The Nature of Law

Arvind Nath Tripathi,

Faculty
DSNLU
 Greek and Roman Conceptions of
Natural Law
Natural Law is different from and opposed to
written Law.
Natural Law-Supreme Law, Divine law
Antigone: Natural Law is wise but written law
is arbitrary.
Callicles: Right of the strong. It is natural that
human are unequal.
Different Right and Privilege as per there
capability and capacity.
 Greek and Roman Conceptions of
Natural Law
• Plato’s idea of Natural Law.
• Faith in innate inequality of human being
• Justified class system on the basis of
individual capacity
• Four fold division :Gold ,Silver, Copper and
Iron
 Classical Natural Law Theory (Aquinas,
Blackstone)
Conceptual naturalism: a norm that does not
conform to the natural law cannot be legally
valid.

“[E]very 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” (Aquinas)
 Natural Law
Two core claims of conceptual naturalism:

1) there can be no legally valid standards that

conflict with the natural law;

2) all valid laws derive what force and authority

they have from the natural law.
 John Finnis’ Neo-Naturalism
Basic goods:

- Life
- Health
- Knowledge
- Play
- Friendship
- Religion
- aesthetic experience.
 Natural Law
• “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).

• The ultimate justification for the ruler’s moral

authority “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).
Lon L. Fuller’s functionalist conception of law

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).
 NATURAL JUSTICE
• Audi alteram partem - Hear the other party or the rule of fair
hearing or the rule that no one should be condemned
unheard.
• Right to fair hearing thus includes:-
• 1. Right to notice
• 2. Right to present case and evidence
• 3. Right to cross examination
• 4. Right to legal representation
• 5. Disclosure of evidence to party
• 6. Report of enquiry to be shown to the other party
• 7. Reasoned decisions or speaking orders
 NEMO JUDEX CAUSA SUA
(RULE AGAINST BIAS ) 1
• Bias means an operative prejudice, whether
conscious or unconscious in relation to a party
or issue. The rule against bias flows from
following two principles: -
• a) No one should be a judge in his own cause
• b) Justice should not only be done but
manifestly and undoubtedly be seen to be
done.
 NEMO JUDEX CAUSA SUA
(RULE AGAINST BIAS ) 2
• Bias can take many forms: -
• Personal Bias
• Pecuniary Bias
• Subject-matter bias
• Departmental bias
• Pre-conceived notion bias
 Case 1

• A pregnant women is diagnosed with uterine

cancer. If her uterus is removed, she will be
saved, but the fetus will die.

• May a surgeon perform the operation?

 Case -2
• In the context of war, bombing the enemy is a
morally legitimate action.

• The direct effect of the bombing was the

deaths of civilians and the promotion of
terror. This is not morally acceptable.
 Doctrine of Double Effect
• Is it Permissible?
• Is the Bad Effect Avoidable?
• Is the Bad Effect the Means of Producing a
Good Effect?
• Is the Bad Effect Disproportionate?
 CASE STUDY
• Assume you are a judge, and one day a man
applies to the court for the court to give him
permission to change his sex, to change
himself to a woman. That you can’t find any
law that allow or prohibit this practice in our
laws it becomes your responsibility either to
allow or forbid. What would be your decision?
Why? On what grounds?
 Sri Sumitava Mitra & Ors vs National Jute
Manufactures .(2009) Calcutta High Court
W.P. No. 1505 of 1999
• The petitioners are officers of National Jute
Manufactures Corporation Limited, which is a
Government of India Undertaking. It has about 615
officers and 23000 workers in its six jute mills. It is
the only Public Sector Jute industry in India. There
are two patterns of pay scale of the officers in Public
Sector Enterprises, namely :
• (a) Industrial Dearness Allowances (IDA) pattern, and
(b) Central Dearness Allowance (CDA) pattern.
 Sri Sumitava Mitra & Ors vs National Jute
Manufactures .(2009) Calcutta High Court
W.P. No. 1505 of 1999
• Highlighting all these aspects, it was
submitted by Mr. Sengupta on behalf of the
writ petitioners that there could be no
rational justification for not considering the
matter in its right perspective and there could
be no justification for denying pay revision to
the writ petitioners. According to him, a
conscious discrimination has been
perpetrated.
 Sri Sumitava Mitra & Ors vs National Jute
Manufactures .(2009) Calcutta High Court
W.P. No. 1505 of 1999
• It was further submitted that the company is
running at a loss when there is a pay revision
practically all sections of the employees,
about 23000 in number and denying the same
to only 615 officers. The respondents, in such
view of the matter, virtually created a class
within a class, which is not permissible.
 Sri Sumitava Mitra & Ors vs National Jute
Manufactures .(2009) Calcutta High Court
W.P. No. 1505 of 1999
• Thus, so far the NJMC is concerned, pay
revision and grant of other benefits has been
linked up with revival of the unit. It is,
however, pointed out that except the 600 and
odd persons, about 23000 employees have
not been denied the benefit of pay revision.
 Sri Sumitava Mitra & Ors vs National Jute
Manufactures .(2009) Calcutta High Court
W.P. No. 1505 of 1999
• It cannot be disputed that successful running
of an organization depends on many factors.
It cannot be said that it only depends upon
the performance of an insignificant minority
of the employees. Apart from efficiency on
the part of the employees and the
management, there are factors like proper
infrastructure. Market demand is also another
significant aspect.
 Sri Sumitava Mitra & Ors vs National Jute
Manufactures .(2009) Calcutta High Court
W.P. No. 1505 of 1999
• In view of the fact that there had been steady and
consistent price-rise of all commodities during this
protracted period of time i.e. from 1987, it is
inconceivable that about 600 and odd persons would
be denied the benefit of pay rise. With stagnant pay
structure, the petitioners cannot be expected to
successfully respond to the challenge. This,
consequently, is bound to affect their moral and has
adverse impact on their functioning. As it appears
from the materials on record, the financial liability
also does not seem to be much.
 Sri Sumitava Mitra & Ors vs National Jute
Manufactures .(2009) Calcutta High Court
W.P. No. 1505 of 1999
• Leaving aside that aspect, there is a moral issue is
involved as well. How can a person holding inferior
rank draw salary higher than his superior authority?
This reminds of George Orwell, who in his book
'Animal Farm' said that all are equals but some are
more equal than others. There can be no doubt that
it will be unjust and improper to make the
petitioners' suffer by not revising their pay scale and
to compel them to continue with their existing pay
scale of 1987.
 Sri Sumitava Mitra & Ors vs National Jute
Manufactures .(2009) Calcutta High Court
W.P. No. 1505 of 1999
• Any action that leads to socio-economic
disparity; a decision, which threatens to
disturb functional harmony and any approach
that suffers from inherent hollowness and
latent ambiguity cannot have any legal
sanction.
Sri Sumitava Mitra & Ors vs National Jute Manufactures .(2009)
Calcutta High Court
W.P. No. 1505 of 1999

• Law in changing society like that of ours

cannot stand still and if it fails to respond to
the demands of the situation, if it does not
meet the aspirations of the people, if it
emphasizes only on rules and principles and
ignores the cause of justice, it may not serve
any fruitful purpose. After all, it is not 'NITI'
alone but 'NYAY' as well, which are to be
borne in mind in order to ensure smooth and
effective functioning of the society.