IV.

Modern Theories

The Dutch jurist Hugo Grotius is considered the founder of the modern theory of natural law. His definition of natural law as that body of rules which can be discovered by the use of reason is traditional, but in raising the hypothetical argument that his law would have validity even if there were no God or if the affairs of human beings were of no concern to God, he effected a divorce from theological presuppositions and prepared the way for the purely rationalistic theories of the 17th and 18th centuries. He thus departed from scholasticism in his methodology if not in his content. A second innovation of Grotius was to view this law as deductive and independent of experience: “Just as the mathematicians treat their figures as abstracted from bodies, so in treating law I have withdrawn my mind from every particular fact” (De Jure Belli ac Pacis; On the Law of War and Peace, 1625).

The German jurist Samuel von Pufendorf, the first to hold a chair of natural law in a German university, more fully developed the concept of a law of nature. The 17th-century English philosophers Thomas Hobbes and John Locke proposed an original state of nature from which a social contract arose and combined this theory with that of natural law. Locke's doctrine that nature had endowed human beings with certain inalienable rights that could not be violated by any governing authority was incorporated in the American Declaration of Independence.

In the 19th century a critical spirit dominated discussions of natural law. The existence of a natural law was generally regarded as unprovable, and it was largely replaced in legal theory by utilitarianism, formulated by the English philosopher Jeremy Bentham as “the greatest happiness of the greatest number”, and by legal positivism, according to which law is based simply on “the command of the ruler”, in the phrase of the English jurist John Austin.

The atrocities committed by Nazi Germany during World War II revived interest in a higher standard than positive law. The United Nations (UN) Charter declared the “faith” of that organization in human rights, and on December 10, 1948, the UN General Assembly adopted the Universal Declaration of Human Rights, which, however, is more a moral pronouncement than a legally enforceable treaty. See also Ethics.