit.
- The right to property, without power of encumbrance or redemption.
- Equality before the law.
- The right to be a juror and to be judged by juries; the right to full defense in trial; the right, in case of guilt or crime, to correction and purification through punishment.
«These rights are prior to and superior to all positive legislation.»
Nowadays, we live in a society governed by contractual law, disguised as a corporate social contract, where the closest we come to the application of natural law is in the awakening of the consciousness of our fellow human beings. Hence, we progress on the path of exercising what is rightfully ours by law, since the only truth that remains immutable throughout Eternity is that neither slavery nor violence, in any of their forms, can be considered sources of law, the only real and true right above all being the one inherent and inalienable to man and woman simply by virtue of having been born — that is, natural law.
It is necessary to make a terminological distinction between “man” and “person,” indicating, roughly speaking, that “man” belongs to the realm of natural law while “person” belongs to the realm of positive law. Man is constitutively structured as the essence that denominates his own being and his environment; therefore, being the possessor of his own being, he holds certain rights — obviously, the right to his own being. This implies, therefore, that man is naturally a holder of rights. On the other hand, the word “person” is a juridical creation, therefore positive, intended to give man another connotation distinct from what is proper to him by nature, differing from the term “man” whenever it is not accompanied by the adjective “human” (human person).
Undoubtedly, regarding the interpretation of natural law from the perspective of positive law, three aspects must be taken into account:
- Natural Law, despite being assumed by Positive Law, never loses its natural character;
- Positive Law must always be interpreted in accordance with Natural Law, as the latter is the guiding principle of the Legal System;
- Derived from the previous premise, the principle of the supremacy of Natural Law over Positive Law is established, which is hierarchically inferior, implying the duty of coherence with the superior law, Natural Law.
Nothing that is lawful by Natural Law can be prohibited by Positive Law, the law of men.