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Changes of the natural law concept

Author: ZhanMaoHua
Tutor: HeQinHua
School: East China University of Politics and Law
Course: Legal History
Keywords: natural law nature reason justice historical evolvement
CLC: D90
Type: PhD thesis
Year: 2005
Downloads: 1639
Quote: 6
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Abstract


Guided by Marxism, the author makes a careful study of the natural law which is a special idea and phenomenon in western political and law culture. During the long period of more than two thousand years, the idea of natural law runs through the whole course of western political and law culture as if it were an axis. In the dissertation the author shows the historical route of development in Western history by means of history, philosophy, comparison and class. At the same time, the author analyzes the characters and the laws of natural law.The dissertation is made up of three parts. They are introduction, main body and the conclusion. There are four chapters all together with more than 180000 Chinese characters.The introduction mainly introduces the purposes, the situation of study in our country and foreign countries, the methods of study as well as the meaning of study with about 10000 Chinese characters. In this part, the author points out that there are four meanings when we study the natural law. The first is that the idea of natural law provides a set of value standards for us to evaluate the laws. The second is that the idea of natural law can help us set up the spirit of law-belief. The third is that the idea of natural law can help us strengthen the idea of rights. The fourth is that the idea of natural law can help us build a kind of harmonious social order.The main body is the main part of the dissertation. In this part, the author mainly discusses the course of development and the characters of the natural law. The author divides this part into four chapters according to the four periods of natural law with about 170000 Chinese characters.The first chapter mainly describes the course of the idea of natural law and the characters from its sprout to its formation which includes ancient Greek and Roman. The author thinks that the idea of natural law appears in the early period of natural philosophy in Greek, develops in the human philosophy through sophists, Socrates, Plato and Aristotle and becomes popular in late Greek. It is the Stoics who make the idea of natural law beyond the city-states. The Stoics’ idea of natural law is accepted in ancient Roman. Its founder is Cicero who is a famous thinker in Roman. He makes the Stoics’ idea of natural law popular, systematical and theoretic and makes it complete. After Cicero, Roman entered into the period of Empire. Based on the social needs, the actual Roman jurists began to explain the reason and justice of natural law from the angle of freedom and rights. Thus they change the philosophers’ natural law in Greek into the jurists’ natural law. That is to say, they changethe philosophers’ world outlook into the jurists’ world outlook and lay the foundation of Roman law and the whole western law.The second chapter mainly describes the development and characters of the idea of natural law in the Middle Ages. The content includes five parts. The first part is about the effect how the ancient natural law influences the Christianity. The second part is about the divine natural law in early Middle Ages. The third part is about the divine natural law in the prosperous period of the Middle Ages. The fourth part is about the decline of the divine natural law at the end of the Middle Ages. The fifth part is about the characters of the natural law in the Middle Ages. In conclusion, there are three characters of the natural law in the Middle Ages. They are the characters of divinity, compulsion and bridge.The third chapter deals with the evolvement and characters of the natural law in modern times. The content includes four parts. The first part is about the seeds of rationalism natural law in modern times. The second part is about the independence of reason and the foundation of the natural law in modern times. The third part is about the development of natural law in modern times. The fourth part is about the characters of natural law in modern times. The author thinks that the seeds of natural law in modern times appeared in the Middle Ages. The recovery of Roman law, the. Renaissance and the Religion Reform lay the foundations of the idea for the natural law in modern times. The development of market economy and the rise of citizen society lay the foundations of economy and society for the natural law in modern times. Adapted to these, reason begins to break away from the bound of divinity. The reflection in ideology is that the relation between philosophy and theology begins to change and that the idea becomes dependent and free. At the same time, the origin and foundation of the natural law change fundamentally. The natural law is not thought of as the result of God any longer. Instead, the rules of natural law are considered to be inferred from the human’s reason. In other words, the natural law is the reflection of human’s reason. With the dependence of reason and the foundation of Dicarle’s rationalistic way of thinking, Grotius founded the rationalistic natural law in modern times. After Grotius, the rationalistic natural law continued to develop through Hobbes and Locke in England, Spinoza in Holland and Pufendorf in Germany. In the meanwhile, the rationalistic natural law became systematic and completed. Adapted to the political needs of the rising capitalist class, the rationalistic natural law has the characters of rationalism, rights and benefits.The fourth chapter describes the course of the natural law in modern times from decline to revival. The content includes three parts: the decline due to the criticism, the revival because of the reflection and the characters on the revived natural law. In this chapter the author first expounds the course of the decline about the natural law in modern times because of the criticism and negation made by some thinkers such as Rousseau, Kant, Hegel, Hume, Vink and some schools of legal thought such as history ,positivism, utilitarianism and the society in the eighteenth and nineteenth century. At the same time, the author discloses the fundamental reasons why the rationalism natural law in mdern times declines. After the second world war, people began to reflect the natural law with the transition from free competition to monopoly of capitalism and the violence of the Nazi fascism at the end of nineteenth century and the beginning of twentieth century. Thus the natural law revived surprisingly after the decline for more than one hundred years. The revived natural law can be divided into two parts. The first part is the theological natural law which is represented by Maritain. The second part is the common natural law which is represented by Fuller, Finnis, Rawls, Dworkin and so on. On the one hand, the revived natural law accepts some basic ideas of the traditional natural law, such as the emphasis on the relation between natural law and positive law, the relation between law and morality, the human rights etc.; on the other hand, it gets in touch with the practice more closely and makes a new explanation to the contents of the traditional natural law. For example, Maritain ,who is the main representative of the new Thomasism, combines the natural law with the modern democracy of capitalist class, human rights, humanitarianism, social reformation and the achievements in science and emphasizes that natural law is the philosophical base of rights. Maritain points out that natural law includes two elements which are ontology and epistemology. Compared with traditional natural law, the revived natural law shows these characters such as complexity, relativity and emphasis on society and so on.The conclusion summarizes the laws of evolvement of the natural law in western history. The author thinks that there are four laws of evolvement. The first law is that the spirit of reason runs through the course of evolvement of the natural law. The second law is that the course of evolvement of natural law is a dynamic and open one. The third law is that the evolvement of natural law is connected with political values. The fourth law is that the evolvement of natural law is a dialectical course.

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