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Introduction to Traditional and Modern Natural Law Theories

Article  in  SSRN Electronic Journal · January 2016

DOI: 10.2139/ssrn.2775536

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 Introduction to Traditional and Modern Natural Law
Theories
Shivaraj S. Huchhanavar

I
INTRODUCTION
The ‘Law’ like language and culture is a changing variable and it is shaped by
social, associational, economic and political contexts. Due to its vividness and
variable content, ‘Law’ has remained as one of the difficult concepts to define, yet
there is no end to an unrelenting endeavour to provide the most fitting and
acceptable definition of the law. In search of a comprehensive answer to the
questions relating to meaning, source, subject, aspect and force of law, many
jurists, since time immemorial, invested their energies and expertise in
foregrounding various dimensions of law; it has led to many theories and schools
of thoughts. Such theories may be classified into (i) Natural, (ii) Analytical, (iii)
Historical, (iv) Philosophical (v) Sociological, and (vi) American realism. In this
Module, our focus will be on Natural Law Theories.

This paper is set out to serve three purposes–(i) to familiarize the reader with
various interpretation of the natural law; (ii) to study (briefly) various theories on
natural law starting from ancient Greek, so that the reader can appreciate the shift
of natural law from ‘dictate of God’ to dictate of ‘right reason’; and (iii) to appraise
the revival of natural law in the 19th and 20th century along with infusion of new
dimensions by Brian Bix in the study of both natural law and legal positivism. The
first part of the module will deal with the meaning of the natural law, the second
deals with various theories and the last segments start with a revival of natural
law and conclude with Brian Bix’s views on natural law.

II
MEANING OF NATURAL LAW
‘Natural Law’ is a time-honored approach to identify the ‘method’ through which
legal principles can be deduced and it is also used to determine the ‘content’ of law
in order to meet the subjective conditions of human existence and to solve the
contemporary problems in the society. Natural Law has various other names like
‘Divine Law’, ‘Moral Law’, ‘Universal Law’, ‘Law of Reason’, ‘Common Law’,
‘Higher Law’ or the ‘Law of Nature’ etc. However, it is important to note that as
such there is no single theory as ‘Natural Law Theory’ and there are three schools
of natural law theory viz., Divine natural law, Secular natural law, and Historical
natural law.

The divine natural law represents the system of principles believed to have been
revealed or inspired by God or some other supreme and supernatural being. The
secular natural law represents the system of principles derived from the physical,
biological, and behavioural laws of nature as perceived by the human intellect and
elaborated through reason. The historical natural law represents the system of
principles those evolved over time through the slow accretion of custom, tradition,
and experience.

Natural Law is defined as an unwritten law as against the written law. In other
words, natural law is the name of a body of principles revealed by nature or reason
or God. It emanates from the source superior to any human authority (the
sovereign). Blackstone described the natural law as “This law of nature, being
coeval with mankind and dictated by God himself, is, of course, superior in
obligation to any other. It is binding over the entire globe in all countries, and at
all times: no human laws are of any validity, if contrary to this; and such of them
as are valid, derive all their force, and all their authority, mediately or
immediately, from this original.” (Sir William Blackstone, Commentaries on the
Law of England).

Salmond describes the natural law as, “the idea that in reality law consists of rules
and in accordance with reason and nature has formed the basis of a variety of
natural law theories ranging from classical times to the present day. The central
notion is that there exist objective moral principles which depend on the essential
nature of the universe and which can be discovered by natural reason, and that
ordinary human law is only truly law in so far as it conforms to these principles.
These principles of justice and morality constitute the natural law, which is a valid
necessity, because the rules for human conduct are logically connected with truths
concerning human nature... a human law at variance with natural law is not really
law at all, but merely an abuse or violation of law” (P.J. Fitzgerald. Salmond on
Jurisprudence 15)

As there are numerous definitions of natural law, it is difficult to look into each
one them, to understand the concept more clearly let us identify salient features
of natural law. Which are enumerated as under-,

Natural law is–

(i) the divine Law (jus divinum, Stoics)

(ii) the Law of Reason (Cicero)

(iii) the unwritten law (Christian Tomasius)

(iv) the universal or common law (jus commune, jus genitum)

(v) the ‘Eternal’ Law breathing from the beginning of the world,
uncreated and immutable

(vi) the blend of morals and ideals i.e. the Natural law is a body of
unchanging moral principles regarded as a basis for all human
conduct; and

(vii) natural law believes priori method, priori means accepting

certain legal principles without an enquiry and observation.

The natural law, ever since the sense justice struck the human mind, has served
as a source of many freedom movements of justice, equality and liberty. It is
rightly claimed that natural law inspired English and French revolutions and also
the American freedom fight, including freedom movements in 19th and 20th
century against the colonization. It is the foundation of universal order governing
all men and also of the inalienable rights of the individual. The natural law is the
antidote to legal rigidity; it provides much-needed flexibility to law and acts as a
catalyst to fight against tyrannical and unjust positive (man-made) laws. Thus, by
overpowering the critique, the natural law like an elliptical banyan tree covered
with creepers stood against the tests of time. With creepers losing ground, it once
again revived with its variable content. Natural law is like a song sung by many
with varied lyrics and rhythms, this variance can be understood by listening to
legendary singers (jurist) of all Ages. Let us look at the exalted history of natural
law, starting with ancient theories of Greek.

II NATURAL LAW: THEORIES

Ancient theories of the Greek Period

It is believed that the Greeks were the first ancients to expound the natural law
principles; it is very interesting to see that in the Greek period not only the
philosophers but even poets scripted the content of natural law. I shall illustrate
this poetic contribution by the examples of Hesiod and Homer.

Hesiod: Hesiod, as the Greek legend says, is the first poet to have coined the word
‘law’. His most famous poem, Works and Days, which he wrote to protest against
the injustice of which he had been the victim; he was of the opinion that “fishes
and beasts and winged birds devour one another, since justice is not in them, yet
to men he has given justice, and best it is by far. For if one has a mind to know and
to speak what is just, to him far-seeing Zeus (God) gives a good life; but whosoever
willfully bears false witness and forswears himself, and therein offending justice
suffers hurt incurable, his offspring in time to come are left the more in darkness;
but the man whose oath is true, his offspring are the better in time to come."
(Hesiod, Works and Days, 274-285). The advice of Hesiod is very clear; men shall
act in accordance with his human nature as he is not deprived of the sense of
justice.

Homer: Homer is considered to be the source of all poetry, but he does not use
the word law, yet he clearly sets forth, in the first book of the epic poem, the
problem of justice and injustice, of right and wrong. For him, justice is of divine
origin; he declared that "the judges who under Zeus preserve the ordinances."
(Homer, The Iliad -I, 237-239)

Homer gave an essential place to law and said the law was to be found in the
Themistes given by Zeus to the Kings (the Themistes were the divine precepts on
which human justice had to be based). Along with the divine dictums, Homer
upheld the importance of customs and traditions. Later, Solon, Graecian,
Theognis, Heraclitus, Aeschylus, Sophocles and others relied on nature as a
source of law, and they proclaimed natural law is wise, permanent and all-
pervading.

Sophists: A class of teachers of fourth and fifth century BC, teaching arête
(excellence or virtue) to young Athenians, encouraging them to be efficient and
skilful citizens of Athens. Protagoras is generally regarded as the first of these
professional sophists. Others include Gorgias, Prodicus, Hippias, Thrasymachus,
Lycophron, Callicles, Antiphon, and Cratylus. Generally, they were not directly
dealing with law, being peripheral to politics and public life ‘law’ often became a
subject matter of Sophists discourse. The Sophists developed a skepticism in
which they recognised the relativity of human ideas and rejected absolute
standards. They declared the basis of law was the self-interest of the subject, and
are essentially the product of expediency.

Socrates: A rational thinker and an enlightened master believed in human

‘insight’, unlike sophists, he never based his argument on the basis of human
expediency, and was not in favour of the opinion that unjust laws shall not be
followed, he was of the view that ‘insight’ reveals to everyone what is goodness
and badness, thus one shall act in accordance with his ‘insight’. He defined virtue
as the fundamental ethical conception and preached ‘virtue is knowledge and
whatever is not known is sin’. Thus, for him, virtue is a touchstone to identify
absolute and eternal moral rules.

Plato (427-347 BC): Plato, a pupil of Socrates, opined that God gave to all men in
equal measure a sense of justice and ethical reverence so that they can harmonize
their interest. He said, ‘to mind one’s own business and not to be meddlesome is
justice’. He enunciated the doctrine that justice is a harmony of man’s inner life
and is the quality of justice and it is achieved by reason and wisdom over desires.
Thus, he says the administration of justice is to be given to the philosopher kings
whose education and wisdom are such that there is no necessity to link them up
with a higher law. He extended his concept of ‘ideal state’ by saying the Republic
wherein with a perfect division of labour ‘each man ought to do his work in the
station of life to which he is called by his capacities.

Aristotle (384-322 BC): Aristotle declared man is a political animal and as wider
needs of man can be realised in communities and in the state, the state is a
creature of nature. Thus, it is the primary function of the state is to secure the good
life to its subjects; it can be accomplished through the virtuous living of the
subjects. He says, “He who bids the law or rule, may be deemed to bid God and
reason. Reason alone rule, and who bids the man rule adds an element of the
beast”. Aristotle defined law as ‘reason unaffected by desires’ and man is endowed
with active reason which distinguishes him from all other parts of nature. He is
capable of farming his will in accordance with the insight of his reason. Reason
and free will are man’s inherent qualities and a will distinguishes virtue and vice.
When a man lives according to reason, he lives “naturally”. Thus, the law of nature
becomes identified with a moral duty.

Aristotle distinguished ‘natural justice’ from ‘legal justice’. He defined natural

justice as that which everywhere has the same force and does not exist by the
people thinking this and that, he opined, the positive law should try to incorporate
in itself the rules of ‘Natural Law’.

Natural Law in ancient Rome

Romans were pragmatic, even to the field of law they adopted the systematic and
analytic approach. Natural law in Rome was not confined to theoretical
discussions, in the early Republic, Plebeians drew a code of Law known as ‘XII
tables’. These ‘Tables’ are based on the customary law of Rome.

Romans have three division of law viz., jus civile or civil law of the Rome
applicable only to Romans. Jus genitum, the law applicable to foreigners, later it
is shaped into law of nations i.e. International Law, and, jus naturale was the law
of nature fixed, immutable, higher to all human laws derived from the dictate of
right reason. Natural law principles are applied by Roman magistrates commonly
to both Romans and foreigners. It was used to make jus civile more flexible. In
case of conflict between ‘natural law’ and ‘positive law’ general view was that,
positive law to be discarded.

Cicero (106-43 BC): Cicero says that while divine reason is inherent in the
universe, it is more or less identified with the physical ordering of the universe.
The man with his faculty of reasoning stood superior; in the eyes of nature, all
men are equal. Thus he says, “True law is right reason in agreement with nature;
it is of universal application, unchanging and everlasting; it summons to duty by
its commands, and averts from wrongdoing by its prohibitions. And it does not
lay its commands or prohibitions upon good men in vain, though neither have any
effect on the wicked. It is sin to try to alter this law, nor is it allowable to attempt
to repeal any part of it, and it is impossible to abolish it entirely. We cannot be
freed from its obligations by senate or people, and we need not look outside
ourselves for an expounder or interpreter of it. And there will not be different laws
at Rome and at Athens, or different laws now and in the future, but one eternal
and unchangeable law will be valid for all nations and all times, and there will be
one master and ruler, that is, God, over us all, for he is the author of this law, its
promulgator, and its enforcing judge. Whoever is disobedient is fleeing from
himself and denying his human nature, and by reason of this very fact, he will
suffer the worst penalties, even if he escapes what is commonly considered
punishment”, (Brian Brix, Traditional Natural Law Theory, 112).

Natural Law: Medieval Age

St. Thomas Aquinas (1225-1274): The most influential writer within the
traditional approach to natural law was undoubtedly Thomas Aquinas; his most
valuable work is Summa Theologica. He defined law as “an ordinance of reason
for the common good made by him who has the care of the community and
promulgated”. He divided law into four categories, (i) Eternal Law or Lex aeterna:
which is one and unchangeable which he called as divine wisdom. (ii) Natural Law
(Lex Naturalis): is that part of the eternal law which can be revealed by reason.
Aquinas held that men are a rational animal. By reflecting on his own impulses
and nature, man can decide what is good. (iii) Divine Law (Law of Scriptures)- it
is eternal law revealed through scriptures, and the church is the authoritative
interpreter of it. (iv) Human Laws (Lex Humana): Aquinas considered the state
as an institution meant to supply the necessary needs of men and to procure their
safety and wellbeing. Such law made by the state must be in conformity with
natural law, “every human law has just so much of the nature of law, as it is derived
from the law of nature. But if in any point it deflects from the law of nature, it is
no longer a law but a perversion of law”. Thus, he gave the phrase “Lex iniusta non
est lex” an unjust law is not a law, and such unjust laws need not be followed.

Hugo Grotius (1583-1645): Grotius provided a new dimension to natural law, he

who transcended natural law beyond God. He declared natural law is rooted in
the nature of men and would exist even if there were no God. Grotius asserted the
independence of natural law from God and a quality of man. He defined natural
law not just based on reason but on right reason. Grotius tried to secularize law
and proclaimed sovereign is bound by natural law.

Grotius sowed a seed of ‘social contract’. He said State originates in a contract and
by virtue of it each individual surrenders his sovereignty to the ruler. He opined
that the basis of natural law is consent; likewise states should unite to form a
society of states, as there is no sovereign to control the relations of nations, must
be based on equality, fairness and justice for all the nations of the world. Thus, for
the betterment of whole world “pacta sunt servanda” (treatise must be respected
and promises must be kept in good faith) must be the base of the law of
nations/international law.

Social Contract theory and Natural Law

The concept of ‘social contract’ was originated by Plato, but it was further
expounded by political thinkers of the 19th century, prominent among them are
Thomas Hobbes, John Locke and Jean Jacques Rousseau. ‘Social contract’ is the
hypothetical construction of reason, it assumes that man in primitive society had
neither the government nor any law, they lived in the natural state. Hobbes writes
that the life of primitive men was full of chaos, unhappy and unsettled; to the
contrary, Locke was of the opinion that there was no threat to the life but there
was no security to property. Interestingly, Rousseau says, ‘freedom, happiness,
equality and liberty’ exist in primitive societies.

In spite of the differences relating to the background of the theory, there are many
commonalities amongst all three contractualists. They argued men entered into
an agreement known as ‘pactum unionis’ for the protection of their lives and
property, this contract gave birth to society. Thereafter, men entered in a second
agreement known as ‘pactum subjectionis’ by which the people undertook to obey
an authority and surrendered the whole or part of their freedom and rights and
the authority of the government.

The social contract theory was presented to regulate the authority of the sovereign,
who was claiming unlimited, unrestricted and uncontrolled power, which in turn
led to a gross violation of individual’s liberty, so the primary aim of these thinkers
to provide a philosophical base to check the unlimited power of the King. Thus,
Hobbes argues that a superior authority must command obedience, and his
commands in no case disobeyed by the people. But he suggests it is advisable for
the King to be under ‘natural law’. Whereas, Locke claimed that, individuals
through social contract did not yield all the rights, but only the power to preserve
order and enforce the law of nature. The individual retained the ‘natural rights’ to
life, liberty and estate, for they were the natural and inalienable rights of man.
Thus the primary purpose of the government is to uphold and protect the natural
rights, but if it ceases to do that, the government may be overthrown. Locke
attached great importance to the natural liberties of an individual thus he was
rightly called as the campaigner of human rights.

Rousseau, with more perfection, argued that social contract means, “each giving
himself to all gives himself to nobody; there is not one associate over whom we do
not acquire the same rights which we concede to him over ourselves, we gain the
equivalent of all that we lose, and none, power to preserve what we have”.
Accordingly, he argued it was to “general will” all men surrendered their liberties
and in turn, they were granted with civil liberties, thus, it was general will instead
of right reason which became the standard of right, justice and equality.

He writes the Government and law are both dependent upon general will, he
equated ‘general will’ with sovereignty’.

The revival of Natural Law

Industrialization, fueled by advancement in science, steered empires of
immeasurable might. As the spiritual needs of the individuals are overpowered by
material needs, the church conceded powers to the monarch, this paved way to
concentration powers in the hands of the sovereign. Therefore, in 16 th, 17th and
18th century, natural law theory remained less forceful. However, for various
reasons, towards the end of 19th century, Natural Law Theories regained
importance. The revived natural substantially differed in certain aspects, now the
natural law is relative and non-abstract, and is value loaded, value-oriented and
value conscious and not-unchangeable; it is changing and varying, not permanent
and everlasting. Therefore, it is rightly called as ‘natural law with a variable
content’.

Rudolf Stammler (1856-1938): Stammler argued that there cannot be universal

rules (in the strict sense) on the same social problems because content and social
backgrounds of such problems are empirically conditioned and changing with
changing times and situations. So, there is no single rule of law whose positive
content can be fixed a priori. According to him, ‘Law is necessarily a priori because
it is inevitably implied in the idea of cooperation. He defined law as “a species of
will, other-regarding, self-authoritative, and inviolable.” Every rule is a means to
an end, so one must seek a universal method of making just laws. A just law is the
highest expression of man’s social activity.

The law of nature means to him a ‘just law’ and a ‘just law’ is that which
harmonises the purposes within the framework of social life, and such harmony
varies according to time and place, so laws must be variable on their content to
meet these varied needs of society.

Joseph Kohler (1849-1919): Kohler asserts, ‘mankind constantly progresses in

culture in the sense that permanent cultural values are produced, and since
culture is a growing variable, the law is a growing and dynamic variable’. He says
the law is not an automatic product, for new values have constantly to be created
according to the march of civilization.

The society, in the course of evolution, grows socially, economically, politically,

morally and culturally, if the law is blended of all these, it serves better. There is
no eternal law. The law that is suitable for one period is not so for another period,
we can only evaluate every culture with its corresponding system of law. Kohler
built his theory on the idea that law is a process of evolution, and that law must
change with time and vary with the cultures of countries.

John Rawls: John Rawls propounded ‘justice’ oriented theory and his core aspect
was ‘fairness’. He says fairness is reasoned prudence and principles of justice are
dictated by prudence. He centered his theory of justice on hypothetical ‘original
position’, where people are assumed to know certain things, like general
psychology and the social science. John Rawls argues that people in the original
position choose basic principles of justice, excluding their self-interest and
otherworldly needs. His conclusion was that prudent people would choose liberty
and the common good in place of their own self-interest, to which he called as a
basic principle of justice and he generalised human wants into “primary social
goods” which include basic liberties, opportunity, power and a minimum of
wealth.

John Rawls laid down two basic principles of justice which the State should satisfy
to ensure justice to its people, which are,

(i) First: each person is to have an equal right to the most extensive
basic liberty compatible with a similar liberty for others;
(ii) Second: Social and economic inequalities are to be arranged so
that (a) they are to be of the greatest benefit to the least-advantaged
members of society, consistent with the just savings principle (the
difference principle).
(b) offices and positions must be open to everyone under conditions of
fair equality of opportunity.

John Finnis: Finnis advocated a very sophisticated theory of natural law. He says
that a theory of natural law claims to be able to identify the conditions and
principles of right-mindedness, of good and proper order among men in
individuals conduct. He viewed justice and moral authority of law is the import of
natural law. According to him, natural law consists of two sets of principles.

(1) Basic values those are good for human beings: knowledge,
aesthetic experience, sociability, practical reasonableness and
religion, etc.
(2) Basic requirements of practical reasonableness are the authority,
justice, moral authority, and Rule of Law

In his ‘Natural Law and Natural Rights’, Finnis accepts the law emanates from the
eternal law and is self-evident based on experience and reflection.

Brian H. Bix: Natural Law is the mode of thinking systematically about the
connections between the cosmic order, morality, and law, which, in one form or
another, has been around us for thousands of years (Brain Bix, Natural Law: The
Modern Tradition). Bix, like Finnis, is more dynamic in his approach and
disfavoured extreme construction of both legal positivism and traditional natural
law theories, he is of the opinion that the borderline of difference between natural
law and positivism is wrongly drawn and unwarranted line of differences were
raised by too much digging in ‘is’ and ‘ought’. He is of the view that the devoid
between natural law and legal positivism sometime is raised by misinterpretation
of traditional natural law doctrines. He explains it with example of Aquinas Phrase
“lex iniusta non est lex” which is generally construed to mean ‘unjust law is no
law’, Bix says, a more reasonable interpretation of statements like "an unjust law
is no law at all" is that unjust laws are not laws "in the fullest sense." As we might
 say of some professional, who had the necessary degrees and credentials but
seemed nonetheless to lack the necessary ability or judgment: "she's no lawyer" or
"he's no doctor." This only indicates that we do not think that the title, in this case,
carries with it all the implications it usually does. Similarly, to say that an unjust
law is "not really law" may only be to point out that it does not carry the same
moral force or offer the same reasons for action as laws consistent with "higher
law." "...This law is unjust; it is not a law in the fullest sense, and therefore citizens
can in good conscience act as if it was never enacted; that is, they should feel free
to disobey it." This is a common understanding of the idea that an unjust law is
no law at all...” (Brian Bix, Traditional Natural Law Theory).

Modern legal positivism developed in reaction to certain (less sophisticated)

versions of natural law theory. The reality is that they are more complementary
than contradictory (1) natural law theory reduces to the claim that there is
objective moral truth and that this truth should be used to evaluate our political
and legal institutions as well as our individual choices, and (2) legal positivism
reduces to the claim that there is a possibility of and value to a descriptive or
conceptual theory of law separated from any evaluation of its (moral) merits, then
there would seem no reason why one could not support or advocate both (Brian
Bix, On the Dividing Line between Natural Law Theory and Legal Positivism).
Through his dynamic and rational arguments, Bix tried to reconcile both Natural
law and Legal positivism, (up till now) irreconcilable, this approach though
originated by Finnis and others, Bix, gave very loud voice, which hopefully would
bring a novel perspective to legal theory.

III CONCLUSION
This module is an introduction to western theories on natural law; efforts were
made to include all prominent theories on the subject but with a view to keep the
topic simple certain versions of natural law are avoided. It is advisable that the
reader shall, along with theories presented in this module must also study
Pufendorf, Immanuel Kant, Francois Geny, Lon Luvois Fuller, H.L.A. Hart and
others natural law theories. However, the reader must not forget that in the
ancient cultures, like India and China, one can find very systematic expositions on
natural law. For various reasons, no systematic efforts were made to revive these
theories. For deeper study, it is advisable to read juristic views on ancient Indian
natural law theories.

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