STUDY AND REVIVAL OF NATURAL LAW IN 19TH

CENTURY

SUBMITTED BY:

GEETANJALI SHAHI

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 TABLE OF CONTENTS
1. Introduction…………………………………………………….4-5
 Objectives
 Research methodology
2. Kinds Of Natural Law Theory......................................................6-7
3. Conceptual Naturalism..................................................................8
4. Decline of Natural law theory………...........................................10
5. Thinkers…………………………………………………………...12
6. Conclusion…………………………………………………………19
7. Bibliography and Webliography…………………………………20

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 INTRODUCTION
The concept of natural law has taken several forms. The idea began with the ancient Greeks' conception of a
universe governed in every particular by an eternal, immutable law and in their distinction between what is just
by nature and just by convention. Stoicism provided the most complete classical formulation of natural law. The
Stoics argued that the universe is governed by reason, or rational principle; they further argued that all humans
have reason within them and can therefore know and obey its law. Because human beings have the faculty of
choice (a free will), they will not necessarily obey the law; if they act in accordance with reason, however, they
will be "following nature."

Christian philosophers readily adapted Stoic natural law theory, identifying natural law with the law of God. For
Thomas Aquinas, natural law is that part of the eternal law of God ("the reason of divine wisdom") which i s
knowable by human beings by means of their powers of reason. Human, or positive, law is the application of
natural law to particular social circumstances. Like the Stoics, Aquinas believed that a positive law that violates
natural law is not true law.

With the secularization of society resulting from the Renaissance and Reformation, natural law theory found a
new basis in human reason. The 17th-century Dutch jurist Hugo Grotius believed that humans by nature are not
only reasonable but social. Thus the rules that are "natural" to them -- those dictated by reason alone -- are those
which enable them to live in harmony with one another. From this argument, by the way, Grotius developed the
first comprehensive theory of international law.

Natural law theory eventually gave rise to a concept of "natural rights." John Locke argued that human beings in
the state of nature are free and equal, yet insecure in their freedom. When they enter society they surrender only
such rights as are necessary for their security and for the common good. Each individual retains fundamental
prerogatives drawn from natural law relating to the integrity of person and property (natural rights). This natural
rights theory provided a philosophical basis for both the American and French revolutions. Thomas Jefferson
used the natural law theory to justify his trinity of "inalienable rights" which were stated in the United States
Declaration of Independence. 1

During the 19th century natural law theory lost influence as utilitarianism and Bentham’s, positivism,
materialism, and the historical school of jurisprudence became dominant. In the 20th century, however, natural
law theory has received new attention, partly in reaction to the rise of totalitarianism and an increased interest in
human rights throughout the world. With this contemporary interest in mind, let's now turn to our attention to
the natural law theory as understood by the tradition of Classical Realism.

1
http://en.wikipedia.org/wiki/Natural_law
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In its simplest definition, natural law is that "unwritten law" that is more or less the same for everyone
everywhere. To be more exact, natural law is the concept of a body of moral principles that is common to all
humankind and, as generally posited, is recognizable by human reason alone. Natural law is therefore
distinguished from -- and provides a standard for -- positive law, the formal legal enactments of a particular
society.

Since law must always be some dictate of reason, natural law also will be some dictate of reason. In fact, it is
the law discovered by human reason. Our normal and natural grasp of the natural law is affected by reason, that
is, by the thinking mind, and in this service reason is sometimes called "conscience." We, in all our human acts,
inevitably see them in their relation to the natural law, and we mentally pronounce upon their agreement or
disagreement with the natural law. Such a pronouncement may be called a "judgment of conscience." The
"norm" of morality is the natural law as applied by conscience. Lastly, we can say that the natural law is the
disposition of things as known by our human reason and to which we must conform ourselves if we are to
realize our proper end or "good" as human beings. 2

To sum it up, then, we can say that the natural law:

 is not made by human beings;

 is based on the structure of reality itself;
 is the same for all human beings and at all times;
 is an unchanging rule or pattern which is there for human beings to discover;
 is a means by which human beings can rationally guide themselves to their good.

It is interesting to note that virtually everyone seems to have some knowledge of natural law even before such
knowledge is codified and formalized. Even young children make an appeal to "fair play," demand that things
be "fair and square," and older children and adults often apply the "golden rule." When doing so, they are
spontaneously invoking the natural law. This is why many proponents of the natural law theory say it is the law
which is "written upon the hearts of men."

Objectives
• To understand the concept of Natural Law.
• To know when and how it emerged.
• To study the various thinkers who helped in the revival during 19 th century .
• To draw a conclusion of Natural Law Theory.

2
http://www.legalservicesindia.com/article/article/natural-law-theory-1707-1.html
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 Research Methodology
The method of research adopted for the project is the secondary method; research is analytical
and descriptive in nature.
The texts that were used for the project include articles, research papers and news given in
various websites as well as online journals.

Kinds of Natural Law Theory

The first is a theory of morality. First, moral propositions have what is sometimes called objective standing in the
sense that such propositions are the bearers of objective truth-value; that is, moral propositions can be objectively
true or false. Though moral objectivism is sometimes equated with moral realism, the relationship between the
two theories is controversial. Geoffrey Sayre-McCord, for example, views moral objectivism as one species of
moral realism, but not the only form; on Sayre-McCord’s view, moral subjectivism and moral intersubjectivism
are also forms of moral realism. Strictly speaking, then, natural law moral theory is committed only to the
objectivity of moral norms.

The second thesis constituting the core of natural law moral theory is the claim that standards of morality are in
some sense derived from, or entailed by, the nature of the world and the nature of human beings. St. Thomas
Aquinas, for example, identifies the rational nature of human beings as that which defines moral law: “the rule
and measure of human acts is the reason, which is the first principle of human acts”. On this common view, since
human beings are by nature rational beings, it is morally appropriate that they should behave in a way that
conforms to their rational nature. Thus, Aquinas derives the moral law from the nature of human beings (thus,
“natural law”).

But there is another kind of natural law theory having to do with the relationship of morality to law. According
to natural law theory of law, there is no clean division between the notion of law and the notion of morality.
Though there are different versions of natural law theory, all subscribe to the thesis that there are at least some
laws that depend for their “authority” not on some pre-existing human convention, but on the logical relationship
in which they stand to moral standards. Otherwise put, some norms are authoritative in virtue of their moral
content, even when there is no convention that makes moral merit a criterion of legal validity. The idea that the
concepts of law and morality intersect in some way is called the Overlap Thesis.

As an empirical matter, many natural law moral theorists are also natural law legal theorists, but the two theories,
strictly speaking, are logically independent. One can deny natural law theory of law but hold a natural law theory
of morality. John Austin, the most influential of the early legal positivists, for example, denied the Overlap Thesis
but held something that resembles a natural law ethical theory.

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Indeed, Austin explicitly endorsed the view that it is not necessarily true that the legal validity of a norm depends
on whether its content conforms to morality. But while Austin thus denied the Overlap Thesis, he accepted an
objectivist moral theory; indeed, Austin inherited his utilitarianism almost wholesale from J.S. Mill and Jeremy
Bentham. Here it is worth noting that utilitarians sometimes seem to suggest that they derive their utilitarianism
from certain facts about human nature; as Bentham once wrote, “nature has placed mankind under the governance
of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to
determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes
and effects, are fastened to their throne” (Bentham 1948, 1). Thus, a commitment to natural law theory of morality
is consistent with the denial of natural law theory of law.

Conversely, one could, though this would be unusual, accept a natural law theory of law without holding a natural
law theory of morality. One could, for example, hold that the conceptual point of law is, in part, to reproduce the
demands of morality, but also hold a form of ethical subjectivism (or relativism). On this peculiar view, the
conceptual point of law would be to enforce those standards that are morally valid in virtue of cultural consensus.
For this reason, natural law theory of law is logically independent of natural law theory of morality. The remainder
of this essay will be exclusively concerned with natural law theories of law.

Conceptual Naturalism
a. The Project of Conceptual Jurisprudence
The principal objective of conceptual (or analytic) jurisprudence has traditionally been to provide an account of
what distinguishes law as a system of norms from other systems of norms, such as ethical norms. As John Austin
describes, conceptual jurisprudence seeks “the essence or nature which is common to all laws that are properly
so called”. Accordingly, the task of conceptual jurisprudence is to provide a set of necessary and sufficient
conditions for the existence of law that distinguishes law from non-law in every possible world.

While this task is usually interpreted as an attempt to analyze the concepts of law and legal system, there is some
confusion as to both the value and character of conceptual analysis in philosophy of law. As Brian Leiter points
out, philosophy of law is one of the few philosophical disciplines that take conceptual analysis as its principal
concern; most other areas in philosophy have taken a naturalistic turn, incorporating the tools and methods of the
sciences. To clarify the role of conceptual analysis in law, Brian Bix distinguishes a number of different purposes
that can be served by conceptual claims: (1) to track linguistic usage; (2) to stipulate meanings; (3) to explain
what is important or essential about a class of objects; and (4) to establish an evaluative test for the concept-word.
Bix takes conceptual analysis in law to be primarily concerned with (3) and (4).3

3
http://plato.stanford.edu/entries/lawphil-naturalism/
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In any event, conceptual analysis of law remains an important, if controversial, project in contemporary legal
theory. Conceptual theories of law have traditionally been characterized in terms of their posture towards the
Overlap Thesis. Thus, conceptual theories of law have traditionally been divided into two main categories: those
like natural law legal theory that affirm there is a conceptual relation between law and morality and those like
legal positivism that deny such a relation.

b. Classical Natural Law Theory

All forms of natural law theory subscribe to the Overlap Thesis, which asserts that there is some kind of non -
conventional relation between law and morality. According to this view, then, the notion of law cannot be fully
articulated without some reference to moral notions. Though the Overlap Thesis may seem unambiguous, there
are a number of different ways in which it can be interpreted.

The strongest construction of the Overlap Thesis forms the foundation for the classical naturalism of Aquinas and
Blackstone. Aquinas distinguishes four kinds of law: (1) eternal law; (2) natural law; (3) human law; and (4)
divine law. Eternal law is comprised of those laws that govern the nature of an eternal universe; as Susan Dimock
(1999, 22) puts it, one can “think of eternal law as comprising those entire scientific (physical, chemical,
biological, psychological, etc.) ‘Laws’ by which the universe is ordered.” Divine law is concerned with those
standards that must be satisfied by a human being to achieve eternal salvation. One cannot discover divine law
by natural reason alone; the precepts of divine law are disclosed only through divine revelation.

The natural law is comprised of those precepts of the eternal law that govern the behavior of beings possessing
reason and free will. The first precept of the natural law, according to Aquinas, is the somewhat vacuous
imperative to do well and avoid evil. Here it is worth noting that Aquinas holds a natural law theory of morality:
what is good and evil, according to Aquinas, is derived from the rational nature of human beings. Good and evil
are thus both objective and universal.

But Aquinas is also a natural law legal theorist. On his view, a human law (that is, that which is promulgated by
human beings) is valid only insofar as its content conforms to the content of the natural law; as Aquinas puts the
point: “every human law has just so much of the nature of law as 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”. To paraphrase Augustine’s
famous remark, an unjust law is really no law at all.

The idea that a norm that does not conform to the natural law cannot be legally valid is the defining thesis of
conceptual naturalism. Blackstone articulates the two claims that constitute the theoretical core of conceptual
naturalism: 1) there can be no legally valid standards that conflict with the natural law; and 2) all valid laws derive
what force and authority they have from the natural law.

It should be noted that classical naturalism is consistent with allowing a substantial role to human beings in the
manufacture of law. While the classical naturalist seems committed to the claim that the law necessarily
incorporates all moral principles, this claim does not imply that the law is exhausted by the set of moral principles.
There will still be coordination problems (e.g., which side of the road to drive on) that can be resolved in any
number of ways consistent with the set of moral principles. Thus, the classical naturalist does not deny that human

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beings have considerable discretion in creating natural law. Rather she claims only that such discretion is
necessarily limited by moral norms: legal norms that are promulgated by human beings are valid only if they are
consistent with morality.

Critics of conceptual naturalism have raised a number of objections to this view. First, it has often been pointed
out that, contra Augustine, unjust laws are all-too- frequently enforced against persons. As Austin petulantly put
the point: 4

Now, to say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to
talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God,
have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively
beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and
condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that human
lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the
inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the
validity (Austin 1995, 158).

Of course, as Brian Bix points out, the argument does little work for Austin because it is always possible for a
court to enforce a law against a person that does not satisfy Austin’s own theory of legal validity.

Another frequently expressed worry is that conceptual naturalism undermines the possibility of moral criticism
of the law; inasmuch as conformity with natural law is a necessary condition for legal validity, all valid law is,
by definition, morally just. Thus, on this line of reasoning, the legal validity of a norm necessarily entails its moral
justice. As Jules Coleman and Jeffrey Murphy (1990, 18) put the point:

The important things [conceptual naturalism] supposedly allows us to do (e.g., morally evaluate the law and
determine our moral obligations with respect to the law) are actually rendered more difficult by its collapse of the
distinction between morality and law. If we really want to think about the law from the moral point of view, it
may obscure the task if we see law and morality as essentially linked in some way. Moral criticism and reform of
law may be aided by an initial moral skepticism about the law.

There are a couple of problems with this line of objection. First, conceptual naturalism does not foreclose criticism
of those norms that are being enforced by a society as law. Insofar as it can plausibly be claimed that the content
of a norm being enforced by society as law does not conform to the natural law, this is a legitimate ground of
moral criticism: given that the norm being enforced by law is unjust, it follows, according to conceptual
naturalism, that it is not legally valid. Thus, the state commits wrong by enforcing that norm against private
citizens.

Second, and more importantly, this line of objection seeks to criticize a conceptual theory of law by pointing to
its practical implications ñ a strategy that seems to commit a category mistake. Conceptual jurisprudence assumes
the existence of a core of social practices (constituting law) that requires a conceptual explanation. The project
motivating conceptual jurisprudence, then, is to articulate the concept of law in a way that accounts for these pre-

4
https://mises.org/journals/jls/2_2/2_2_1.pdf
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existing social practices. A conceptual theory of law can legitimately be criticized for its failure to adequately
account for the pre-existing data, as it were; but it cannot legitimately be criticized for either its normative quality
or its practical implications.

A more interesting line of argument has recently been taken up by Brian Bix. Following John Finnis, Bix rejects
the interpretation of Aquinas and Blackstone as conceptual naturalists, arguing instead that the claim that an unjust
law is not a law should not be taken literally:

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” (Bix 1996, 226).

Thus, Bix construes Aquinas and Blackstone as having views more similar to the neo- naturalism of John Finnis
discussed below in Section III. Nevertheless, while a plausible case can be made in favor of Bix’s view, the long
history of construing Aquinas and Blackstone as conceptual naturalists, along with its pedagogical value in
developing other theories of law, ensures that this practice is likely, for better or worse, to continue indefinitely.

Decline of natural law theory

The natural law theory suffered a setback in the wake on 19 th century developments and pragmatic
approach to law by the positivists. The industrial revolution and scientific discoveries had created an
environment which was not conductive to natural law philosophy. the doctrine of laissez faire which favoured
minimum interference of the state in the economic and political activities of individuals was weakening the
power and authority of the sovereign which could be restored only by a stable deterministic legal theory instead
of fluid and reflex theories of natural law . The pounders of analytical positivism , notably Bentham and Austin
rejected natural law on the ground that it was ambiguous and misleading .Bentham called it “a simple nonsense”
since absolute equality and absolute liberty were repugnant to the existence of the state. The doctrines
propagated by Austin and Bentham completely divorced morality from law. The historical researches concluded
that social contract was a myth. All these developments shattered the very foundation of the natural law theory
in 19th century.

Positivist’s Hostility Towards Natural Law

The over supremacy of natural law had been dispelled by Montesquieu’s empirical theory that laws are
creation of climatic, social , topography ,environment ,customs ,commerce etc. He denounced the natural law
holding that it was vague, confusing and contrary to empirical and observable realities.
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 David Hume rejected the theory of natural law alleging that it was vague , obscure and contrary to
empirical approach to law. Thus he destroyed the theoretical basis of natural law by his analytical positivism.
The evil effects of individualism gave way to the new idolgy of collectivism .He argued that values and notions
of justice are inherent in nature. He therefore favoured inflexibility in application in rules of law which may be
changed when social conditions so demand.

The theory propounded by the great French philosopher August Compte further struck a severe blow to
the dwindling natural law theory. He denounced natural law theory as false, on-scientific and based on super
natural beliefs.

The emerging trend of recognising the importance of historical school which consider law as a product
of peoples conscience, brought further decline of natural law. The dominance of analytical positivism had
completely divested law from morality and justice thus destroying the very foundation of natural law theory.

John Finnis
The Substantive Neo-Naturalism of John Finnis

John Finnis takes himself to be explicating and developing the views of Aquinas and Blackstone. Like Bix, Finnis
believes that the naturalism of Aquinas and Blackstone should not be construed as a conceptual account of the
existence conditions for law. According to Finnis, the classical naturalists were not concerned with giving a
conceptual account of legal validity; rather they were concerned with explaining the moral force of law: "the
principles of natural law explain the obligatory force (in the fullest sense of 'obligation') of positive laws, even
when those laws cannot be deduced from those principles" (Finnis 1980, 23-24). On Finnis's view of the Overlap
Thesis, the essential function of law is to provide a justification for state coercion (a view he shares with Ronald
Dworkin). Accordingly, an unjust law can be legally valid, but it cannot provide an adequate justification for use
of the state coercive power and is hence not obligatory in the fullest sense; thus, an unjust law fails to realize the
moral ideals implicit in the concept of law. An unjust law, on this view, is legally binding, but is not fully law.

Like classical naturalism, Finnis's naturalism is both an ethical theory and a theory of law. Finnis distinguishes a
number of equally valuable basic goods: life, health, knowledge, play, friendship, religion, and aesthetic
experience. Each of these goods, according to Finnis, has intrinsic value in the sense that it should, given human
nature, be valued for its own sake and not merely for the sake of some other good it can assist in bringing about.
Moreover, each of these goods is universal in the sense that it governs all human cultures at all times. The point
of moral principles, on this view, is to give ethical structure to the pursuit of these basic goods; moral principles
enable us to select among competing goods and to define what a human being can permissibly do in pursuit of a
basic good.

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On Finnis's view, the conceptual point of law is to facilitate the common good by providing authoritative rules
that solve coordination problems that arise in connection with the common pursuit of these basic goods. Thus,
Finnis sums up his theory of law as follows:

[T]he term 'law' ... refer[s] primarily to rules made, in accordance with regulative legal rules, by a determinate
and effective authority (itself identified and, standardly, constituted as an institution by legal rules) for a 'complete'
community, and buttressed by sanctions in accordance with the rule-guided stipulations of adjudicative
institutions, this ensemble of rules and institutions being directed to reasonably resolving any of the community's
co-ordination problems (and to ratifying, tolerating, regulating, or overriding co-ordination solutions from any
other institutions or sources of norms) for the common good of that community (Finnis 1980, 276). 5

Again, it bears emphasizing that Finnis takes care to deny that there is any necessary moral test for legal validity:
"one would simply be misunderstanding my conception of the nature and purpose of explanatory definitions of
theoretical concepts if one supposed that my definition 'ruled out as non-laws' laws which failed to meet, or meet
fully, one or other of the elements of the definition" (Finnis 1980, 278).

Nevertheless, Finnis believes that to the extent that a norm fails to satisfy these conditions, it likewise fails to
fully manifest the nature of law and thereby fails to fully obligate the citizen-subject of the law. Unjust laws may
obligate in a technical legal sense, on Finnis's view, but they may fail to provide moral reasons for action of the
sort that it is the point of legal authority to provide. Thus, Finnis argues that "a ruler's use of authority is radically
defective if he exploits his opportunities by making stipulations intended by him not for the common good but
for his own or his friends' or party's or faction's advantage, or out of malice against some person or group" (Finnis
1980, 352). For the ultimate basis of a ruler's moral authority, on this view, "is the fact that he has the opportunity,
and thus the responsibility, of furthering the common good by stipulating solutions to a community's co-
ordination problems" (Finnis 1980, 351).

Finnis's theory is certainly more plausible as a theory of law than the traditional interpretation of classical
naturalism, but such plausibility comes, for better or worse, at the expense of naturalism's identity as a distinct
theory of law. Indeed, it appears that Finnis's natural law theory is compatible with naturalism's historical
adversary, legal positivism, inasmuch as Finnis's view is compatible with a source-based theory of legal validity;
laws that are technically valid in virtue of source but unjust do not, according to Finnis, fully obligate the citizen.
Indeed, Finnis (1996) believes that Aquinas's classical naturalism fully affirms the notion that human laws are
"posited."

5
http://law.campbell.edu/lawreview/articles/35-1-59.pdf
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 Lon L. Fuller
The Procedural Naturalism of Lon L. Fuller

Like Finnis, Lon Fuller (1964) rejects the conceptual naturalist idea that there are necessary substantivemoral
constraints on the content of law. But Fuller, unlike Finnis, believes that law is necessarily subject to
a procedural morality. On Fuller's view, human activity is necessarily goal-oriented or purposive in the sense that
people engage in a particular activity because it helps them to achieve some end. Insofar as human activity is
essentially purposive, according to Fuller, particular human activities can be understood only in terms that make
reference to their purposes and ends. Thus, since lawmaking is essentially purposive activity, it can be understood
only in terms that explicitly acknowledge its essential values and purposes:

The only formula that might be called a definition of law offered in these writings is by now thoroughly familiar:
law is the enterprise of subjecting human conduct to the governance of rules. Unlike most modern theories of law,
this view treats law as an activity and regards a legal system as the product of a sustained purposive effort (Fuller
1964, 106).

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 To the extent that a definition of law can be given, then, it must include the idea that law's essential function is to
"achiev[e] [social] order through subjecting people's conduct to the guidance of general rules by which they may
themselves orient their behavior" (Fuller 1965, 657).

Fuller's functionalist conception of law implies that nothing can count as law unless it is capable of performing
law's essential function of guiding behavior. And to be capable of performing this function, a system of rules must
satisfy the following principles:

 (P1) the rules must be expressed in general terms;

 (P2) the rules must be publicly promulgated;
 (P3) the rules must be prospective in effect;
 (P4) the rules must be expressed in understandable terms;
 (P5) the rules must be consistent with one another;
 (P6) the rules must not require conduct beyond the powers of the affected parties;
 (P7) the rules must not be changed so frequently that the subject cannot rely on them; and
 (P8) the rules must be administered in a manner consistent with their wording.

On Fuller's view, no system of rules that fails minimally to satisfy these principles of legality can achieve law's
essential purpose of achieving social order through the use of rules that guide behavior. A system of rules that
fails to satisfy (P2) or (P4), for example, cannot guide behavior because people will not be able to determine what
the rules require. Accordingly, Fuller concludes that his eight principles are "internal" to law in the sense that
they are built into the existence conditions for law.6

These internal principles constitute a morality, according to Fuller, because law necessarily has positive moral
value in two respects: (1) law conduces to a state of social order and (2) does so by respecting human autonomy
because rules guide behavior. Since no system of rules can achieve these morally valuable objectives without
minimally complying with the principles of legality, it follows, on Fuller's view, that they constitute a morality.
Since these moral principles are built into the existence conditions for law, they are internal and hence represent
a conceptual connection between law and morality. Thus, like the classical naturalists and unlike Finnis, Fuller
subscribes to the strongest form of the Overlap Thesis, which makes him a conceptual naturalist.

Nevertheless, Fuller's conceptual naturalism is fundamentally different from that of classical naturalism. First,
Fuller rejects the classical naturalist view that there are necessary moral constraints on the content of law, holding
instead that there are necessary moral constraints on the procedural mechanisms by which law is made and
administered: "What I have called the internal morality of law is ... a procedural version of natural law ... [in the
sense that it is] concerned, not with the substantive aims of legal rules, but with the ways in which a system of
rules for governing human conduct must be constructed and administered if it is to be efficacious and at the same
time remain what it purports to be" (Fuller 1964, 96- 97).

Second, Fuller identifies the conceptual connection between law and morality at a higher level of abstraction than
the classical naturalists. The classical naturalists view morality as providing substantive constraints on the content

6
Lon L. Fuller The Morality of Law (Revised ed, Yale University Press, New Haven, 1969) 33–38

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of individual laws; an unjust norm, on this view, is conceptually disqualified from being legally valid. In contrast,
Fuller views morality as providing a constraint on the existence of a legal system: "A total failure in any one of
these eight directions does not simply result in a bad system of law; it results in something that is not properly
called a legal system at all" (Fuller 1964, 39).

Fuller's procedural naturalism is vulnerable to a number of objections. H.L.A. Hart, for example, denies Fuller's
claim that the principles of legality constitute an internal morality; according to Hart, Fuller confuses the notions
of morality and efficacy:

[T]he author's insistence on classifying these principles of legality as a "morality" is a source of confusion both
for him and his readers.... [T]he crucial objection to the designation of these principles of good legal craftsmanship
as morality, in spite of the qualification "inner," is that it perpetrates a confusion between two notions that it is
vital to hold apart: the notions of purposive activity and morality. Poisoning is no doubt a purposive activity, and
reflections on its purpose may show that it has its internal principles. ("Avoid poisons however lethal if they cause
the victim to vomit"....) But to call these principles of the poisoner's art "the morality of poisoning" would simply
blur the distinction between the notion of efficiency for a purpose and those final judgments about activities and
purposes with which morality in its various forms is concerned (Hart 1965, 1285-86).

On Hart's view, all actions, including virtuous acts like lawmaking and impermissible acts like poisoning, have
their own internal standards of efficacy. But insofar as such standards of efficacy conflict with morality, as they
do in the case of poisoning, it follows that they are distinct from moral standards. Thus, while Hart concedes that
something like Fuller's eight principles are built into the existence conditions for law, he concludes they do not
constitute a conceptual connection between law and morality.

Unfortunately, Hart overlooks the fact that most of Fuller's eight principles double as moral ideals of fairness. For
example, public promulgation in understandable terms may be a necessary condition for efficacy, but it is also a
moral ideal; it is morally objectionable for a state to enforce rules that have not been publicly promulgated in
terms reasonably calculated to give notice of what is required. Similarly, we take it for granted that it is wrong
for a state to enact retroactive rules, inconsistent rules, and rules that require what is impossible. Poisoning may
have its internal standards of efficacy, but such standards are distinguishable from the principles of legality in that
they conflict with moral ideals.

Nevertheless, Fuller's principles operate internally, not as moral ideals, but merely as principles of efficacy. As
Fuller would likely acknowledge, the existence of a legal system is consistent with considerable divergence from
the principles of legality. Legal standards, for example, are necessarily promulgated in general terms that
inevitably give rise to problems of vagueness. And officials all too often fail to administer the laws in a fair and
even-handed manner even in the best of legal systems.

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 Rudolf Stammler
A pioneering attempt to create a modernized natural law philosophy based on a priori reasoning was made
in Germany by Rudolf Stammler (1856-1938). As a philosophical disciple of Kant, he was convinced that
human beings bring to the cognitive perception of phenomena certain a priori categories and forms of
understanding which they have not obtained through the observation of reality. Stammler taught that there
exist in the human mind pure forms of thinking enabling men to understand the notion of law apart from,
and independently of, the concrete and variable manifestations in which law has made its appearance in
history.

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 Stammler, however, departed from his master Kant by breaking the notion of law down into two
components: the concept of law and the idea of law. Kant had defined law as the aggregate of the
conditions under which the freedom on one could be harmonized with the freedom of all. Stammler
pointed out that this formula was faulty because it confused the concept of law with the idea of “right” or
just law. The concept of law, he said, must be defined in such a manner as to cover all possible realizations
and forms of law in the history of mankind. Stammler believed that he had found such an all-embracing
definition of law in the following formula” “Law is the inviolable and autocratic collective will”. A
number of different elements are contained in this formula. Law is the collective will, that is, a
manifestation of social life. It is an instrument of social co-operation, not a tool for the satisfaction of
purely subjective desires of individuals devoid of community value.

Furthermore, law is an expression of a collective will which is autocratic and sovereign. The rules of law,
once they have been established, claim a compulsory force. They are binding irrespective of the individual
citizen’s inclination to follow them. This fact, said Stammler, distinguishes law from customs and social
conventions, which constitute mere invitations to the citizens to comply with them and do not purport to
be absolutely compulsive. Finally, the rules of law contain an element of inviolability. This means that,
as long as they are in effect, they are strictly binding not only upon those who are subject to them but also
upon those who are entrusted with their creation and enactment. Herein, according to Stammler, lies the
difference between law and arbitrary power. We are confronted with the latter when a command is issued
which the holder of power does not regard as an objectively binding regulation of human affairs, but
merely as a subjective gratification of a present desire or impulse without normative force.

From the concept of law Stammler distinguished the idea of law. The idea of law is the realization of
justice. Justice postulates that all legal efforts be directed toward the goal of attaining the most perfect
harmony of social life that is possible under the conditions of the time and place. Such a harmony can be
brought about only by adjusting individual desires to the aims of the community. According to Stammler,
the content of a rule of law is just if it is conductive to harmonizing the purposes of the individual with
those of society. The social ideal, as Stammler sees it, is a “community of free-wailing men”. The term
“free” as used in this formula, does not denote an act of volition which is directed by the subjective and
selfish desire of an individual; in accordance with Kantian terminology, a free act is one that is objectively
and rationally justified from the point of view of the common interest.

Stammler pointedly emphasized that his social ideal could serve merely as a formal method for
determining whether the content of a specific law was just, it could not be used as a universal substantive
standard for passing judgment on the “rightness” of concrete enactments.12 Stammler’s formula has in
fact been decried as essentially empty in content. It cannot be denied, however, that Stammler, in
contradiction to his own methodological premises, did derive some absolute postulates of “right law” from
his social ideal. In any attempt to realize it, he wrote, the legislator must keep four fundamental principles
in mind:7

1. The content of a person’s volition must not be made subject to the arbitrary power of another.

7
http://www.constitution.org/haines/haines_009.htm
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 2. Every legal demand must be made in such a manner that the person obligated may remain his own
nearest neighbor (retain his self respecting personality).

3. A member of the legal community cannot be excluded from it arbitrarily.

4. A power of control conferred by law can be justified only to the extent that the person affected thereby
may remain his own nearest neighbor (retain his self-respecting personality).

What do these “principles of respect and participation”, as Stammler called them, mean in substance?
They mean that each member of the community is to be treated as an end in himself and must not become
the object of the merely subjective and arbitrary will of another. No one must use another merely as a
means for the advancement of his own purposes. “To curb one’s own desires through respect of another,
and to do so with absolute reciprocity, must be taken as a principle in the realization of the social ideal”.
This notion of a community of free men treating each other as ends in themselves is close to the Kantian
idea of law, but differs from it in two respects. First, the community of individuals takes the place of the
free individual as such; this means that Stammler’s formula is somewhat less individualistic than Kant’s.
Second, Stammler’s formula in its abstractness leaves more room for variety and diversity in positive law
than Kant’s natural law definition. “There is not a single rule of law”, said Stammler. “the positive content
of which can be fixed a priori”. In his view, two legal systems with widely varying rules and principles of
law may both be in conformity with his social ideal.This ideal does not embody a concrete system of
natural law but represents merely a broad yardstick by which the justice or injustice of positive rules of
law may be tested. It is, at the most, a “natural law with a changing content”. With the eternal and
immutable law of nature of the classical period it has very little in common

CONCLUSION
It may be noted that the large majority of these legal theories were normative in character in the sense that they
were concerned with the paramount objectives to be pursued by social control through law. In other words, they
dealt with he “ought” rather than with the “is’ of the legal life. This characterization would be applicable to
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most theories of natural law, to the philosophy of transcendental idealism, to utilitarianism, and to certain
versions of sociological jurisprudence. The law is a large mansion with many halls, rooms, nooks, and corners.
It is extremely hard to illuminate with a searchlight every room, nook and corner at the same time, and his
especially true when the system of illumination, because of limitations of technological knowledge and
experience, is inadequate, or at least imperfect.

Proceeding from similar methodological and epistemological premises, Jerome Hall has made a strong plea for
present day scholastic effort to creat an “integrative jurisprudence”. He has castigated the ‘particularistic
fallacy” in jurisprudence, especially the attempt to separate from another value elements, factual elements, and
form element in legal theory. What is needed today, in opinion of Hall, is an integration of analytical
jurisprudence, realistic interpretations of social and cultural facts, and the valuable ingredients of natural-law
doctrine. All of these divisions of jurisprudence are intimately related to, and dependent on, one another. Such
ideas and efforts should be deemed sound and constructive. Our historical experience has taught us that it is
impossible to explain the institution of law in terms of one single, absolute factor or cause.

The historical school of law has made a significant contribution to legal knowledge by teaching that the
national genius of a people may have its share in the creation of a great legal system. Further, the historical
school cannot adequately explain why Roman law, several centuries after its decline in the world of antiquity,
was revived in a new and different civilization. Nor can historical school account the fact that the legal systems
of Germany and Switzerland were transplanted to countries like turkey and Japan and were made to work
satisfactorily in those countries.In reality, the problem of achieving justice in human relations is the most
challenging and vital problem of social control through law, and it is one that is by no means impervious to the
method pf rational argument. The use of theses method does not demand unanimity or universality in the
reaching of conclusions concerning the justice of a legal measure.

Bibliography and Webliography

Books:

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 1. Jurisprudence and Legal Theory by V.D.Mahajan.
2. The Province of Jurisprudence Determined.
3. Jurisprudence: The Philosophy & Method of the Law by Edgar Bordenheimer
4. Studies in Jurisprudence and Legal Theory; by Dr. N. V. Paranjape; published by Central Law Agency

Websites:

1. www.legalserviceindia.com
2. www.radicalacademy.com

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