II. The Natural Freedom of Man

1. The Basic Principle

According to natural-law perception, a person is free[32]. Freedom is therefore to be understood as external freedom, which can be defined as independence from the arbitrariness of other people[33]. The freedom of people is, first of all, absolute. It is not subject to any restrictions from nature and consequently not from other laws imposed from the outside. Upon entering into life, this freedom entitles humans to “ancestral possession” from which he has, at least, a moral right. [34] A person has this “ancestral possession” because, by nature, he has no ruler above him and therefore he is the highest-ranking entity of the discernible world.[35] The classification of people into rulers and those who are ruled is not a direct result of nature, but the result of the rational principles of the division of work in society[36]. Summarised, the freedom that a person is entitled to is characterised as “ancestral freedom” [37].

2. Intellectual historical development

a. The Ancients

The development of the history of ideas of freedom-rights as the natural property of humans traces back to the Ancient Greeks and Romans. The Sophists in the 5th Century BC taught that natural law was better and superior than the existing positive laws[38]. According to Hippias[39] restrictions exist between people only through arbitrary laws. By nature, all people and all fellow citizens of a community are free and equal. The Sophists tried consistently to encourage the abolishment of slavery. So has the phrase from Alkidamos been passed on: [40] „God created everyone free. No-one has been made a slave by nature.” With that, Alkidamos proclaimed that freedom is an inalienable human right[41]. Finally, Sophocles[42] said through Antigone, that natural law does not exist just since today and yesterday but forever and no-one knows when it came into existence. It is about the idea of a superior-positive right, a right that is superior to written law, which overlaps laws that are embedded in codifications but is independently valid.

According to Plato, it means that, within a state, a person should preferably tolerate everything, rather than add himself to a state order which is set out to neglect people. Aristotle[43] observed that law existed originally, through need, morality and custom. It exists independently from the coincidental opinions and decisions of human beings. The written, statutory law was, in contrast, devised for cases that can be decided one way or another. [44]

For Cicero[45] natural law in ancient Rome was the real law that was available in all times, before a written law had been created and before a governmental society had been established. According to him, Natural law is a divine law and is therefore absolutely obligatory for God and for human beings. No law-maker could annul this natural law or absolve themselves of an obligation. Through Cicero, natural law went from being a thing of philosophy to a thing of legal jurisprudence. Seneca wrote in “De Clementia” [46]: there is, however, something that the general law of living creatures forbids, to cause damage to human beings, although slaves were allowed.

Date: 2015-02-16; view: 785