This article is authored by Anvita Bhardwaj, from Symbiosis Law School, Noida. This article discusses two schools of jurisprudence, nature law – the philosophical school and positive law – the analytical school. Under this article, you will find a clear distinction between natural and positive law and why natural law should be preferred over positive law. The debate between natural and positive law has always existed and will continue to exist. This article consists of personal viewpoints with examples of why natural law is on the rise and should be preferred.  

Introduction

Jurisprudentia is a Latin Term, it translates as ‘the knowledge of law’. Jurisprudence signifies knowledge of law and its interpretation. It is concerned with rules of external conduct that people abide by.

Law and Morality

Since time immemorial there has been an ongoing debate between law and morality. Most of the time, morals give rise to laws. Both law and morality have the same objective, that is, to regulate a righteous conduct in people. They are backed by social or external sanctions. According to Bentham, legislation centres on morals but has a different circumstance. This means that, generally, morality is the basis of law. However, there are certain acts that are immoral in nature but not per se illegal.   

Let us analyse the above statement with the help of case law.

Queen v. Dudley and Stephens

In the mentioned case law, there were three seamen and a boy consisted of the crew of an English yacht. They were cast away in a storm on the high seas and as a result, they were compelled to travel the seas in an open boat. There was no food or water and in order to save themselves from death due to starvation, the seamen killed the boy and fed on him to stay alive. However, when they were rescued, they were tried for killing the boy and presented in front of a jury and the jury convicted them.

Now it is on you to decide if the verdict is valid as per your morals. In my personal opinion, there is a survival instinct in every human and therefore, it may be noted in order to grant a lesser sentence. You may read the full judgment here in order to get a deeper insight into the judgment. Think about the situation, had they not sacrificed the boy, all four of them would have died of starvation. There was a survival instinct, in order to save three they decided to sacrifice one. However, we do know that homicide is illegal. So, the question is, would you follow the law and choose to die in a similar situation or is the homicide justified according to you because ultimately the sacrifice of one person is being made to save three lives.  

Naturalist/Positivist divide in jurisprudence

Natural law philosophers anticipate law as a dictate of reason. They felt that only rules which satisfy the test of reasonability must be enforced as law. Whereas, the positivists believed that the fact of obedience is enough to constitute something as law.

This can be understood with a simple example. Let’s take the case, Sweet v. Parsley. In this case, Stephanie Sweet was convicted under the Dangerous Drugs Act as certain traces of cannabis were found in her residence. However, she was merely the landlady of the house and had sublet it to tenants. She retained a room but visited occasionally only to collect rent and letters. Since possession of drugs was a strict liability offence, she was convicted by the Courts at first.

Here, a natural law philosopher would be of the mindset that since she was not the one consuming cannabis, she should not be held liable because it is unreasonable to hold someone liable for something they did not do. However, a positivist will justify the act of the State in convicting her because they would be of the opinion that her conviction will bring deterrence in the society as well as more respect for the obedience and authority of law.  

To give you a clearer view, I would briefly discuss below what exactly is Natural and Positive law.

Philosophical school or Natural law

Natural law is founded upon the connection between law and morality. Naturalists believe that an abundance of natural laws is pre-existing in nature, they are just yet to be discovered. The naturalists stress that some rights are inherent by virtue of nature, bestowed upon us by nature and through human reason these laws can be universally understood. It is considered superior to human law and hence used by the jurists to derive the moral validity of laws enforced. This means that moral validity is an important basis for legal validity. As per the theory, this law needs to be universal and applied to all humans at all times. A law that contradicts moral principles is an unjust law as per the naturalists and disrupts the peace and well being of people in a society.

We can see the example of the Declaration of Independence of the United States to see how the link between law and morality has been established. If we see the verbatim of the Declaration it says that “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” We can see how these rights are seen as inherent rights of the citizens and how the government is merely a vessel for the protection of these rights as per the declaration.

Analytical school or Positive law

Now when it comes to the analytical school, the theory defines the relationship between the State and law. Bentham says that the State is a mixture of two factors; maximum happiness and maximum liberty. According to him, law should not be tested on morals rather it should pass the test of utility. John Austin, who is known as the father of analytical school, defines law as the rules enforced for the guidance of intelligent humans by another intelligent human who has more power over them.

He says that law is a command of the sovereign by the sanction. If we talk in simple words, the philosophy of legal positivism says that a law is valid merely by the virtue of fact that it has been approved by a legal authority. So, if one is to argue that a law is unjust as per morality that would be seen as an anomaly because the law has been sanctioned by the command of the sovereign and that is enough to determine its validity. A positivist would be of the view that a regressive law is still a law despite being considered “immoral”, “unjust” or “undesirable” by the people.  

In this regard, I wonder if a staunch positivist would justify the laws promulgated by Hitler with regard to the treatment of the Jews because in reality those laws were sanctioned by the command of the sovereign. However, that is a completely different debate.

Natural law or positive law

Natural law theory is the one that affirms the relationship between law and morality. While the theory of legal positivism rejects the necessary link between law and morality, natural law affirms this necessary link between the two. We will be taking the traditional natural law theory given by Saint Thomas Aquinas into consideration.  This theory is completely based on the connection between law and morals. Law can be considered as the standard for judging. If there happens to be a law that is discriminatory in Nature, it would be judged purely on the basis of moral grounds therefore this standard for judging is one that can be considered some form of higher law, or in other words, morality. One may defend or criticise laws on the basis of moral principles. Laws are what we call the universal moral principles.    

The obligation that law imposes must be common for all human beings, that is, the laws must be the same in all countries. As per Cicero, if a person is rational then law will always be objective to him and never subjective. Therefore, natural laws can only be created by a person who is rational and possesses moral values and principles. The laws may be derived from such a person based on human nature, human reasoning, the physical world or rather a combination of all three elements together. Justice, values, good or bad are purely abstract principles but must be given importance to promulgate laws.

According to me natural law has the advantage over positive law simply because it regards that laws need to adhere to the basic standard of righteousness. It is not stringent when it comes to the factor of righteousness rather simply suggests that there shouldn’t be complete injustice. Natural law is not invoked in any case to say that the law is not perfect therefore it should be discarded as law. It is only invoked with respect to legislation when the legislation enforces a high degree of injustice on the people.

The positivist approach has a problem in its foundation, it separates law from morality. It is criticised by Lon fuller and Ronald Dworkin. Fuller has denied the separation of law and morality.  Fuller agrees that it was the excess of positivist thinking that had made Nazi regime possible. Command of the sovereign had become the final word in deciding its legal character. Fuller answers that if the murder of a person is state-sanctioned it is still murder and that the acts/orders of sovereign can also be illegal. law has to contain both inner morality and substantive morality in order to pass the test of legality. In most cases adherence to the former would guarantee adherence to the latter too.

Should an immoral enactment or command be considered a “law”? Law is made by authorized bodies keeping in mind that it should be valid as per the higher legal authority, which in India’s case is the Indian Constitution.

Natural law and it’s rise in India

The Supreme Court of India has come a long way. It transformed its role drastically from A.K. Gopalan to present day.  In A.K. Gopalan v. State of Madras, the SC refused to examine ‘law’ in terms of ‘jus’ (justice). It adopted a strict positivist posture that law would be considered only as a ‘lex’ and it would not be examined on the grounds of reasonableness and justice.  Even though in Kesavananda Bharati the court put forward the theory of basic structure and sought to limit the amending power of the legislature on the basis of certain ‘fundamental principles’ of the Constitution, in ADM Jabalpur v. ShivKant Shukla again (apart from Khanna, J) the Supreme Court adopted a strict positivist stance. However, after the emergency the Supreme Court changed its stance.

In Maneka Ghandi v. Union of India the court clearly stated that procedure established by law under Article 21 cannot be any procedure, but has to be “just”, “fair” and “reasonable” procedure. Under article 21, the meaning of terms ‘life’ and ‘personal liberty’ have also been interpreted in a wider sense. Similarly, Article 14 has also been interpreted in a wider sense. Violation of article 14 is now not judged only on the basis of “reasonable classification” and “intelligible differentia”. Even if the law does not violate these two criteria it can still be held to be arbitrary; because in the case of E.P. Royappa Bhagwati, J. stated that equality and arbitrariness are sworn, enemies. The best example where law was held to be violative of Article 14 even though there was a reasonable classification that corresponded with the object of the legislation is Nergesh Meerza.

In this case, the Supreme Court held that the rule wherein the services of air hostesses was terminated on first pregnancy was arbitrary as it insulted the ‘Indian motherhood’. This case is a good example where the Court held a law to be bad on moral grounds even though in strict positivist terms there was nothing in the primary rule of obligation which conflicted with the second rule of recognition. In this way, a positive norm was adapted to provide justice in particular facts of the case.

Conclusion

By now I hope the clear distinction between natural and positive law has been understood. Natural law’s best example in the world today is human rights. Human rights are the inherent rights that ought to be made available to all human beings irrespective of their country of origin. They are universal.

There is a need for laws to be connected with morality. If obedience comes just from the law because it is the law, then one will lose the right to question the government in power and simply be expected to follow it. There would be no judicial activism and the judges would have to interpret the law with strict positive posture. When law is connected to morality, rational humans would follow those laws in order to complete their duty to nature. This is why a tilt towards natural law is preferable as it works on the basis of morality and what ought to be rather than the whims or the fancies of the sovereign. That being said, both these theories are not free from their respective criticisms. However, keeping all that in mind, I would still say that the need for natural law is imperative today. Seeing the provisions of the Unlawful Activities Prevention Act, one can see how it is being misused in most cases since there is no provision saying “innocent until proven guilty”, it works on the basis of what the government decides. 

There have been many cases where people have been in confinement in jails only to be found innocent years later. If we see with respect to natural law, even strict liability offences are not valid because they are inconsistent with “nulla peona sine culpa”, this means no punishment without guilt. There are genuine cases where the person acts in good faith but mere conviction is on the basis of strict liability. Let us see an example to understand this better. In R. v. G. (2005), a 15-year-old boy was convicted of rape (statutory rape) of a child under 13. It is a crime as per Section 5 of Sexual offences Act, 2003. However, in this case the girl had made him believe that she was 15 years old and he did not know she was 12 years old, he believed her to be 15 instead of 12. 

On appeal, his sentence was reduced, however, the House of Lords reversed that and he was convicted. Therefore, we can see how sometimes following the law to the letter can be unfair to some. In order for the society to be peaceful, laws should be derived from natural laws and be linked with morality to attach a sense of purpose with theme. Laws should just not be there to cause deterrence. Laws should have a moral and ethical backing in order to be followed by more and more people and that is why, it is better to base laws on morality.  

References


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