Front Page Titles (by Subject) Nature and Law in Natural Law - Literature of Liberty, October/December 1978, vol. 1, No. 4
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“Nature” and “Law” in Natural Law - Leonard P. Liggio, Literature of Liberty, October/December 1978, vol. 1, No. 4 
Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
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“Nature” and “Law” in Natural Law
“Natural Law: A Twentieth Century Profile?” In The Changing Profile of Natural Law. The Hague: Martinus Nijhoff, 1977, pp. 246–290.
The historical function of the doctrine of natural law (as pointed out in A.P. d'Entrèves's Natural Law) has been to place rational limits upon the arbitrary exercise of political and legislative power. But this historical function has oftentimes been hobbled by criticism such as Norberto Bobbio's, who pointed out that philosophers tend to declare that natural law is not natural, while lawyers tend to declare that it is not law. The chief attacks against an objective, universal, natural law rest on the ambiguity of the concepts “nature” and “law” together with the notoriously subjective differences in our moral evaluations and judgments. The critics of natural law, however, seem forever to be “burying the wrong corpse.” Modern day defenders of natural law believe that they can rehabilitate the doctrine by stressing the “historicity of human nature and human existence” while rejecting naive views of human “nature” and “law.”
The latent ambiguity in “nature” becomes manifest in the contradictory institutions which are claimed, at different times and places, to be “in conformity with nature”: slavery and liberty, communism and private property, monogamy and polygamy. Existentialists and logical postivists alike reject an invariable or universal standard of morality in “human nature.” Others reject “natural” law because of the discrepancies between the claims of an unvarying natural standard and the reality of wildly differing moral codes. Likewise, scientific humanists favoring bio-cultural evolution are hostile to what they believe is natural law's endorsement of an unchanging morality based on a static, nonevolutionary human nature.
We can interpret “nature” in various ways. Natural law's quest for an objective basis for morals can mislead us to fabricate a moral absolute out of man's physical or biological nature. This approach forestalls a more sensible and comprehensive analysis of man's complex biological, emotional, and rational nature. Some would posit a more sophisticated notion of “natural” law by looking for a natural moral standard in man's “natural inclinations.” But natural inclinations stir up two problems: (1) “the gnoseological” (how are these inclinations to be identified?), and (2) “the metaphysical” (what is their ontological standing?). The central issue remains: “Is an inclination natural because reasonable or reasonable because natural?” In avoiding arbitrariness and relativism in order to guarantee an objective moral standard, we must take into account the historicity of man and his evolving nature rather than statically identify as human “nature” time- and culture-conditioned features of human existence. This static reading of natural law would be a “comouflaged legal positivism.”
No less ambiguous than “nature” is the concept of “law” when used in natural law. Stressing its universality and uniformity, the traditional defenders of natural law tended to understate the differences between physical laws (such as the law of gravitation) and the moral law. We can better understand law as an analogical term that unites different kinds of uniformity or patterns in behavior. The law of human nature is “prescriptive” since man's power of free choice allows him to disobey its edicts and behave less regularly than atoms. By contrast, the laws of the positive sciences are descriptive and not dependent on volitional acceptance. Human legal codes, finally, imply in their value-terms (“justice,” “legality,” “equality before the law”) a moral order that allows us to distinguish between good and bad positive laws by reference to a “higher law.” A rehabilitated natural law with “variable content” would allow natural law to function more coherently as a non-arbitrary, objective norm to judge government power and law.