Natural law in the Enlightenment and the modern era

Other Scholastic thinkers, including the Franciscan philosophers John Duns Scotus (1266–1308) and William of Ockham (c. 1285–1347/49) and the Spanish theologian Francisco Suárez (1548–1617), emphasized divine will instead of divine reason as the source of law. This “voluntarism” influenced the Roman Catholic jurisprudence of the Counter-Reformation in the 16th and early 17th centuries, but the Thomistic doctrine was later revived and reinforced to become the main philosophical ground for the papal exposition of natural right in the social teaching of Pope Leo XIII (1810–1903) and his successors.

In an epoch-making appeal, Hugo Grotius (1583–1645) claimed that nations were subject to natural law. Whereas his fellow Calvinist Johannes Althusius (1557–1638) had proceeded from theological doctrines of predestination to elaborate his theory of a universally binding law, Grotius insisted on the validity of the natural law “even if we were to suppose…that God does not exist or is not concerned with human affairs.” A few years later Thomas Hobbes (1588–1679), starting from the assumption of a savage “state of nature” in which each man was at war with every other—rather than from the “state of innocence” in which man had lived in the biblical Garden of Eden—defined the right of nature (jus naturale) to be “the liberty each man hath to use his own power for the preservation of his own nature, that is to say, of life,” and a law of nature (lex naturalis) as “a precept or general rule found out by reason, by which a man is forbidden to do that which is destructive of his life.” He then enumerated the elementary rules on which peace and society could be established. Thus, Grotius and Hobbes stand together at the head of that “school of natural law” that, in accordance with the tendencies of the Enlightenment, tried to construct a whole edifice of law by rational deduction from a hypothetical “state of nature” and a “social contract” of consent between rulers and subjects. John Locke (1632–1704) departed from Hobbesian pessimism to the extent of describing the state of nature as a state of society, with free and equal men already observing the natural law. In France Charles-Louis de Secondat Montesquieu (1689–1755) argued that natural laws were presocial and superior to those of religion and the state, and Jean-Jacques Rousseau (1712–78) postulated a savage who was virtuous in isolation and actuated by two principles “prior to reason”: self-preservation and compassion (innate repugnance to the sufferings of others).

The confidence in appeals to natural law displayed by 17th- and 18th-century writers such as Locke, the authors of the American Declaration of Independence, and the authors of France’s Declaration of the Rights of Man and of the Citizen evaporated in the early 19th century. The philosophy of Immanuel Kant (1724–1804), as well as the utilitarianism of Jeremy Bentham (1748–1832), served to weaken the belief that “nature” could be the source of moral or legal norms. In the mid-20th century, however, there was a revival of interest in natural law, sparked by the widespread belief that the Nazi regime of Adolf Hitler, which ruled Germany from 1933 to 1945, had been essentially lawless, even though it also had been the source of a significant amount of positive law. As in previous centuries, the need to challenge the unjust laws of particular states inspired the desire to invoke rules of right and justice held to be natural rather than merely conventional. However, the 19th century’s skepticism about invoking nature as a source of moral and legal norms remained powerful, and contemporary writers almost invariably talked of human rights rather than natural rights.