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THE EUROPEAN PIONEERS

Early European theorists considered law as an absolute and autonomous entity, unrelated to the structure and function of the society in which it existed (Feinberg and Coleman,

2008). The idea of natural law forms the basis for understanding (Donnelly, 2007) and can be traced back to ancient Greece. Aristotle maintained that natural law has a universal validity and is based on reason that is free from all passion (Daston and Stolleis, 2010). St. Thomas Aquinas argued that natural law is part of human nature, and through natural law, human beings participate as rational beings in the eternal laws of God.

The idea of natural law is based on the assumption that the nature of human beings can be known through reason, and that this knowledge can provide the basis for the social and legal ordering of human existence (Belliotti, 1992). Natural law is considered superior to enacted law. An appeal to higher principles ofjustice is always permissible from the decrees of a lawmaker. When enacted law does not coincide with the principles of natural law, it is considered unjust.

Under the influence of natural law, many European scholars believed that law in any given society reflected a universally valid set of legal principles based on the idea that through reason, the nature of humanity can be ascertained (Daston and Stolleis, 2010). This knowledge could then become the basis for the social and legal order of human existence. From the middle of the nineteenth century, however, the idea of natural law was largely displaced by historical and evolutionary interpretations of law, which considered the legal and the moral to constitute two quite separate realms. These interpretations sought to explain the law by reference to certain evolutionary forces that pushed the law forward along a predetermined path. Many theorists sought to discourage philosophical speculation about the nature and purposes of law and concentrated on the development and analysis of positive law laid down and enforced by the state. The most notable among these scholars include Baron de Montesquieu in France, Herbert Spencer, and Sir Henry Sumner Maine in England. I shall now consider their theories in some detail.

 
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