MODULE 2[C]: NATURAL LAW

THEORY OF JURISPRUDENCE
1. MEANING AND DEFINITION OF AND NATURAL
LAW:

The term “Natural Law” means those rules and principles which are considered to have
emanated from some supreme source. It means it has originated from other than any political
or worldly authority.

Varies theories have been propounded since very early time about the source. Some say that
these rules have come from God; some find their source in nature. Therefore these rules have
been given different names by different jurists. Such as ‘Divine Law’, ‘Moral Law’, ‘Law of
Nature’, Law of God’, ‘Universal Law’, ‘Unwritten Law’ and so on.

Dr. W. Friedmann writes that the history of natural law is a tale of the search of mankind for
absolute justice and its failure.

2. DEVELOPMENT AND DECLINE OF NATURAL LAW:

Natural Law theories may be broadly divided into four classes namely-

a) Ancient theories
b) Medieval theories
c) Renaissance theories
d) Modern theories

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 3. ANCIENT THEORIES

3.1. Greek Theories:

At first Greek thinkers laid the basis for natural law. The Greek thinkers developed the idea
of natural law and developed its essential features.

Heraclitus (530- 470 B.C):He laid the basis of natural law. He found it in the rhythm of
events. This he termed ‘destiny’, ‘order’, and ‘reason’ of the world. Nature is not just
substance, but a relation, an order of things.

Socrates (470-399 B.C):Socrates reflected upon that element which was the decisive
factor in the culture of his time. He defined virtue, the fundamental ethical conception, as
insight , in turn as a knowledge of good and the human insight has the capacity to distinguish
between good and bad. It also deals with moral values.

Plato (427-347 B.C): Plato laid the functions for much of subsequent speculation of
natural law themes. He says God gave to all men in equal measure a sense of justice and of
ethical reference so that in the struggle of life they may be able to form permanent unions for
mutual preservation.

Aristotle (384-322 B.C): In his logic, Aristotle says that, man is a part of nature in two
ways;firstly, he is the part of the creatures of the God, and secondly, he possesses insight and
reason by which he can shape his will. By his reason man can discover the eternal principle
of justice. The man’s reason being part of nature, the law discovered by reason is called
‘natural justice’.

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3.2. Roman Theories:

Natural Law exercised a very constructive influence on the Roman law through division of
Roman law into three distinct divisions namely ‘Jus civile’, ‘Jusgentium’ and ‘Jus naturale’.

Stoics :In Rome, Stoics built up on the theory of Aristotle but transformed into an ethical
theory. According to him, the entire universe is governed by ‘reason’. Man’s reason is a part
of the ‘Universal reason’. It is the moral duty of man to subject himself to the ‘law of nature’.

Cicero :He said law is the highest reason, implanted in nature which commands what ought to be
done and forbids the opposite. This reason when firmly fixed and fully developed in the human mind
is law.

3.3. Indian Theories:

Hindu legal system developed a very logical and comprehensive body of law at very early
times. According to the Hindu view, Law owes its existence to God. Law is given in ‘Shruti’
and ‘Smritis’. The king is simply to execute that law and he himself is bound by it and if he
goes against this law he should be disobeyed.

4. MEDIEVAL THEORIES

Catholic philosophers of the Middle Ages gave a new theory of ‘Natural Law’. Their views are more
logical and systematic.

4.1. Augustine (354-430 A.D):

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He believes that what are states without justice but robber hands enlarged (De civitas Dei) (The city of
god). It also believes that natural law as a part of the natural foundation of Christianity due to its
origins in the Old Testament early church father.

4.2. Thomas Aquinas (1226-1274):

It believes that ‘unjust’ law deserves no obedience means that man find out natural law by applying
‘reason’ and studying scriptures of revelation of god. He divided law into four categories namely-

a)Law of God

b)Natural Law

c)Divine Law

d)Human Law

His theory has to be set in the context of his time. There was a need for stability in a world
emerging from the ‘Dark Ages’.

5. RENAISSANCE THEORIES

The period of renaissance in the history of development of Natural Law may also be called
the modern classical era which is marked by rationalism and emergence of new ideas in
different fields of knowledge.

5.1. Hugo Grotius (1583 – 1645)

Grotius built his legal theory on ‘social contract’. His view, in brief, is that political society
rests on a ‘social contract’. It is the duty of the sovereign to safeguard the citizens. The
sovereign is bound by ‘Natural Law’.

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5.2. Thomas Hobbes (1558 – 1679)

According to Hobbes, prior to ‘social contract’, man lived in the bad condition of constant
fear. The life in the state of nature was “solitary, poor, nasty, brutish and short”. Therefore, in
order to secure self-protection and avoid misery and pain, men voluntarily entered into
contract and surrendered their freedom to some mightiest authority that could protect their
lives and property.

5.3. John Locke (1632 – 1704)

According to Locke, the state of nature was a golden age, only the property was insecure. It
was for the purpose of protection of property that men entered into the ‘social contract’. Man,
under this contract, did not surrender all his rights but only a part of them, namely, to
maintain order and to enforce the law of nature. His Natural Rights as the rights to life,
liberty and property he retained with himself. The purpose of government and law is to
uphold and protect the Natural Rights.

5.4. Jean Rousseau (1712 – 1778)

People united to preserve their rights of freedom and equality and for this purpose they
surrendered their rights not to a single individual, i.e. sovereign, but to the community as a
whole which Rousseau named as ‘general will’. Therefore, it is the duty of every individual
to obey the ‘general will’.

6. MODERN THEORIES
19TH CENTURY HOSTILITY TOWARDS NATURAL
LAW

The Natural Law theory received a setback in the wake of 19th century pragmatism. The
profounder of analytical positivism, notably, Bentham and Austin rejected Natural Law the
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ground that it was ambiguous and misleading. The doctrines propagated by Austin and
Bentham completely divorced morality from law. In the 19th century, the popularity of
Natural Law theories suffered a decline.

6.1. 20th Century Revival of Natural Law

Towards the end of the 19th century, a revival of the ‘Natural Law’ theories took place. It
was due to many reasons: 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.

6.2. Rudolf Stammler: According to him, the two fundamental principles necessary for a
just law were: (1) principles of respects, and (2) the principle of community participation. He
said that law of nature means ‘just law’ which harmonizes the purposes in the society. The
purpose of law is not to protect the will of one but to unify the purposes of all.

Kohler: He says that there is no eternal law and the law shapes itself as the society advances
morality and culturally in course of evolution. He tried to free the 19th century Natural Law
from the rigid and a priori approach and attempted to make it relativistic, adapting itself to
the changing norms of the society.

Hart:Hart has attempted to restate a national law position from a semi-sociological point of
view. Hart points out that there are certain substantive rules which are essential if human
beings are to live continuously together in close proximity. Hart places primary emphasis
here on an assumption of survival as a principal human goal.
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Conclusion: Though, there is decline in the concept of natural law theory in 20th century
but natural law is universal and common to all humanity. It goes beyond the difference in
culture, religion and various formulation of moral law. The principles of natural law are
followed in most democratic country.

The Articles like Article 14, 19 and 21 has been widely interpreted by the India judiciary due
to largely impact of natural law theory. Article 19 and 21 has been widely interpreted in the
Indian scenario especially by the Indian judiciary. Moreover the Fundamental Rights
conferred under Indian Constitution have large base in natural law theory.

In Maneka Gandhi v. Union of India and in Indian Express Newspaper v. Union of India
Supreme Court applied the principles of natural law and gave decision that Government
cannot violate the natural right of a person.

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