This article is written by Aryan Solanki.
Table of Contents
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.
In this article an attempt has been made to conduct a detailed study regarding the development of natural law theory in Ancient, Medieval and Modern period. There has never been unanimity among the jurists regarding the meaning of natural law. During the period of renaissance, the social contract theories came into picture and these theories were contradictory to each other. What was the understanding of natural law in Greece, Roman and in ancient Indian scriptures regarding the natural law? What were the causes of its decline in 19th century? All these questions are answered in this article.
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. The body of rules which was developed in this processes was called jus genitum. These laws were considered as the laws with universal legal principles and represented a good sense of justice. Later on, jus civile and jus genitum became one when Roman citizenship extended all over the Europe. There was unanimity among Roman jurists that whenever any contradiction arose between Natural law and Positive law, former would prevail.
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.
Law of Rita
“Rita” is “satya” and “dharma” truth, justice and equity. Rita also means social order in the society and the Vedic Gods were also responsible to maintain social order. Rita played an important role in building an organised social life in the Vedic society. It provided social norms and morality under which individual could realised his goods. In Vedas the Rita is defined in moral sense as the unerring inner voice of conscience which tells us” this is Rita” that means simply “this is right”, “this is true”.
Rita literally means “the straight line”. According to the MAX MULLER Rita in the Vedas applies as the straight line for the natural force and powers such as the straight line for the sun, the straight line for day and night, the straight line that regulates seasons, and straight line for the universal natural phenomena. Rita also defined morality under the purview of its straight line that means there is a straight line in the society which decides just and unjust.
Dharma
Dharma means “righteousness” and prescribes socio-religious code of conducts in the society. It is known as the customs, moral laws, laws and duties in general, religious virtue ideas, absolute truth, divine justice, conventional code of customs and traditions, what is right and what is wrong. Individuals should pursue that is right universally instead of that is wrong. Its principles are immutable, eternal, based on reason, truth and morality that purpose is to sustain social order.
According to PANINI, a great Sanskrit grammarian of 5th century BC Dharma is an act of religious merit, custom and usage. Dharma was considered as the regulator of all human activities weather social or individual, rational or mystical and mundane or spiritual. Dharma states that the social hierarchy must be maintained by the individuals by performing their respective duties which have been assigned to them by nature. It established an ideal of higher law by which the ruler and the ruled were equally bound and it was the model indicator to distinguish between evil and good, right and wrong, just and unjust.
SAMKHYA was one the Philosophies that emerged around fourth century AD, according to this school of philosophy “the world owes it creation and evolution from nature or prakriti. Kapila was earliest exponent of SAMAKHYA. He opined that man’s life is shaped by the forces of nature and not by any divine agency.
Natural law in medieval Period
During the middle ages, the theological and philosophical ideas of catholic church Inspired by the speculative thoughts and set up their own theory of Natural law. It was the time when there was no political stability in a world emerging from the dark ages. The struggle was beginning between the church and the state and there was the need for the church to establish its supremacy. With a view to establish stability many catholic philosophers and theologians came up with their theories that were more logical and systematic. Thomas Aquinas was the most influential writer with the traditional approach to Natural law and his famous work was the Summa Theologica.
Thomas Aquinas
The core concept of the theory of Thomas Aquinas was the connection between means and ends. According to him there is a relation in nature of things between a given operation and its result. There is a tendency to develop in a certain way is inherent in things. Fire burns but it does not freeze. However, the human mind can appreciate the relation between the means and ends. He can himself choose a particular end and devise means of achieving and law consist means of achieving the ends.
He defined law as “an ordinance of reason for the common good made by him who has the care of the community and promulgated”. Further he divided law into four categories –
- Eternal Law ( Lex aeterna)
- Natural Law (Lex Naturalis)
- Divine Law (Law of Scriptures)
- Human Laws (Lex Humana)
According to him eternal law as unchangeable law, natural law was that part of eternal law which can be revealed by reason as he stated that man is a rational animal and he can decide what is good by reflecting his own impulses and nature. Divine law is eternal law revealed through scriptures and the church has the authority to interpret it. Human laws are the laws made by the state with the purpose of safety and wellbeing of the men. However, these laws must be in conformity with the natural laws.
If the human law is contradictory with natural law then it is unjust law as he gave the phrase “Lex iniusta non est lex” an unjust law is not a law, and such unjust laws need not to be followed. Hugo Grotius set up a new dimension of natural law. He states that natural law is so immutable even it cannot be changed by god that means natural law is independent from every divine force and it would exist if there were no God. According to him natural law is depend upon the nature of the man and he called human nature as the grandmother, natural law the parent and positive law the child. He also emphasised on the sovereign authority which is formed by the individuals whose nature is to form an intellect desire a peaceful society and from that are derived the principles of natural law.
Natural law and Social Contract theory
The period of Renaissance and revolutions in Europe and America pave the way for the spiritual emancipation for the individuals. Political absolutism needed a legal justification of its claim over unlimited authority over the people. 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. The perception regarding the social contract is that men in primitive society lived under the state of Nature; they neither had government nor any law. According to some philosophers that state of nature was full of hardships and oppressions while by some others there was bliss and joy. 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. The principle of self-preservation means man has natural desire for security and order. Law of nature can be discovered by reason which says what a man should do or not to do. During his time the England was under the civil war and this situation convinced him of a great importance of state authority which he wanted to be vested in an absolute ruler.
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 individuals’ natural rights are inalienable; among them the right to property was foremost. In his state of nature men had all the rights which nature could give them. But they did not have an organisation which could regulate these rights.
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. Hence, the right of the individual were the rights of the community. Rousseau’s emphasise was on the general will of the society and the sovereign power was bound to do that which was in common good of the society.
Decline of Natural of Natural law theory in 18th Century
In 18th century the social contract theory saw its decline. Natural law theory was reflected by the economic and political changes which had taken place in Europe. These new changes and developments required concrete and political solutions. The stupendous growth of natural science and new political theories gave strength to empirical methods and rejected deductive methods. 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”. His view regarding the principle of equality was negative as he said that “Absolute inequality is absolutely impossible” and absolute liberty is directly repugnant in any kind of government. 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”.
Conclusion
Every society is subject to constant change and these changes take place time to time as per the needs of the individuals. It is clear by this study that the natural law has also been the subject to change since Ancient period. Its scope is very wide and covers different aspects of society. It has been used to support different ideologies such as theocracy, Absolutism and individualism. It has inspired various revolutions and has also influenced the development of positive law.
Principles of natural law have been embodied in legal system of different countries. For example, in the legal system of England a number of principles of natural law have been embodied. India also borrowed certain principles from England such as justice, equity and good conscience. In the constitution of India a large number of principles are based on the theory of natural law such as Fundamental rights, right to equality and supremacy of judiciary. Finally, we can say that the Natural law has made a great contribution in the legal jurisprudence of the world.
References
- Studies In Jurisprudence & Legal Theory, Dr N.V. PARANJAPE.
- Jurisprudence and Legal theory, Dr V.D MAHAJAN.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
