NATURAL LAW THEORY – PART 5

DECLINE OF NATURAL LAW THEORY

The Natural law theory received a setback in the 19th Century. The reasons for its decline are as
follows:

 Rising tide of nationalism in the 19th century attacked the very foundation of
individualistic conception of society.
 Growth of natural science: natural science emphasis on empirical methods (based on
observation and experiments) as against a prior method (accepts or rejects something
without any observation and experiments) which was the sole basis of natural law theory.
 Complex society was increasingly emerging with various problems as such it needs a
complex solution based on comparative and sociological approach and not an abstract
one.
 Rise of analytical and historical school of jurisprudence.
 Moreover, Bentham and Austin rejected natural law theory and regarded it as ambiguous
and misleading. Bentham called it a “simple non – sense” since absolute equality and
absolute liberty were repugnant to the existence of the State.
 Moreover, the teaching of historical and sociologists on environment and conditions such
as climate, soil, religion, custom, commerce etc. and not on sole authority of reason.

In the new climate of opinion, the prevailing natural law theories could not survive and their
place were taken by analytical and historical school of jurisprudence in the 19th Century.

REVIVAL OF NATURAL LAW THEORY

Towards the end of 19th century the ‘natural law’ theories revived due to many reasons, some of
which are:

 First, a reaction against 19th century legal theories which had exaggerated the
importance of ‘positive law’ was due and theories which over-emphasized positivism
failed to satisfy the aspirations of the people because of their refusal to accept morality
and ‘reason’ as element of law;
 Second, it was realized that abstract thinking or a priori assumptions were not completely
futile;
 Third, the impact of materialism on the society and the changed socio-political
conditions compelled the 20th century legal thinkers to look for some value-oriented
ideology which could prevent general moral degradation of the people.
 Fourth, the World War I further shattered the western society and there was a search for
a value-conscious legal system.
  It was realized that the ideologies like Fascism and Nazism were the outcome of over –
emphasis on historical school of jurisprudence which over – emphasized on the cultural
and social characters of legal system.

Hence, all these factors led to the revival of natural law theory. However, the revised natural law
theory was different from the original natural law theory. The new theories of natural law took
into account the various approaches to law such as analytical, historical and sociological
approaches. They also sought guidance from contemporary theories in other branches of
knowledge. The revised natural law theory is relative and not abstract and unchangeable. The
new approach of natural law is concerned with practical problems and not abstract ideas. It tries
to harmonise natural law with the variability of human ideals. It takes into account new theories
which put emphasis on society. Due to this, the revised natural law theory has been called as
“natural law with a variable content”. The prominent philosophers of revised natural law theory
are John Rawls, Finnis, Fuller.