Decline of Natural Law Theory In 19th Century

A FINAL DRAFT SUBMITTED FOR THE PARTIAL FULFILMENT OF THE COURSE

JURISPRUDENCE-I FOR THE DEGREE OF B.A.LL.B.

PROJECT BY:

NAME: Mukul Rathore

COURSE: B.A. LL.B. (Hons.)

ROLL NO: 1742

SEMESTER: 5th

SUBMITTED TO:

Dr. MANORANJAN KUMAR

ASSISTANT PROFESSOR OF LAW

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR,

MITHAPUR, PATNA – 800001
August

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DECLARATION
I, hereby declare that the project entitled “Decline of Natural Law Theory In 19th Century”
submitted in partial fulfilment of the requirements for award of the degree of B.A.LL.B. at
CHANAKYA NATIONAL LAW UNIVERSITY, is an authentic work and has not been
submitted to any other University/Institute for award of any degree/diploma. 

MUKUL RATHORE
(1742)
B.A.LL.B.
THIRD YEAR.

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ACKNOWLEDGEMENT

Firstly, I would like to express our immense gratitude towards our institution Chanakya National
Law University, which created a great platform to attain profound technical skills in the field
of B.A.LL.B. in the subject Law of constitution, thereby fulfilling our most cherished goal. 

I sincerely express thanks to my guide and teacher Dr. Manoranjan Kumar who helped me
complete this project to the best of my capabilities and patiently attended to my queries and
doubts.

I express deep gratitude to my family and friends who continue to push me in the daunting times
of project submission and ultimately, whether directly or indirectly, helping me complete this
project successfully. 

MUKUL RATHORE
(1742)
B.A.LL.B.
THIRD YEAR.

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Contents
INTRODUCTION...........................................................................................................................1
Historical Perspective of Natural Law.........................................................................................1
AIMS AND OBJECTIVES:........................................................................................................2
RESEARCH METHODOLOGY:................................................................................................2
HYPOTHESIS:............................................................................................................................2
SOURCES OF DATA:.................................................................................................................2
LIMITATION:.............................................................................................................................2
MODE OF CITATION................................................................................................................2
REASONS FOR THE DECLINE OF NATURAL LAW THEORY IN 19TH CENTURY..............3
Emergence of Capitalistic economy............................................................................................3
Indeterminacy of common law in 19th Century...........................................................................4
Codification.................................................................................................................................5
Rise of Sovereign National States...............................................................................................6
Rise of legal positivism...............................................................................................................7
The influence of Utilitarianism....................................................................................................8
CONCLUSION..........................................................................................................................10
BIBLIOGRAPHY......................................................................................................................11

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INTRODUCTION
This essay delves into explicating the reasons for rejection of Natural law in the 19 th Century and
its revival in the 20th Century. The essay has, in details, provide reasons for rejection of natural
law which cut across all sphere of life in the 19 th Century. This includes politics, economy and
society of the time. After the rejection of Natural Law, as history unfolds itself in the 20 th
Century, natural law revived with a new form altogether different from the tradition conception.
This revival of natural law was caused with several reasons which this essay dealt with them
extensively. It is important before going direct to the reasons for rejection of Natural law, to look
a short historical perspective of development of natural law to have historical context.

Historical Perspective of Natural Law

Natural law is thought to have been introduced by the Ancient Greek Philosophers, Socrates,
Plato and Aristotle purporting that law existed for the purpose of facilitating the pursuit of good
life. In Roman Era, Natural law was perceived by Cicero as right reason in agreement with
nature. However, in medieval era Saint Thomas Aquinas took it to its most solid form where
natural law was perceived in connection to supernatural powers. 1 In the modern Era, natural law
laid foundation of secularization. It was conceived in terms of nature and reasoning. Greater
contribution of the modern in development of natural law is attributed to Hugo Grotius, Thomas
Hobbes.
Toward the end of the 18th Century Natural law begun to lose favour and in the 19 th Century
natural law was hibernating. It was rejected by prevailing social, economic and politics of the
time. Legal positivism emerged as a default legal theory of the 19 th Century. Interestingly,
occurrence of two World Wars and social circumstances of the 20 th Century laid a fertile ground
for natural law to revival. Thus, in 20th Century Natural law revived again in new a new
paradigm shift.

1
Brian H Bix, Jurisprudence: Theory and Context, London: Sweet & Maxwell, 2009, p. 68

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AIMS AND OBJECTIVES:

The aim of the researcher is to critically analyse the reasons for the decline of natural law theory
in 19th century.

RESEARCH METHODOLOGY:

The researcher will be relying on Doctrinal method of research to complete the project.

HYPOTHESIS:

Researcher presumes that the scientific development and emergence of capitalist economy in 19th
century is the reason for decline in natural law theory.

SOURCES OF DATA:

The researcher will be relying on both primary and secondary sources to complete the project.

LIMITATION:
 There is a time limitation for the researcher to finish the research.

 The researcher is limited to his own self for the research.

MODE OF CITATION

The researcher has used blue book mode of citation for the purpose of citation in his research.

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REASONS FOR THE DECLINE OF NATURAL LAW THEORY
IN 19TH CENTURY
The 19th Century marked with progress in science and technology. New philosophy as a result of
enlightenment project in 18th Century started to gain momentum. Materialism philosophy which
were taken to its logical conclusion by the Karl Marx was influential. In this epoch, a German
Philosopher, Hegel inspired a lot of young thinkers in this generation who started to see reality in
terms of dialect movement. Many new fields started to emerge, for instance, Charles Darwin by
this time had published his Magnus Opus entitled origin of species which geared anthropological
studies. Also, Auguste Comte a French Philosopher emphasized positivism as new philosophy of
solving social problems. Those who sought an understanding of the relationship between self and
reality, the individual and society, discovered laws of social order which had the same
inevitability as the laws of nature, but they did not seek these laws in Natural law.2

Emergence of Capitalistic economy

In the 19th Century, the economic liberation was at the peak. Right of property includes naturally
freedom of contract. Freedom of contract was at this time held in such reverence that it prevented
any slight limitation on the operation of market. 3 The state had no business to interfere in
relationship of master and work men, any more than in any other form of private contract. This
position was reinforced economic theory of the time, going back to Adam Smith and his book
entitled Wealth of Nations which saw the unimpeded operation of Market forces, not only in
international trade but in economic relation too, as likely in the long run to the best promote
economic growth and thus the happiest overall result. 4
In this Era, the capitalists knew that natural law could not be their legal theory simply because it
was neither useful not reliable. For this reason, capitalists needed certainty in the trade affairs.
Thus, the emergence of contractual obligation, the rules of commerce ought to have been clear,
exact and known by everyone. Unfortunately, natural law of the time could not guarantee that
thus nature of the economy played a great role in rejection of Natural law.
In addition, Karl Marx argued that substructure which are material conditions comprises of
2
Freeman, M., Introduction to Jurisprudence, London: Sweet & Maxwell, 2008, p. 177.
3
Ibid., p.306
4
ibid

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forces and relation of production determine the superstructure which include law, nature of
justice, state just to name a few. 5 In the same way, it can be argued that the economy of the 19 th
Century which was capitalistic in nature influenced the conception of law which led to the legal
positivism, hence rejection of natural law. In 19th Century, the industrial revolution merchandised
Europe, created the economy of capital and labour. These factors created enormous increase in a
number of institution which law grew rapidly to accommodate them. 6 For instance, Britain which
led the world in industrialization and shocked the world by her wealth, the traces can be seen in
the earliest Factory Acts of the 1800s and in the relaxation of the laws against combination of
workmen by the Combination Act of 1825.7

Indeterminacy of common law in 19th Century

The common law in the 19th century was considered as expression of immemorial custom and
5
Hernecker, M., Elementary Concepts of Historical Materialism: Base and Superstructure, [Online] Available at:
https://www.marxists.org/history/erol/periodicals/theoretical-review/tr-12-1.pdf
6
Kelly, J., Op. Cit., p. 306.
7
ibid

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long standing practice which embodied natural reason.8 Bentham regarded this as dangerous
fallacies, appeal to the law of nature were nothing more than private opinion in disguise. 9 In this,
Jeremy Bentham sought to subject common law to cold light reason, he pointed out
inconsistency and confusion of the draconian criminal law with its disproportionate sanctions,
including capital punishment. Also, legal jargon and the intricacy of writ system were some of
the features of common law.10 Bentham fiercely attack of common law extended to the language
of lawyers as foreign to lay men, thus multiply lawyer’s fee. The rules of evidence were
ambiguous, complex and irrational. This critique of Bentham inspired major legislative reforms
of English Law of Evidence of 1843, 1851, 1898.
The law was puzzling network of technical rules created by the lawyers which served their
purpose and interests.11 Most people were poor and ignorant to derive any benefit from the
process which purported to be fair and rational. The role of precedent was mocked by Bentham
as Dog Law.12 He regarded the doctrine of precedent as pretence of immemorial customs laid by
incomprehensible web of unjust law. He further articulated that superstitious respect of the
ancient customs ensure that the senseless decision of the past is repeated in the future.13
Furthermore, the doctrine of stare decisis produces greater rather than less arbitrariness.14 This is
because despite rigidity to avoid following a precedent judge resort to legal fiction of equity,
natural law which render law uncertain.15 The judge is at liberty either to observe it or depart
from it.16 The doctrine defeated its own purpose. Indeterminacy of common law was clear.
Unwritten law was basically vague and uncertain. It cannot, Bentham argue, provide a reliable,
public standard which can reasonably be expected to guide behaviour. In this, Bentham
advocated for positivistic conception of law which basically is purposive or functional one based
on the principle of utility.17 The common law was contrary to positivistic conception because it

8
Wacks, R., Understanding Jurisprudence: An Introduction to Legal Theory, Oxford: Oxford University Press,
2012, p. 61.
9
ibid
10
ibid
11
ibid
12
ibid
13
ibid
14
ibid
15
ibid
16
ibid
17
ibid

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could not express rules with clarity and exactness for reason that its very validity was in
suspect.18 Therefore, the natural law legal theory which permeated common law was rejected on
this base.

Codification

The most achievement in this field was a French Code Civil, planned since before the end of 18 th
Century and coming into force in 1804. 19 This Code won world-wide admiration and was an
important influence in drafting the later code of Belgium and Holland, Italy, Spain. 20 Moreover,
the spirit and the historical circumstances in which it had been conceived had important effect in
19th Century’s conception of law which was positivist one, seeing essential and only authentic
form of law in legislation in law laid down, ius positum, whence positivism.21 The leading idea of
French codifier had been excluded uncertainty and arbitrariness in the administration of law, and
for that purpose they wished to reduce possible interpretation and creative function of judge
which they distrusted.22 The judge was to be no more than a machine intelligently applying a
body of clear and stable rules.23
In England there was no codification or any other external development which could point out as
explaining the positivist. However, Bentham formulation of law as sovereign was taken up and
build into system by his disciple John Austin who published a book entitled Jurisprudence
Determined in 1832.24 This account of law as command came to dominate England and
commonwealth countries till the end of 19th Century.25

Rise of Sovereign National States

In this Century, the problem of the nature and proper function of the law had to be rethought

18
ibid
19
Kelly, J., Op. Cit., p. 312.
20
Ibid., p. 313
21
Kelly, J., Op. Cit., p. 313
22
ibid
23
Wacks, R., Understanding Jurisprudence: An Introduction to Legal Theory, Op. Cit., p. 62.
24
ibid
25
ibid

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from scratch.26 Many thinkers of this era started to view reality in a profound different way. For
instance, Jeremy Bentham attacked the social contract theory of 18 th Century and discredited
along with natural law and natural rights as fictitious and false. This was the most significant
political development took place in England, Germany and France because for jurists like
Bentham and Austin sovereignty is a matter of social fact of the habit of obedience. For Austin,
sovereignty has two dimensions, that sovereign is habitually obeyed but also, sovereign does not
obey any sovereign. Based on this, a sovereign can neither bind itself nor obey another
sovereign, thus, where there is no law, there is no sovereign, where there is no sovereign there is
no law. Furthermore, Hegel proposed the doctrine of the will of the State. This he meant, the
individual was subordinate to the state because it enshrined the wills of all citizens and had
evolved into a higher will and on the external scene the state was sovereign and supreme.27
Shaw in his book entitled International Law asserts that by the 19th Century nationalism and
democracy spurred by the wars of the French Revolution and empire, spread thought the
continent, thus new sovereign states were created. 28 Rise of sovereign states reached its pinnacle
in the unification of Germany and Italy. In Germany under Bismarck, there emerged working on
romantic nationalism age, a united Germany empire led by expansionists and militarists Prussian
Kingdom. In Italy the revolutionary soldier Garibaldi, the agitator Mazzini managed to put
together a national unitary kingdom. Other states were created like Belgian state in 1831.29
Rise of sovereign State geared the rejection of natural law in 19 th century because positivism
regarded sovereign as absolute. Consequently, Sovereign States limit the application of higher
law. Importantly, at this stage positivism was a dominant legal theory which consequently led to
the proliferation of the powers of states and increasing sophistication of municipal legislations.

Rise of legal positivism

The word positivism etymologically derives from the Latin word, Positum which refers to the

26
Kelly, J., A Short History of Western Legal Theory, Oxford: Oxford University Press, 2015, p. 301.
27
Ibid., p.29.
28
Shaw, M., International Law, Cambridge: Cambridge University Press, 2013, p. 28.
29
Kelly, J., Op. Cit., p. 306.

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law that is already laid down or posited. 30 The idea associated with legal positivism constitutes
the resilient opposition to natural law thinking.31 Legal positivism especially analytical jurists
sought to discourage speculation about the nature and purpose of law and set out to limit the
province of jurisprudence to a technical analysis of the positive law laid down and enforced by
the State.32 Positivism is not an independent jurisprudential approach, be it logical positivism,
scientific, philosophical its main claim is that only genuine knowledge is scientific knowledge
which emerges from positive confirmation of theory by the application of rigid scientific
methods.33
In the 19th Century encountered so many problems consequently, positivism reached at the
highest stage of development. Legal positivism could satisfy demand of justice and economy. In
1832, John Austin published a book entitled The Province of Jurisprudence Determined which
came to dominate the teaching of jurisprudence in England and the rest of the Commonwealth
countries. Austin wrote the matter of jurisprudence is a positive law. He further said the law
simply and strictly so called are set by the political superior to political inferior. 34 This is a
revolutionary understanding of Law which washed away Natural law in the 19th Century.
By this time, law came to be understood as those laws set by man to man and these laws are set
by virtue of political superior compose the appropriate matter of jurisprudence. For this reason,
law was comprehended as a command backed with a threatened sanction. This understanding of
law of 19th Century automatically ruled out several items, which conventionally labeled law
because they do not fit the specification of law as Austin expounded. 35 For this reasons, it can be
inferred that laws of nature, laws of God, law of morality were only law metaphorically and
Austin was glad to see the end of muddle going back to Aristotle. Positivist theory dominated
this century, the proliferation of the powers of state and increase of municipal legislation gave
rise to the idea of law as command issuing from sovereign person.

30
Wacks, R., Philosophy of law: A Very Short Introduction, Oxford: Oxford University Press of Oxford, 2006, p.
18.
31
Ibid., p. 9.
32
Ibid., p. 22.
33
Ibid., p. 24.
34
Kelly, J., Op. Cit., p. 321.
35
ibid

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The influence of Utilitarianism

Jeremy Bentham his long advocacy of reforming the existed law in spirit of utility had a
revolutionary effect even in his lifetime and continued to influence law long after his death. 36
Jeremy Bentham advocated for virtue in term of utility. Lord Brougham asserted that Bentham is
the father of the most important of all branches of reform, no one like him as ever before dare to
expose the deficits of English system of jurisprudence. Bentham and his followers never insisted
neither on doctrine of precedent no entrenched interests and privilege ought to stand in the way
of reform against utility principle.37
Essentially this rested on the philosophic premise of the greatest happiness for the greatest
number. Utilitarianism can be traced way back from the Greek Epicureans who believed that
pleasure was the only intrinsic good.38 For Bentham, the principle of subject human being to the
two sovereign masters.39 These are pain and pleasure. His conception of law as command of a
sovereign . Bentham rejected natural law as nothing but a phrase, its claim of authority based on
transcendental nature were nonsense.40 In the 19th Century John Stuart Mill on his Magnus Opus
entitled On Liberty said that criminal law had no right to punish acts merely because they were
acts which society disapproved of or wished to repress. The only act which State could legislate
only those which cause harm to others.41

CONCLUSION

As elucidated above, rejection of natural law was geared by many factors like socio-economic
36
Kelly, J., Op. Cit., p. 313.
37
ibid
38
Sinnott-Armstrong, Walter, "Consequentialism", The Stanford Encyclopedia of Philosophy (Winter 2015 Edition),
Edward N. Zalta (ed.), URL = https://plato.stanford.edu/archives/win2015/entries/consequentialism/
39
ibid
40
Pattaro. E & Roversi C., (Eds) A Treaties of Legal Theory and General Jurisprudence, Volume 12: Legal
Philosophy in Twentieth Century: The Civil Law World, 2015, p. 9.
41
ibid

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and political issues of the 19th century. Abandonment of natural in 19th was inevitable phenomena
given material condition and productive forces which influenced its rejection as Marxists would
coin it.
The 19th Century marked with progress in science and technology. New philosophy as a result of
enlightenment project in 18th Century started to gain momentum. Materialism philosophy which
were taken to its logical conclusion by the Karl Marx was influential. In this epoch, a German
Philosopher, Hegel inspired a lot of young thinkers in this generation who started to see reality in
terms of dialect movement. Many new fields started to emerge, for instance, Charles Darwin by
this time had published his Magnus Opus entitled origin of species which geared anthropological
studies. Also, Auguste Comte a French Philosopher emphasized positivism as new philosophy of
solving social problems. Those who sought an understanding of the relationship between self and
reality, the individual and society, discovered laws of social order which had the same
inevitability as the laws of nature, but they did not seek these laws in Natural law. The capitalists
knew that natural law could not be their legal theory simply because it was neither useful not
reliable. For this reason, capitalists needed certainty in the trade affairs. Thus, the emergence of
contractual obligation, the rules of commerce ought to have been clear, exact and known by
everyone. Unfortunately, natural law of the time could not guarantee that thus nature of the
economy played a great role in rejection of Natural law.

Karl Marx argued that substructure which are material conditions comprises of forces and
relation of production determine the superstructure which include law, nature of justice, state just
to name a few. In the same way, it can be argued that the economy of the 19 th Century which was
capitalistic in nature influenced the conception of law which led to the legal positivism, hence
rejection of natural law.In 19th Century, the industrial revolution merchandised Europe, created
the economy of capital and labour. These factors created enormous increase in a number of
institutions which law grew rapidly to accommodate them. Surprisingly, in 20th Century natural
law rose in trump from its hibernation in 19 th century. Catastrophic experience of the World War
Two which took lives of millions of innocent civilians revived natural law.

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BIBLIOGRAPHY

Books
Ghormade, V., Lectures on Jurisprudence &Legal Theory, Pune: Hind Law Publications, 2014.

Mahajan, V., Jurisprudence & Legal Theory, Lalbagh: Eastern Book Company, 2001.

Stromholm, S., A short History of Legal Thinking in the West, Lund: Fred B Rothman & Co,

1986.

Ttaro. E & Roversi C., (Eds) A Treaties of Legal Theory and General Jurisprudence, Volume 12:

Legal Philosophy in Twentieth Century: The Civil Law World, 2015.

Journals
Kelsen, H., “Will the Judgment in the Nuremberg Trial Constitute a Precedent” [In] International
Law Quarterly, Vol.1.2., 1947.
Mirabella, D., “Death and Resurrection of Natural Law,” The Western Australian Jurists, Vol.
1.1, 2002.
Zimmerman, A., “Evolutionary Legal Theories-The Impact of Darwinism on Western
Conception of Law,” Journal of Creation, Vol. 24. 2., 2010.

E-Sources
Hernecker, M., Elementary Concepts of Historical Materialism: Base and Superstructure,
Available at: https://www.marxists.org/history/erol/periodicals/theoretical-review/tr-12-1.pdf
Sinnott-Armstrong, Walter, "Consequentialism", The Stanford Encyclopedia of
Philosophy  (Winter 2015 Edition), Edward N. Zalta (ed.),
URL = https://plato.stanford.edu/archives/win2015/entries/consequentialism/

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