JURISPRUDENCE

UNIT-2 NATURAL LAW THEORIES

INTRODUCTION
The natural thing in the theory of natural law is its universal applicability.
It is considered divine law, eternal law and the law of nature.
Natural law is the product of reason. It has been gone through different stages
and it is defined by men in different ways.
Morality is the central idea of this theory. Morality is considered as the higher
law under which the validity of human laws can be measured.
In ancient time natural law was considered religious or supernatural.
In modern, it is responsible for the modern political and legal ideology.
Natural law is based on reason and good conscience which measures what
should do or not to do.
It is the reason which distinguishes between good and bad.

NATURAL LAW THEORIES IN ANCIENT PERIOD

ANCIENT THEORIES OF GREEK PERIOD

It is believed that the Greeks were the first Ancients who discovered the concept
of natural law and developed its essentials.
At that time in Greece, there was no political stability which made jurists think
to develop new universal principals that would tackle and control the
arbitrariness and tyranny.
The philosophy developed by the Greek thinkers was that if there is anything
universally valid, that is valid by Nature for all men irrespective of time and
country.
And nature is something which is outside the control of men.

SOCRATES
He was a rational thinker and an enlightened master believed in human
‘insight’. He believed that moral is the higher law.
According to him man has his own insight which help him to know what is
good or what is bad, thus man should act accordance with his insight.
He believed that through his insight a man is able to inculcate moral values in
him.

ARISTOTLE
Aristotle is considered to be the founding father of natural law. In his logic, the
whole world is the product of nature.
He divides the life of man into two parts, first, that the man is the creature
which is created by god and second he endowed with active reason by which he
is capable of forming his will.
He also says that the principal of natural justice can be discovered by this
reason.

PLATO
Plato’s work was much inspired by subsequent speculation of natural law
themes.
He opined that God gave to all men an equal sense of justice and of ethical
reverence so that they can preserve themselves in the struggle of life.
He believed that the justice is a harmony of man’s inner life and it can be
achieved by reason and wisdom of man.
In his ideal state each individual is given a particular role according to his
capacity.

NATURAL LAW IN ANCIENT ROME

Natural law exercised a very constructive influence in Roman law.
Romans applied natural law to transform their narrow and rigid system into
cosmopolitan.
They had three divisions of law viz., jus civile or civil law which was applicable
on Roman citizens only.
Jus gentium, the law which is applicable on foreigners.
And jus naturale was the law fixed by nature, immutable and above to all
human laws discovered by right reasons.
On the basis of natural law roman magistrates applied those rules which were
common with foreign laws and to foreign citizens
CICERO
Cicero believed that the law is the highest reason which derives its authority
from Nature.
He opined that there is divine reason inherent in the universe which sometimes
can be more or less identified with the physical ordering of the universe.
Man is the highest creation by virtue of his faculty of reasoning and his welfare
is the ultimate purpose of his creation, thus this reason commands what ought to
be done and what ought not be done.
It is reason of the man by which the sense of justice and injustice can be
measured.

STOICS
Stoics was inspired by the principles of Plato’s theory of natural law and
developed his own theory.
He says that the entire universe is governed by reason.
Man is a part of the universe that is also governed by reason.
It is the reason of man which leads him to live according to the nature.
His theory of natural law had a great influence at the time of republic period.

NATURAL LAW IN ANCIENT INDIA

Ancient Hinduism is the oldest religion in the world and much earlier to Greeks
and Romans the early rig Veda thinkers were deeply impressed by the forces
and powers of nature.
They began to think about the natural powers such as the sun, the moon, the
rains, the wind, the storms, and lightning, etc.
And they also began to put themselves into the questions that
why does the sun not fall down?
Where go the stars by day?
What is the reason behind the lightning in the sky?
The most prevalent perception was that the forces of nature were all represented
by divine forces of nature.
In Ancient India the high moral law was always seen above the positive law
with universal validity like dharma “righteousness”, Artha “wealth” Kama
“desires” and moksha “salvation”.
It was dharma in which the ethos of Indian way of life was characterised.
In the Vedas different gods had been mentioned who were responsible for
different natural phenomena.
It is the God “Varuna” who was very important in Vedic time.
He was considered as the apostle of justice, virtue, and righteousness in the
universe.
He is also given the status of sky guardian of “Rita” in Vedas.
“Rita” is the cosmic order, the ordered course of things in the universe which is
based on the laws of uniformity of nature and universal causation.

NATURAL LAW AND SOCIAL CONTRACT THEORY

The legal construction used by the individuals in the political struggle was that
of social contract.
The concept of social contract is hypothetical construction of reason.
Men entered into an agreement for the protection of their life and property and
thus society came into existence.
In this society they undertook to respect each other and live with peace.
In another agreement they surrendered whole or a part of their freedom and
rights to a sovereign authority which guaranteed every one of them the
protection of life, property and to certain extent liberty.
This was the process in which the sovereign authority was established.
The main exponents of social contract theory were Hobbes, Locke and
Rousseau.

HOBBES
Hobbes understood natural law not certain ethical principles but the law of
nature based on observation and appreciation of human nature.
According to him the chief principle of natural law was the right of self-
preservation.
In his state of nature man lived in a chaotic state and his life was under fear and
selfishness.
In that state of nature there was perpetual and devastating warfare which
threatened everyone.
Under these prevailing circumstances, natural reason dictated to man the rule of
self-preservation for which he tried to escape from the state of permanent
insecurity.
Resulted to which they surrendered all their natural rights to a single person
whom they promised to obey unconditionally.

JOHN LOCKE
John Locke’s state of nature was state of peace, goodwill, mutual assistance and
preservation which was contrary to Hobbes’ state of nature.
He was in favour of individualism and therefore According to him, Natural law
gives more power to individuals than the sovereign.
According to him the right of private property existed prior to any social
contract.
With the purpose of protection of property men entered into a social contract.
Under this contract they surrendered only a part of their rights in order to
maintain law and order in society.
Some natural rights like right to property, liberty and life were vested in the
individuals.

ROUSSEAU
According to Rousseau social contract is the hypothetical construction of
reason.
In his state of nature every individual a free life of a savage.
He neither knew right nor wrong and there was no private property, no jealousy
and no competition.
There was innocence everywhere. However, this state of affairs did not last
long.
In due course of time people started to think about their possessions and the
differences between the rich and poor came into picture which became the
reason of inequality.
In order to tackle these problems, people entered into a contract in which they
surrendered their rights to the community as a whole.

DECLINE OF NATURAL OF NATURAL LAW THEORY IN 18TH

CENTURY
In 18th century the social contract theory saw its decline.
There were many historians and philosophers who rejected natural theory by
saying that it was just a myth.
Hume showed that the reason understood in the system of natural law was based
on confusion. And neither values nor justice are inherent in nature.
According to Bentham natural law is nothing but a phrase. He criticised natural
law and called it “simple and rhetorical nonsense”.
Austin was also against natural law theory and according to him it was
ambiguous and misleading.
He says that all the natural rights of the individuals were created and regulated
by the state and the state did not originate in a social contract.

REVIVAL OF NATURAL LAW IN 19TH CENTURY

Western society was completely shattered after the First World War.
There was no stability and the need for an ideal of justice was arisen.
Theories of positive law completely failed to solve new problems created by the
changed social conditions which resulted natural law theory was revived.
The emergence of ideologies such as Fascism and Marxism also led to the
revival of natural law theories.
This revived natural law is relative not abstract and unchangeable and
concerned with practical problems not abstract ideas.
This new theory of natural law deals with various human ideals.
Therefore, it is called “natural law with variable content”.