Natural Law: Classic and Modern?
| Autor | Paulo Ferreira da Cunha |
| Ocupação do Autor | Catedrático da Universidade do Porto |
| Páginas | 1181-1203 |
Special Workshop: e Natural Law tradition • 1181
Natural Law: Classic and Modern?
Paulo Ferreira da Cunha1
Abstract: Natural Law was, in its many aspects, the philosophy of Law of the
Western World, at least, during centuries. A general change of paradigm is
making it a sleeping beauty in a beautiful castle surrounded by high and wild
vegetation. If we want to wake up Natural Law from its persistent dream, we
must face some myths about it, and deconstruct them. And try to build not a
modernNaturallawagainstthepastonesbutamoreexibleandcontempo-
rary vision of it. Let me present to you some basic thesis to what I call a critical
neojusnaturalism, an alternative to the present dogmatic theories of a positivist
natural law, and the ideological division between classical and modern natural
law.
Keywords: Natural Law, Human Rights, Ideology
1. Perfection
The common idea about Natural Law is, as all professors of Juris-
prudence know, very far away from what Natural Law really is.
Accordingto many who are byno means learned in themaer
Natural Law would be “the right law”, “the just law” or “the perfect law”.
Oneoftherstindicationsofafalsetheoryinthosephilosophicaleldsis
the strong conviction used to assert one’s thesis. Those who say that Natu-
ral Law is the best, the most perfect law, normally do that emphatically,
with no shadow of a doubt, and it seems that things become real or true
merely because they say things are as they are.
For those dogmatic iusnaturalists, Natural Law would be plain
law, and positive law would be a decayed or maculated law.
ButitisquiteobviousthatNaturalLawcannotbydenitionbe
unjust or even unfair and if it is even more true that there are and there
always were all over the world many examples of an unjust and unfair
positive law (the machine of making law is mainly in the hands of politi-
cians, sometimes deprived of juridical knowledge and more often with-
1
Catedrático da Universidade do Porto.
1182 • XXVI World Congress of Philosophy of Law and Social Philosophy
out a real sense of justice - either juridical or social), it is undeniable that
Natural Law and positive law need each other.
2. Positive Law
So, against the prejudice that Natural Law is the good law and
positive law the bad one, or at least the decayed one, we declare that
they need each other. And why? Because Natural Law is not a complete
law, and positive law, though positivists like to think otherwise, is in a
symmetrical position.
Natural Law cannot determine by itself the colour of ocial
forms, the exact amount of academic fees or the duration of a punish-
ment for this or that crime.
On the other hand, positive law has no detachment from its own
reality. And the dura lex sed lex pseudo-principle enables positivists to
think of the most important thing in law: justice. In general, without the
window of Natural Law, positive law would be the same as a subordi-
nate, more or less mechanical activity. Law would be just another way
of force, power and politics. We obviously do not deny the immense
importanceofthosemaers tothelaw butthere aresomelimitsAta
certain point, jurists, the priests of Justice, are allowed by their special
legitimacy to say “no” to the simple orders of a power that, even if it
is legitimate by title, by doing evil things falls into the darkness of the
exercise of illegitimacy. This may be said with other words, but it was
formulated approximately in these terms centuries ago. Another com-
mon place - also a mistake, but not so serious - considers Natural Law
as a set of principles - it is an understandable temptation for a philoso-
pher (even more for a jurist) who is not so demanding and is, let us say,
shortoftimeInfactthemaerismorecomplexthanthatJudgingfrom
one of its aspects, we could even say that maybe Natural Law was once
(mainly in jusrationalist times and immediately after that) a set of prin-
ciplesorbeerstillasystemofprinciplesbutthatdoesnothelpusalot
becauserstofallNaturalLawwasnotalwaysseenlikethatandwhat
is even more complicated - it seems that nowadays Natural Law can no
longer be conceived as being only principles or mainly certain concrete
principles.
Today, with a certain “good will” we would admit a very subtle
presence of principles of Natural Law. They should be mainly principles
under the commonly accepted ones. A kind of shadow-principles, more
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