NATURAL LAW Introduction

In jurisprudence the term ‘Natural Law’ means those rules and principles which are Meaning of natural law considered to have emanated from some supreme source (other than any political or worldly authority). Various theories have been propounded since very early times about the source, authority and relation of these rules (natural law) with law (positive law). These theories, though, mostly

divergent in nature and supporting contrary ideologies, proceed from the common

ground that the source of these rules is not Absolute justice any worldly authority. Some say that these rules have come from God; some find their sourced in nature, and others say that they are the product of ‘reason’. Therefore, these rules have given different names by different jurists (on the basis of their source) such as ‘Divine Law’, ‘Moral Law’, ‘Law of Nature’ or ‘Natural Law’, ‘Universal Law’, ‘Law of God’, ‘Unwritten Law’ and so on. The ‘natural law’ theories reflect a perpetual quest for

Natural law served divergent purposes

absolute justice. It has been an appeal to absolute justice, authority and rules higher than positive law. Sometimes these theories have been used to serve divergent purposes. It was used to support existing authority and also to foment revolutions against it. In the name of ‘Natural Law’ from time to time different principles and ideologies have been preached. But it should not be assumed that ‘Natural Law’ has had been a subject only of theoretical discussions among the jurists and

Natural law effected practical changes

it has no practical value. Under the influence of ‘natural law’ (‘jus naturals’) ‘jus civile’ of Romans was

transformed into a very comprehensive and cosmopolitan system. In medieval times the Church and the German Emperors in their fight against each other supported their cases by the theories of ‘natural law’. The moment for the freedom of individual against the absolute authority of state started on the name of ‘Natural Law’. After French

Revolution the rights of individuals given in the Constitution as ‘inalienable’ were said to be based on ‘natural law’. The American

Heraclitus pointed out that the reasons is one of the essentials of being. and (iv) Modern theories. (ii) Medieval theories. In the name of ‘natural law’ many jurists have asserted the validity and authority of International Law. American Judges.Constitution also incorporates many principles of natural law’. (1) ANCIENT THEORIES ORDER The Greek thinkers developed the idea of Political conditions caused the birth of ‘natural law’ idea ‘natural law’ and laid down its essential features. resisted social legislation. ‘natural law’ theories may be broadly studied into 4 classes:(i) Ancient theories. (iii) Renaissance theories. The unstability of political institutions and frequent changes in law and government in . in the name of ‘natural law’ principles. We shall present a brief discussion of ‘natural law’ theories in the historical order to give an idea of the various ideologies that it tried to establish from time to time and its effects on law.

) said that like natural physical law there is a natural moral Human ‘insight’ law. A very systematic and logical expression of the idea we find in Socrates. Socrates did not say that if the positive law is not in conformity with moral law it should be disobeyed. Against and changing tyranny.C. But the same conditions made some other jurists to think on a different line. This human ‘insight’ is the basis of judge the law. Socrates (470 to 399 R. According to him. This gave them the idea of ‘natural law’.small city states of Greece made some jurists to think that Law was for the purpose of serving the interest of the strong and was a matter of expediency. (Man possesses ‘insight’ and this ‘insight’ reveals to him the goodness and badness of things and makes him to know the absolute and eternal moral rules. of some Governments. Philosophers arbitrariness started thinking immutable and universal principles. it was rather Positive law to be obeyed the appeal of the ‘insight’ to obey it and perhaps that was whey he preferred to drink poison in obedience to law than to run away .

from the prison.” In this way ‘natural law’. But it is in Aristotle that we find a proper and logical elaboration of the theory. But even if it is deficient or falls short of the ‘natural law’ standard or . So far as its relation with positive law or legal justice is concerned. he possesses active reason by two ways which he can shape his will. His Pupil Plato supported the same theory.. By his reason man can discover the eternal principles of justice. Aristotle (384 to 322 B.). second. Aristotle defined ‘natural justice’ as “that which everywhere has the same force and does not exist by the Man’s reason the basis prople thinking this or that”. as opposed to ‘positive law’.C. he is the part of the creatures of God man part of nature in and.According to him. the law discovered by reason is called ‘natural justice’. The man’s reason being the part of the nature. has invariable contents. he said that “legal justice is that which is originally indifferent but when it has been laid down is not indifferent. man is a part of nature in two ways: ArtistoleFirst. Positive Law should try to incorporate in itself the rules of Even the deficient law to be obeyed ‘natural law’.

The theory of Stoics exercised great Influence of this theory Period and some of them paid high esteem influence upon the jurists during Republican to ‘natural law’. The fullest elaboration of ‘natural law’.principles. Therefore. he lives according to nature or lives ‘naturally’. Positive law must conform to the ‘natural law’. Hegel. in Greek legal philosophy. Man’s reason is the basis when he lives according to reason. Aristotle gave ‘natural law’ a very solid ground to stand upon. Man’s reason is a part of the ‘universal reason’. The laws of nature are of universal application and are binding on all men. His thesis has inspired great philosophers even in modern times. But in Roman system the . Philosophers like Kant. was made by Aristotle. ROME In Rome Stoics built up on the theory of Aristotle but transformed it into an ethical Stoics theory. the entire universe is governed by ‘reason’. it should be obeyed. It is the moral duty of man to subject himself to the ‘law of nature’. Kelsea and Stammler owe much to him. According to them. The law should be reformed rather than to be broken.

In ancient Roman jurists we find three divisions of law : ‘jus civile’. ‘jus gentium’ .theory of ‘natural only to law’ did not remain confined theoretical discussions. The body of law which grew up in this way was called ‘jus gentium’ and it become a part of the Roman law. It represented the good sense and the universal legal principles and therefore. In this way natural law exercised a very constructive influence the Roman law. Later on jus civile’ and ‘jus gentium’ became one when Roman citizenship was extended to all except only a few classes of people. But still there existed a conception of ‘natural law’ to which the new transformation did not conform because slaves were still deprived . They used ‘natural law’ to transform their narrow and rigid system into a cosmopolitan one. Romans were very practical people. and ‘jus natural’s. Roman civil law or ‘jus civile’ was only for Roman citizens but on ‘natural law’ principle Roman magistrates applied those Natural law effected legal developme nt in Rome rules which were common with foreign laws to foreign citizens also. conformed to ‘natural law’.

Under the foreign rule no proper attention could be paid to the study of this legal system. But the frequent changes in the political system and government and numerous foreign invasions one after the other prevented its systematic and natural growth. They Hindu system developed a very logical and comprehensive body of law at very early times. Whether there was any conception of 'natural law’ (in the sense in which the term is understood in modern . majority of the jurists did not enter into this question. Though there were some jurists who considered 'natural law' superior to 'positive law' and suggested that in case of conflict between the two the 'positive law' may be disregarded. Many theories and principles of it are still unknown and uninvestigated. Roman lawyer did not bother themselves with the problem of conflict between ‘positive law' and 'natural law'. INDIA Hindu legal system is perhaps the most ancient legal system of the world. A sense of 'justice' pervades the whole body of law.of the benefits of the new law.

(In the case of divergence between Dharmashastras. Law is given in ‘Shruti’ (that which is heard-known as Vedas) and ‘Smrities’. what with was its authority and its relation 'positive law' are the question which cannot be answered with great certainty. Source of law is God However. and if there was any. some principles and provisions can be pointed out in this respect. a principle based on reason has been declared to be the right one). it on Shastras alone. According to the Hindu view. The king is simple to execute that law and he himself is bound by it and if he goes against this law he should be disobeyed. there is failure of Dharma.times) or not. by a judgment devoid of reason). Manu also says :- . law owes its existence to God. Reason and justice have been considered by ancient Hindu Smritikars as guides in legal matters:NATURAL LAW Tests showing the importance of reason and justice (Decision should not be given by basing. Purans are full of instances where the kings were dethroned and beheaded when they went against the established law.

Principles of justice were considered as guides in matters of interpretation. To attain this end the physical instincts of the body should be suppressed.used in above texts is not in the same sense in which it has been used by Stoics or Aristotle.[The Vedas. the wise have declared to be the quadruple direct evidence of law. So in a different form and in a limited way there were principles of 'natural law' in ancient Hindu law. it should be overcome and destroyed. Nature misleads and corrupts man. Augustine. as government. the union with divine is the end of law. Smrities. Important of them is St. it plays a very important part in interpretation. or property . DARK AGES During Dark Ages the early Christian Fathers expressed views on the 'law of Nature to be overcome nature' from a theological base. According to him. and. approved usages. The insti- tutions of man. What is agreeable to one’s ‘soul’ suggests reasons Though the reason ----. therefore. and what is agreeable to one's soul (good conscience).

This approach is completely in contrast to the theories we have discussed earlier. (2) MEDIEVAL THEORIES CHRISTIAN FATHERS Catholic philosophers and theologicians of the Middle ages gave a new theory of ‘natural law’. His views about society are similar to that of Artistotle. .” He divided law into four categories: (a) Law of God. Their views are more logical and systematic. If human laws are contrary to the law of God. Social organization and state are natural phenomena. Though they too gave it a Acquinas theological basis. He defined law as “an ordinance of reason for the common good made by him who has the care of the community and promulgated. in medieval times. Thomas Acquinas’ views may be taken as representative of the new theory.etc. (b) Natural Law. are the products of sin. they departed from the orthodoxy of early Christian Fathers. they are to be disregarded. Christian Fathers modified this approach and gave a respectable place to ‘natural law’. which is revealed through the reason of man. Latter on.

This human law or ‘positive law’. must remain within the limits of that of which it is a part. Thomas justified possession of individual property which was considered sinful by the early Christian Fathers.(c) Law of scriptures or Divine Law. Therefore. In this way Thomas very beautifully blended the political philosophy of Aristotle with that of the Christian faith and built a very logical and elastic theory of ‘natural law’. He pleaded for establishing the authority of the Church over law. This part is applied by human beings to govern their affairs and relations. therefore. Natural law is a part of divine law. and (d) Human Laws. Church is the authoritative Church as the law giver interpreter of the law in Scriptures. He said . Positive law is valid only to the extent to which it is compatible with ‘natural law’ and thus in conformity with ‘eternal law’. It is that part which reveals itself in natural reason. It means that positive law must conform to the law of the scriptures. it has the authority to give verdict upon the goodness of positive law also.

Later on. They contended that the State was sovereign in all legal matters and it has exclusive authority over law. Merits of Acquinas’ theory This theory was opposed by the German Emperors. Acquinas approach has its merits. He is to proceed under the guidance of Divine law. Though he said that human law is valid only in so far as it is in conformity with ‘natural’ or ‘eternal law’. It is necessary “in order to avoid scandal or disturbance …. They too took ‘natural law’ in their support. Catholic jurists of modern times have built upon Acquinas but have modified it considerably . he added that man should obey it even if it is unjust. He identified ‘natural law’ with reason. He attached sanctity to social and political organizations and pleaded hard for preserving social stability. though this ‘reason’ was the reason of the Catholic Church. A man should even yield his right”. the theological garb was shaken off and ‘reason’ became the basis of the new secularized ‘natural law’ theories. These theories were given a fatal blow by Renaissance movement.that monarch has only limited powers.

These factors. One implication of this conception was that the state must have full sovereign powers. ‘natural . ‘Rationalism’ became the creed of the age. Colonization caused a rivalry among the states. ‘Reason’ is the foundations stone of all these theories but it is secularized ‘reasons’ The and not the law theological ‘reasons’. New theories supporting the sovereignty of the State were propounded. New and developed branches of knowledge shattered and the discoveries foundation of of science established values. to combined together. (3) RENAISSANCE THEORIES INTRODUCTION This period marks a general awakening and resurgence of new ideas in all the fields of knowledge. created forces overthrow the dominance of the church.which was necessary under the changed conditions. It gave birth to the conception of nationality. Secondly the development in the field of commerce created new classes in the society which wanted more protection from the states.

Thus society came into existence. is that in the beginning man lived in the natural state. by others. They under took to respect each other and live in peace. Then men entered into an agreement (known as pactum unionis) for the protection of their lives and property. that we find it in the form of a concept. They had neither any Government nor any law.theories’ of this age have also the same characteristic. who had united together earlier. undertook to obey an authority and surrendered the whole or a . The concept. who lived in the first half of the 14th century. (The former theory came to support the absolute power and the latter the freedom of the individual. This state has been described by some as of hardship and oppression and. These theories proceed from the supposition that a ‘social contract is the basis of society’. Though ‘social contract’ is mentioned in Plato’s ‘Social Contract’ Republic also. it is with Italian Marsilius of Padua. Then they entered into a second agreement (known as pactum subjectionis) by which the people. in brief. as of bliss and joy.

The views of some of these philosophers are given below:Grotius Grotius (1583 – 1645). It is a self supporting 'reason' of the man. that the concept of society of these philosophers (of ‘social contract’ theory) is individualistic. that the people are the source of political power and. Now. It should be carefully noted that the 'reason’ of Grotius is not the 'reason' of Thomas. second. Thus ‘Government’ or ‘Sovereign’ or ‘Ruler’ came into being. His view.part of their freedom and rights and the authority on its part guaranteed everyone of them the protection of his life. It is the duty of the sovereign to safeguard the citizen because the former was given power only for that purpose. property and to a certain extent liberty. Grotius built his legal theory on ‘social contract’. in brief. . The law of nature is discoverable by man's 'reason’. Implication s of the theory The implications of the ‘social contract’ theory are many and far reaching but two of them are very important first. is that political society rests on a ‘social contract’. The soveriegn is bound by 'natural law'.

be disobeyed. it is duty of the subject to obey him. that the governments in their foreign relations are . he says that the ruler is bound by the ‘natural law’ and. on the other hand. This. that the governments are equal. second. Should the Ruler be disobeyed if he does not act in conformity with the 'natural law' ? Grotius says that the howsoever bad the ruler may be. It was essential for establishing international peace and order of which. He has no right to repudiate the agreement or to take away the power. On the one hand. The reason of this inconsistency is that Grotius' theory was propounded to serve some other ends also. From the 'social contract' theory he deduced a number of principles in this regard: First. His main concern was the stability of the political order.the question may arise. he expresses the view that he should in no case. On this theory Grotius laid the foundations of International law. he was a sincere advocate. view of Grotius creates an inconsistency in his theory.

in no case. Hobbes is a supporter of absolutism. that the promises made between the governments are of a binding nature because to fulfil a promise is a principle of 'natural law’. society also. Therefore. Hobbes (1588-1679). Hobbes' theory also proceeds from the 'social contract'. These misery and pain He desires natural inclinations induced him to enter into a contract and surrender his freedom and power to some authority. This can be achieved only by establishing a superior authority which must command obedience. The Church too has no powers over the Sovereign.perfectly free. The idea of self- preservation and avoiding are inherent in his nature. Subject has no rights against the sovereign and the latter. Though . Hobbes Before the' 'social contract' man lived in a chaotic state. The law of nature can be discovered by 'reason' which says what a man should do and what be should not do. third. Man has a ‘natural desire for security and order. can be disobeyed.

Austin owes much to him. the state emerged very powerful. His support for absolutism Hobbes’ theory of ‘natural law’ is a plea to support the absolute authority of the sovereign. He advocated for an established order. A new interpretation of ‘natural law’ was necessary in order to support the individual against the . It went to undermine the importance of the individual. it is not more than a moral obligation. Now. his theory came to support the monarch. But the subsequent developments made the individual to desire some freedom. Then came Renaissance and the change conditions and the new political theories strongly advocated for the sovereignty of the state. Locke Locke (1632-1704). Individualism. materaialism. It has been pointed out earlier that during the middle ages the Ghurch remained supreme. and many other later jurists have also taken inspiration from him. During the Civil War in Britian. utilitarianism and absolutism all are interwoven in the theory of Hobbes.he makes a suggestion that the sovereign should be bound by ‘natural law’.

the laws given by it are valid and binding but when it ceases to do that its laws have no validity and the government may be overthrown. According to Locke. So long as the government fulfils this purpose. the state of nature was a golden age. liberty and property he retained with himself. Locker’s theory is contrary to that of Habbes. under this contract. namely. Man. His natural rights as the right to life. only the property was insecure. It was for the purpose of protection of property that men entered into the ‘social contract’. did not surrender all his rights but only a part of them. Locke championed this cause. Locke’s view was a support of the Glorious Revolution (1688) in a theoretical form. to maintain order and to enforce the law of nature. He interpreted the ‘nature law’ and the ‘social contract’ in a new way.power of the sovereign. The purpose of government and law is to uphold and protect the nature rights. He . His plea is for a constitutionally limited sovereign. The former supports liberty whereas His support for individual liberty the latter supports authority.

His ‘inalienable rights’ of the individual came to be embodied in many constitutions and were guaranteed to the individual. ‘social contract’ is not a historical fact but a hypothetical construction of reason. According to him.exercised a great influence and his writings commanded almost scriptural respect in the 18th century. It led to parliamentary democracy. By the ‘social contract’ men united for the preservation of their rights of freedom and equality. It is the duty of every individual to obey the ‘general will’ because in doing so he His theory indirectly obeys his own will. for this they surrendered their rights not to a single individual sovereign but to the community to which Rousseau gives the name of ‘general will’. The existence . Before this contract man was happy and free and there was equality among men. ‘Social contract’ ‘natural law’ received a new interpretation from Rousseau. The 19th century’s ‘laissez faire’ theory in economics derived inspiration from his views. Rousseau and Rousseau (1712-1778).

its influence was great.of ‘general will’ of the State is for the protection of freedom and equality. more or less. It inspired the French and gave and American to Revolutions impetus nationalism. In brief. (4) MODERN THEORIES NINETEENTH CENTURY The 'natural law' theories reflected. the great social. economic and political changes which had taken place in Europe. His ‘natural law’ theory stands for the freedom and equality of men. He is in favour of people’s sovereignty. The state and the laws made by it both are subject to the ‘general will’ which creates the state. If the government and laws do not conform to the ‘general will’ they are to be over-thrown. Though Rousseau’s theory was full of inconsistencies. . Rousseau lays emphasis on the community and departs from Locke who laid emphasis on the individual. His ‘general will’ was glorified by later jurists and some philosophers such as Fichte and Hegel deified it. Thus his theory prepared ground for new theories of government and law to come.

though solitary voices asserting the superiority of 'natural law’ are still heard. A reaction against this abstract thought was overdue. in general. The problems created by the new change and developments demanded practical and concrete solution. inflicted blows after blows to the edifice of 'natural law' and shattered its foundations. . Modern scepticism preached that there are no absolute and unchangeable principles. thus generated. They heralded a new era in the field of legal thought. the nineteenth century. The forces. was hostile to the 'natural law’ theories.19th century hostile to ‘natural law’ 'Reason' or rationalism was the spirit of the eighteenth century thought. The excessive individualism gave way to a collectivist outlook. Therefore. On the otherhand. the historical researches disclosed that the 'social contract’ was a myth. The historical and analytical approaches to the study of law were more realistic and attracted jurists.

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