Professional Documents
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REASEARCH PAPER
ON
DEVELOPMENT OF
JURISPRUDENCE IN MEDIEVAL
PERIOD
AUTHORED BY:
SARTHAK MISHRA
3rd year
Hidayatullah National Law University
OBJECTIVES
To discuss the concept of Natural law.
To discuss the various social contract propounded during the renaissance period with
reference to its relation to the Natural Law.
RESEARCH METHODOLOGY
The method of research adopted in this project is secondary in nature. I have referred sources on
the internet as well as books on social contract theories as well as that of jurisprudence for the
clarification of the concepts of natural law and the social contract theories available in the
university library besides adding my personal views and knowledge of the topic.
INTRODUCTION
In medieval texts the term jus naturale can mean either natural law or natural right. Jus
naturale in the former sense, and also lex naturalis, mean the universal and immutable law to
which the laws of human legislators, the customs of particular communities and the actions of
individuals ought to conform.1 It is equivalent to morality thought of as a system of law. It is
called "natural" either (a) because it is taught by natural instinct, i.e. some capacity innate in
human beings, or (b) because it is accessible to "natural reason", i.e. to personal reflection
independent of any special revelation from God, such as the Christian faith claims to be, and
independent of the moral authority of other human beings; or for both reasons. This study of
social and political states has linked philosophers across the ages. Some questions that have
occupied these philosophers' discussions are: Was there ever a period of time when men lived
outside of societies and what was it like? How did men escape that period and enter into a new
time of societies? Was it through force or mutual agreement? Once a form of government is
chosen, or appointed, who rules and is the rights of the individual preserved? Several of these
questions are addressed by both Thomas Hobbes in Leviathan, and by John Locke in Two
Treatises of Government.2 Both Hobbes and Locke wrote of that period prior to the formation of
societies, referred to as the State of Nature, when individuality, rather than collectivity, described
mankind. Each also wrote of how mankind was able to leave the State of Nature and form civil
societies. This transition from the State of Nature to government was considered a contract by
both of these 17th century philosophers. Hobbes is traditionally labeled as having an alienation
theory, while Locke is considered as having an authorization theory. The fundamental difference
between alienation and authorization theories concerns what happens to an individual's rights
once the contract is executed. Alienation theory considers the contract as irrevocable. Jean
Hampton wrote in Hobbes and the Social Contract Tradition that the individuals rights are
surrendered to the Sovereign.3 The only justifiable way to retrieve one's rights after the contract
is initiated is to form a new contract. Authorization theory, on the other hand, considers the
1 LEO STRAUSS, NATURAL LAW, International Encyclopedia of the Social Sciences, 1968; NATURAL LAW, Columbia
Electronic Encyclopedia, 6th ed., Columbia University Press. 2007.
2 THOMAS HOBBES, LEVIATHAN, ed. C.B. Macpherson, New York, Penguin Books, 1985; JOHN LOCKE, TWO
TREATISES OF GOVERNMENT, ed. Peter Laslett, Cambridge University Press, 1991.
3 JEAN HAMPTON, HOBBES AND THE SOCIAL CONTRACT TRADITION, p. 3, Cambridge University Press, 1986.
4 Ibid.
CHAPTERISATION
CHAPTER 1
To discuss the concept of Natural law theory of Jurisprudence.
Natural law theory has been interpreted differently at different times depending on the needs of
the developing legal thought. But the greatest attribute of the natural law theory is its adaptability
to meet new challenges of the transient society.5 The exponents of natural law philosophy
conceive that it is a law which is inherent in the nature of man and is independent of convention,
legislation or any other institutional devices.
Dias and Hughes describe natural law, as a law which derives its validity from its own inherent
values, differentiated by its living and organic properties, from the law promulgated in advance
by the State or its agencies.
Similarly, according to Cohen, natural law is not is not a body of actual enacted or interpreted
law enforced by courts, it is in fact a way of looking at things and a humanistic approach of
judges and jurists. It embodies within it a host of ideals such as morality, justice, reason, good
conduct, authority. Some thinkers believe that these rules have a divine origin, some modern
sociological jurists and realists have sought resource to natural law to support their sociological
ideology and the concept of law as a means to reconcile the conflicting interests of individuals in
the society.6
A widespread concept of political and legal thought, denoting the aggregate or collection of
principles, rules, laws, and values dictated by human nature and therefore seemingly independent
of concrete social conditions and the state. Natural law has always appeared as a value category
relative to the legal order in force in a given political society and to the system of social relations
consolidated by such a legal order. In views serving as apologetics this system and the existing
laws are declared to be in conformity with natural law and natural justice; views calling for
social transformations declare the society and its laws to be in contradiction with natural law and
5 R.W. M. DIAS, LEGAL THEORIES OF JURISPRUDENCE, 5th ed., Cambridge University Press, 1987.
6 COHEN, READINGS IN JURISPRUDENCE AND LEGAL PHILOSOPHY, p.660, Harvard University press, 1951.
CHAPTER 2
To discuss the various social contract propounded during the renaissance period with
reference to its relation to the Natural Law.
In the present chapter the social contract theories of Hobbes, Locke and Rousseau has been
discussed separately with reference to the natural law principle and thereby showcasing its
departure from the same.
Natural Law and the Hobbesian Social Contract
For centuries, political philosophy has dealt with methods of making the legal ordering of society
mirror what is moral and just. Central to this concept is whether or not laws in themselves are
just and moral, and how human beings with different traditions and experiences can arrive at
moral laws, reject immoral laws, and discern between the two. This concept of natural law has
been arrived at in different ways, and in some sense Thomas Hobbes version of the social
contract can be viewed not only as a competing version of natural law theory, but the modernday interpretation in most Western-style democracies as the basis for moral lawmaking.
The concept of natural law is largely attributed to St. Thomas Aquinas, a Dominican priest
during the Scholastic era where the reintroduction of Aristotelian philosophy to Western
Civilization had become all the rage. This, theory was undoubtedly borrowed from the Greeks
themselves, and most notably from Aristotles discussion on the topic of goodness in the
Nichomachean Ethics. Aquinas borrowed Aristotles understanding of goodness and happiness
and incorporates it into Catholic theology in the magnum opus Summa Theologicae. Aquinas
had made the argument in favor of natural law and had suggested the same being reflective of the
eternal law itself. As the natural law is the inherent normative quality in nature, not only does
Aquinas claim that all m en are bound to it, but by its very nature as a reflection of the eternal
law, it is both absolute and immutable.8
This was an idea that Hobbes violently rejected. The first and most basic premise that Hobbes
argues is the equality of man in his natural state, and that from this natural state springs a
constant state of warfare based on three motivators: competition, diffidence, and glory. Hobbes
states that there can never be law, and without law there is nothing to contravene, and therefore
8 WALTER FARRELL, A COMPANION TO THE SUMMA, Ch. XX, Vol. III, Sheed & Ward, 1939.
to
antecedent and independent thought processes. He rejected this dualism, insisting that only the
most elementary kind of thought is possible without words to solidify abstract ideas and
relations. Though man has the potential for higher thought, without language this capacity can
never be realized.
Rousseaus Rejection of Natural Law Principle
There are other reasons which some have seen as evidence that Rousseau rejected natural
law. In his first version of the Social Contract, there is a chapter which contains a
critique of natural law as expounded by Diderot in an article for the Encyclopedia. Neither
the idea of God nor of natural law is innate since both have to be taught to men. It may
be a law of reason, but the reason sufficient to apprehend it develops only after the rise
of those passions which render its dictates impotent 13. This contention reflects Rousseau's
13 THE POLITICAL WRITINGS
Press, Oxford, 1962
OF
CONCLUSION
Under the leadership of anthropologists, analyses of human beings internal process of response
to the exigencies of existence within a particular cultureto conscious and subconscious psychic
drives and motivationsdeeply affected the jurisprudential study of law and society and helped
to bring natural-law thinking to a 19th-century nadir. In the anthropologist Bronisaw
Malinowskis most mature statement on the matter, he distinguished four major meanings of the
word law as important in understanding the growth of civilization. They included laws of
nature in the scientific sense of rules governing humans conscious adaptations to the
environment; rules of efficiency and convenience according to which the group lives; rules
for conflict adjustment; and rules about enforcement of the last two. No conception of natural
law, which had engaged earlier thinkers for two millennia and more, was included.
In addition the vehement criticism of the natural law principles by the social contractualists
ignited the gradual downfall of the natural law principle that had covered up the area of the legal
for well a period of more than seventeen centuries. This process was sped up by the emergence
of new schools of jurisprudence including Analytical School of Law, Historical School of Law
and Sociological school of Law.
BIBLIOGRAPHY
THE POLITICAL WRITINGS
OF
IN
JURISPRUDENCE
AND
ed.1951).
R.W. M. DIAS, LEGAL THEORIES OF JURISPRUDENCE, Cambridge University Press, (4th ed. 1976).