Natural Law School: origin and development through times

In jurisprudence the term ‘Natural Law’ means those rules and principles which are
considered to have emanated from some supreme source (other than any political or
worldly authority). Various theories have been propounded since very early time
about the source, authority and relation of these rules (natural law) with law (positive
law). These theories, though mostly divergent in nature and supporting contrary
ideologies, proceed from the common ground that the source of these rules is not
any worldly authority. Some say that these rules have come from God; some find
their source in nature; others say that they are the product of ‘reason’. Therefore,
these rules have been given different names by different jurists (on the basis of their
source) such as Divine Law, Moral Law, Law of Nature, or Natural Law,
Universal Law, Law of God, Unwritten Law and so on. The natural law theories
reflect a perpetual quest for absolute justice. It has been an appeal to absolute
justice, authority and rules higher than positive law. Sometimes, these theories have
been used to serve divergent purpose. It was used to support existing authority and
also to foment revolutions against it. In the name of Natural Law from time to time,
different principles and ideologies have been preached. After the French Revolution
the rights of individuals given in the Constitution as inalienable were said to be based
on natural law. The American Constitution also incorporates many principles of
natural law. American judges in the name of natural law of principle resisted social
legislation in the name of natural law many jurists have asserted the validity and
authority of the international law. In fact, the theories about natural law have not
been evolved to explain any given legal system but rather to serve an ulterior end
namely the fulfilment of the social need of the age.

According to Christian Thomasius- “Natural Law is a divine law, written in the

hearts of all men, obliging them to do those things which are necessarily consonant
to the rational nature of mankind, and to refrain from those things which are
repugnant to it.”

Locke- The state of Nature has law of Nature to govern it, which obliges everyone
and reason, which is that law, teaches all mankind who will consult it, that being all
equal and independent, on one ought to harm another in his life, health, liberty or
possessions.
From the jurisprudential point of view, natural law means those rules and
principles which are supposed to have originated from some supreme source other
than any political or worldly authority. Some thinkers believe that these rules have a
divine origin; some find their source in nature while others hold that they are the
product of reason. Even the modern sociological jurists and realists have sought
recourse to natural law to support their sociological ideology and the concept of law
as a means to reconcile the conflicting interests of individuals in the society.

Main Characteristics of Natural Law

(i) It is basically a priori method different from empirical method, the former
accepts things or conclusions in relation to a subject as they are without
any need or enquiry or observation while empirical or a posterior approach
tries to find out the causes and reasons in relation to the subject-matter.
(ii) It symbolises physical law of nature based on moral ideals which has
universal applicability at all places and times.
(iii) It has often been used either to defend a change or to maintain status quo
according to needs and requirement of the time. For example, Locke used
natural law as an instrument of change but Hobbes used it to maintain
status quo in the society
(iv) The development of human rights jurisprudence and basic rights or men
essentially owes its origin to the natural law philosophy of the post-
nineteenth century.
(v) It embodies with it the values of reason, justice, morality and ethics, which
provide a common base of legal philosophy and philosophical or ethical
jurisprudence.
(vi) The concept or rule of law in England and India and due process in USA
are essentially based on natural law philosophy.

Natural Law theories may be broadly divided into 4 classes:

(i) Ancient theories.

(ii) Medieval theories.
(iii) Renaissance theories.
(iv) Modern Theories.
 (i) Ancient Theories

Greece:

Political conditions caused the birth of natural law idea- The Greek thinkers
developed the idea of natural law and laid down its essential features.

Heraclitus:- He pointed out that the reason is one of the essentials of being. The
unstability of political institutions and frequent changes in law and government in
small city states of Greece made some jurists to think that law was for the purpose of
serving the interests of the strong and was matter of expediency. But the same
conditions made some other jurists to think on a different line. Against changing
Governments, arbitrariness and tyranny, philosophers started thinking of some
immutable and universal principles.

Socrates (470 to 399 B.C.): Human ‘insight’; Positive law to be obeyed-

Socrates said that like natural physical law there is a natural law. Man possesses
‘insight’ and this ‘insight’ reveals to him the goodness and badness of things and
makes him know the absolute and eternal moral rules. This human ‘insight’ is the
basis to judge the law. Socrates did not say that if the positive law is not in
conformity with moral law it would be disobeyed.

Aristotle (384 to 322 B.C.): According to him, man is a part of nature in two ways;
First, he is the part of the creatures of the God, and Second, he possesses active
reason by which he can shape his will. By his reason man can discover the eternal
principle of justice. The man’s reason being the part of the nature, the law
discovered by reason is called ‘natural justice’. Aristotle defined ‘natural justice’ as
“that which everywhere has the same force and does not exist by the people thinking
this or that.” Aristotle gave ‘natural law’ a very solid ground to stand upon. The fullest
elaboration of ‘natural law’, in Greek legal philosophy was made by Aristotle. His
thesis has inspired great philosophers even in modern times.

Rome

Stoics; Man’s reason is the basis:- In Rome Stoics built up on the theory of
Aristotle but transformed it into an ethical theory. According to them, the entire
universe is governed by ‘reason’. Man’s reason is a part of the ‘universal reason’.
Therefore, when he lives according to reason, he lives according to nature or lives
’naturally’. It is the moral duty of man to subject himself to the ‘law of nature’. The
laws of nature are of universal application and are binding on all men. Positive law
must conform to the ‘natural law’.

Influence of this theory: The theory of Stoics exercised great influence upon the
jurists during Republican Period and some of them paid high esteem to ‘natural law’.
But in Roman system the theory of ‘natural law’ did not remain confined only to
theoretical discussions, Romans were very practical people. They used natural law
to transform their narrow and rigid system into a cosmopolitan one. In this way
natural law exercised a very constructive influence on the Roman law.

India:

Hindu system; Source of law is God: Hindu legal system is perhaps the most
ancient legal system of the world. They developed a very logical and comprehensive
body of law at very early times. A sense of ‘justice’ pervades the whole body of law.
According to the Hindu view, law owes its existence to God. Law is given in ‘Shruti’
(that which is heard known as Vedas) and ‘Smritis’. The king is simply to execute
that law and he himself is bound by it and if goes against this law he should be
disobeyed.

Dark Ages

Nature to be overcome- During Dark Ages, the early Christian Fathers expressed
views on the ‘law of nature’ from a theological base. Important of them is St.
Augustine. According to him, the union with divine is the end of law. To attain this
end the physical instincts of the body should be suppressed. Nature misleads and
corrupts man, and therefore, it should be overcome and destroyed. The institution of
man, such as government, or property etc. are to be disregarded. This approach is
completely in contrast to the theories we have discussed earlier, Later on, in
medieval time, Christian Fathers modified this approach and gave a respectable
place to ‘natural law’.

(ii) Medieval Theories

Acquinas; Church as the law giver- Catholic philosophers and theologicians of the
Middle ages gave a new theory of ‘natural law’. Though they too gave it theological
basis, they departed from the orthodoxy of early Christian Fathers. Their views are
more logical and systematic. Thomas Acquina’s views may be taken as
representative of the new theory. His views about society are similar to that of
Aristotle. Social organisation and state are natural phenomena. 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;

(a) Law of God

(b) Natural Law, which is revealed through the reason of man
(c) Law of Scriptures of Divine law, and
(d) Human Laws.

According to him Natural law is a part of divine law. Positive law is valid only to the
extent to which it is compatible with ‘natural law’ and this in conformity with ‘eternal
law’.

(iii) Renaissance Theories

Rationalism and other new ideas and developments: This period marks a
general awakening and resurgence of new ideas in all the fields of knowledge, New
and developed branches of knowledge and discoveries of science shattered the
foundation of established values. ‘Rationalism’ became the creed of the age.
Secondly, the development in the field of commerce created new classes in the
society which wanted more protection from the state. Colonisation caused a rivalry
among the States. ‘Reason’ is the foundation-stone of all these theories but it is
secularized ‘reason’ and not the theological ‘reason’. The ‘natural law’ theories of this
age have also the same characteristic. It gave birth to the conception of nationalism.
The theories proceed from the supposition that a ‘social contract’ is the basis of
society.

Social Contract- In the beginning man lived in the natural state. They had neither
any government nor any law. The men entered into an agreement (known as pactum
unionis) for the protection of their lives and property. Thus, society came into
existence. They undertook to respect each other and live in pace. Then they entered
in an agreement and surrendered their freedom to an authority for the protection of
their lives and property. Implication of this theory is that the people are the source of
political power.

Views of some Philosophers

Grotious (1583-1645): Grotius built his 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 because the former was given power only for that purpose.
The sovereign is bound by natural law. He says that how howsoever bad the ruler
may be, it is the duty of the subject to obey him. His main concern was the stability of
the political order.

On this theory Grotious laid the foundations of International law. From ‘social
contract’ theory he deduced a number of principles in this regard. First, that the
governments are equal, secondly, that the governments in their foreign relations are
perfectly free; thirdly, that the promised made between the governments are of a
binding nature because to fulfil a promise is a principle of ‘natural law’.

Hobbes (1558-1679): His theory is also based on ‘social contract’. Before the social
contract, man lived in a chaotic state. According to him, man’s life in a state of nature
was one of fear and selfishness. It was solitary, poor, nasty, brutish and short. The
idea of self-preservation and avoiding misery and pain are inherent in his nature.
Hobbes is a supporter of absolutism. Subject has no rights against sovereign.

Locke (1632-1704): Locke interpreted the natural law and social contract in a new
way. According to him 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. So long as the
government fulfils this purpose, the laws given by it are valid and binding but when it
ceases to do that, its laws have no validity and the government may be overthrown.
Locke’s theory is contrary to that of Hobbes. The former supports liberty whereas the
later supports authority. Locke’s theory let to parliamentary democracy. The 19 th
century’s ‘laissez faire’ theory in economics derived inspiration from his views.

Rousseau (1712-1778): According to him social contract is not historical fact but a
hypothetical construction of reason. Before this contract, man was happy and free
and there was equality among men. By the social contract men united for the
preservation of their rights of freedom and equality, for this they surrendered their
rights not to a single individual –sovereign, but to the community to named ;general
will’. According to him it is the duty of every individual to obey the ‘general will’
because in doing so he directly obeys his own will. His natural theory stands for the
freedom and equality of men. His theory (of general will) prepared ground for new
theories of government and law to come.

Modern Theories

Nineteenth Century

19th century hostile to ‘natural law’: In the nineteenth century, the popularity of
natural law theories suffered a decline. The natural law theories reflected, more or
less, the great social, economic and political changes which had taken place in
Europe. ‘Reason’ or rationalism was the spirit of the eighteenth century thought. The
problems created by the new changes and developments demanded practical and
concrete solution. A Priori methods of the natural law philosophers were
unacceptable in the emerging age of science. On the other hand, historical
researches disclosed that the ‘social contract’ was a myth. The historical and
analytical approaches to the study of law were more realistic and attracted jurists. In
this changed climate of thought it became difficult for the ‘natural law’ theories to
survive. Therefore, nineteenth century was, on general, hostile to the ‘natural law’
theories.

Twentieth Century

Revival of ‘natural law’: Towards the end of the nineteenth century, a revival of the
‘natural law’ theories took place because it was realised that abstract thinking or a
priori assumptions were not completely futile. The pure positivist approach failed to
solve the problems created by the changed social conditions. The emergence of
ideologies such as Fascism and Marxism caused development of counter ideologies
and thus contributing to the revival of ‘natural law’ theories. The new approach is
concerned with practical problems. It attempts to harmonize the ‘natural law’ with the
variability human ideals and takes into account the new legal theories putting
emphasis on society. To distinguish this approach to ‘natural law’ (recent) from the
old theories, the former has been called ‘natural law with a variable content’.

Following philosophers have given their theories in the present century:

Stammler- Stammer says that ‘all positive law is an attempt at just law’ and that is
justice law or justice is a ‘harmony’ of wills or purposes within the framework of the
social life. The harmony of wills or purposes varies according to time and place. For
the knowledge of wills and purpose one must come in actual contact of the living
social world. This will enable one to judge as to what purposes deserve legal
recognition. By this technique one can find out what is relatively just, and it is this
‘just’ which the law should endeavour to attain. This concept has been called by
Stammler as, ‘natural law with a variable content’.

Kholer- Kohler defines law as ‘the standard of conduct which is consequence of the
inner impulse that urges men towards a reasonable form of life, emanates from the
whole, and is forced upon the individual. He gives a new interpretation to the legal
history. He says that legal interpretation should not be materialistic. The society, in
the course of evolution advances morally and culturally as well. Taking the
requirements of culture into considerable law can serve its purpose netter. He says
that there is no eternal law.

The approaches of both these philosophers are very scientific and logical and are
free from the right and a priori principles.

Hart- H.L.A. Hart is a great jurist of the present century. He combines positivism with
natural law. He has attempted to restate a natural law position from a semi-
sociological point of view. He states that there are certain substantive rules which
are essential if human beings are to live continuously together in close proximity.
Hart places primary emphasis on an assumption of survival as a principal human
goal. We are concerned with social arrangements for continues existence. There
are, therefore, certain rules which any social organisation must contain. These rules
protects the inevitable features of the human condition, there follows a ‘natural
necessity’ for certain minimum forms of protection for persons, property and
promises.

Some other jurists- certain other jurists, particularly of France have given their
theories of ‘natural law’. Some Catholic jurists have also given their theories of
‘natural law’. According to them, the characteristic of ‘natural law’ is that it is
concerned with the good of the society. What is good of the society is variable, and
hence, ‘natural law’ is also variable.

This brief survey of the ‘natural law’ theories reveals that its concept has been
changing from time to time. Natural law provided a firm ground for theorizing and
voicing the ideas and thoughts of a particular age. It has greatly influenced the
positive law and has modified it. As the law is an instrument not only of social control
but of social progress as well, it must have certain ends. The ‘natural law’ theories
have essentially been the theories regarding the ends of law.

The ‘natural law’ influenced the systems of various countries:

England- In England, where ‘natural law’ never flourished in the form of a theory, its
principles found their place in the body of law. The judicial control of administrative
tribunals, recognition of foreign judgments, and application of foreign law in case of
conflict of laws are founded on the principle of natural justice. Reasonableness in tort
and elsewhere is an outcome of ‘natural law’ ideas. Many concepts of the English
law such as quasi-contract, unjust enrichment etc. are based on ‘natural law’
principles. ‘Justice, equity, and good conscience’ which has exercised a great
formative influence on the English law is founded on ‘natural law’.

America- In America, the ‘natural law’ theories have effected a great legal
development, In no other legal system the principle of natural justice has no much
moulding and creative effect as in America. The ‘Declaration of Independence’
reflects a great influence of the ideas of Locke and Rousseau on it. It says that the
right of life, liberty and the pursuit of happiness are the inalienable rights of men. In
America, the power of legislation is limited by the principle of natural justice and the
Supreme Court has the power of judicial review of the legislation. In determining the
validity of enactments, the principle of natural justice plays a very important part.
India- In India, number of legal principles and concepts have been borrowed from
England, and as pointed out earlier, many of them are based on natural law
principles, such as, quasi-contract, reasonableness in tort, justice, equity and good
conscience. The Indian Constitution embodies a number of principles of natural law.
It guarantees certain basic liberties i.e. Fundament Rights to citizens. It empowers
the High Courts and the Supreme Court to exercise control over the administrative
and quasi-judicial tribunals and one of the grounds on which orders passed by the
latter may be set aside is the violation of the principles of natural justice. The
principles of natural justice have been incorporated in article 311 which says that no
civil servant can be dismissed, or removed or reduced in rank until he has been
given reasonable opportunity of showing cause against the action proposed to be
taken against him. The ingredients of the principle of ‘natural justice’ and its scope
and applicability has been laid down by the Supreme Court in a number of cases.

In A.K. Kraipak v. U.O.I. A.I.R. 1970 S.C., It was held that “The aim of the rules of
natural justice is to secure justice or to put it negatively to prevent miscarriage of
justice”.

In the case of Menka Gandhi v. U.O.I. (A.I.R. 1978 S.C) it was held that “Natural
justice is a great humanising principle intended to invest law with fairness and to
secure justice and over the years it has grown into a widely pervasive rule effecting
large areas of administrative action”.