• Ms. Ankita Shetye

Natural Law Theory

Updated: Feb 17, 2021

Meaning & definition

Natural law theory is a philosophy of law that forces on the law of nature. This school of jurisprudence belief that some ideals i.e morality, ethics, life, freedom etc are inherent law that are common to all. This theory has been interpreted differently from time to time depending upon needs of developing legal thoughts. There is not any unanimous & clear-cut definition to define what actually a Natural Law is.


Various philosophers have tried to give a wider picture in relation to Natural law according to their own perspective. But all of them have agreed on a point that there exists a law which is inherent in nature of a man and is independent of any act of legislation, convention or any other institutional devices. Undoubtedly, there is something inbuilt in human nature by virtue of which a human can differentiate between a good or bad conduct. It is eternal and unlike other laws, it is not subject to change over a periodical time.


The source of this law is not any political sovereign but a divine authority. The supporters of this theory believe that natural law is only discovered by the human beings, it is not the product of human activities. It is the creation of a supreme power whom we can called God or Nature. This is the reason why many exponents have used different terms i.e. Divine Law, law of Nature, Law of God, etc. to define Natural law. It come into existence by the preaching of philosophers, prophets etc.


According to Blackstone- “The natural law being co-existent with mankind and emanating from God himself, is superior to all laws. It is binding over all the countries at all the times and no man-made law will be contrary to the law of nature”


Commenting on natural law Cohen says- “Natural law is not a body of actual enacted or interpreted law enforced by the courts, it is in fact a way of looking at things and a humanistic approach of judges and jurists. It embodies within it, a host of ideals such as morality, justice, reason, good conduct, freedom, equality, liberty, ethics and so on.”


From jurisprudential point of view natural law means those rules and principles which are supposed to have originated from supreme source other than any political authority. After considering the above-mentioned definition it can be safely concluded that a natural law embodies various ideals of humankind such as morality, justice, good conduct, etc. The natural law is superior to all the legislative enactments and human laws. Thus, all the forms of man-made laws are secondary to the natural law and they should pay obedience to it. Unlike other laws, it is not codified as such. Also, it doesn’t provide for any punishment or penalty for its violation. The thinkers of natural law theory have gone to the extent of saying that human laws can only be said to be law in so far as it conforms to the principles of natural laws. The ideals of natural laws have been taken from the very human nature. Therefore, these can’t be eliminated from the purview of law.


Characteristics

  • It symbolizes physical law of nature based on moral ideals which has a universal applicability at all places and times.

  • It can be used as a tool either to defend a change or to maintain status quo according to needs and requirements. For example- Locke used natural law as an instrument of change but Hobbes used it to maintain status quo in the society.

  • The natural law philosophy of post-nineteenth century lead to the development of human rights jurisprudence.

  • It incorporates various ideals like justice, reason, morality and ethics which provide a common base for legal philosophy and ethical jurisprudence.

  • It has always been used against tyrannical and authoritarian rule of monarch.

  • The concept of ‘rule of law’ in England and India is based on Natural law theory.

  • It is basically a ‘priori’ method which accepts the things or conclusions as they are without any need or inquiry or observations.

Historical evolution

The development and evolution of Natural law theory can be examined through four different phases which are as follows:

  • Ancient Phase

Ancient period can also be sub-divided into two period- A) Greece, B) Roman


During Greece period there were many authors who interpreted natural laws. They regarded law as closely related with justice and ethics. They were the first who provide for the ‘reason’ as an essential element of natural law. The views of scholars can be studied as follows:


  1. Heraclitus (530-470 B.C.) - The concept of natural laws was developed by Greek philosophers around 4th Century B.C. Heraclitus was the first Greek who laid down three main characteristics of law of nature which are- 1) Destiny, 2) Order, 3) Reason. He opined that there is a definite relation between the things and a definite order and rhythm of events. He stated that reason is one of the essential elements of natural law.

  2. Socrates (470-399 B.C.) – According to him, “Law is a product of correct reasoning”. ‘Human Insight’ that a man has a capacity to distinguish between good and bad and is able to appreciate the moral values, is the basis to judge the law. He advocated the necessity of natural law for the stability and security of the community. To him, justice may be of two kinds- Natural Justice and Legal Justice. The rules of Natural justice is applicable to all the person and places uniformly but the notions of legal justice may vary from place to place depending on existing statutory law and social conditions.

  3. Plato (427-347) – Socrates’ discipline Plato developed the concept of natural law through his concept of ‘ideal state’ which he termed as Republic. To him, Ultimate justice is discoverable through reason.

  4. Aristotle (385-322) – He defined natural law as ‘Reason unaffected by the desires.’ For him, it embodies the basic principles of justice and morality which have universal validity independent of time and place. According to him, a man is a part of nature in two ways: firstly- he is a creature of God and Secondly- he possesses insight and reason by which he can shape his will.

The Natural law philosophy found its expression in Roman legal system which was divided into three distinct division-

  1. jus civile (applicable to Roman citizens only)

  2. jus gentium ( governed Roman as well as foreigners’ conduct)

  3. jus naturale (composition of jus civile & jus gentium).

The main author of this period was Cicero. For him, nature and reason were the dominating forces in universe and law is the highest reason, implemented in nature which commands what ought to be done and forbids the opposite. He believed in the universal applicability of natural law based on general morality of human society.


  • Medieval Phase

During this period, catholic philosophers and logicians used the natural law theory to establish a new legal order and political ideology based on morals and theology. According to them, all laws are either divine or human. Divine laws are based on nature ad human laws are customs. Main authors of this period are as follows:


Thomas Aquinas (1226-1274) – He defined Law as “an ordinance of reason for common good made by him who cares the community and promulgated through the reason”. He believes that ‘unjust’ law deserves no obedience. He gave four-fold classification of laws, namely-

  • Law of God or External law

  • Natural law (revealed through reason)

  • Divine law or the law of Scriptures

  • Human law (which now termed as ‘Positive Law’)

He opined that positive law should be accepted only to the extent to which it is compatible with natural law or external law.


  • Renaissance Phases

This period is also known as Modern Classical Era. With Renaissance and rise of humanism the natural law became open to rational inquiry free from its former religious trappings. It is a revival of learning as scholars re-studying Greeks and Roman instead of relying on scriptures. This phase has very finest scholars. They can be studied as follows:

  1. Hugo Grotius (1583-1645) – He is the founder of International law. He believed that however a bad ruler may be, it is the duty of his subjects to obey him. There is an apparent inconsistency in natural law theory propounded by Grotius. On one hand, he contends that ruler is bound by natural laws but on other hand he argued that even if ruler go against natural law, he should be obeyed. He was the supporter for absolute power to the ruler. But it appears that his main concern was stability of political order peace in the society. He considered divine law as a ‘Grand Mother’, Natural law as ‘Parents’ and positive law as the ‘Child’.

  2. Thomas Hobbes (1588-1679) – Like Grotius, he also used natural law theory to justify his stand for advocating absolute power given to the ruler to protect the subjects. His main concern was towards self-preservation and property. He supported natural law but completely denounced the religious factor in his theory.

  3. John Locke (1632-1704) – Unlike Hobbes, his social contract was based upon liberal principles. For him, the purpose of state and law is to hold and protect the ‘natural rights of men’. He opined that as long as state is protecting the rights of individual, its laws are binding but when it ceases to do so, people have a right to revolt against the same. Thus, he recognized the existence of certain inalienable natural rights, namely- “life, liberty and estate (property)”.

  4. Jean Jecques Rousseau (1712-1778) – He favoured people’s sovereignty. His natural law theory was confined to the freedom and liberty of individual. He stated that the state and law are product of ‘General Will’ of the people and not of the ‘reason’ as proclaimed by earlier philosophers.

  5. Immanuel Kant (1724-1804) – He emphasized that the basis of social contract was ‘reason’. He gave a sharp distinction between natural rights and acquired rights. He recognized only one natural right which is freedom of individual.


  • Modern Phase

The evolution of Natural law theory, during modern period, can be studies under two sub-heads- A) 19th Century, B) 20th Century


19th Century- this time is regarded as unfavorable to the natural law theory. The decline of natural law theories was seen in 18th -19th century with the advancement of empirical method of study and scientific behavior. The exponents of analytical positivism, Bentham and Austin rejected natural law on the ground that it was ambiguous and misleading. Bentham called it “a simple non-sense”. The doctrines propagated by Austin and Bentham completely divorced morality from law. Theories like Origin of Species and Social Statics (Herbert Spencer) shattered the very foundation of natural law as it was realized that the 19th century complex problems needed a practical and realistic approach which the natural law theory fails to do so as it was just based on idealism and morality.


20th Century- As the 19th century legal theories refused to accept morality and reason as an essential element of law, they failed to satisfy the aspirations of society as a whole. As a result, at the end of 19th century and in the beginning of 20th century natural law theories saw a revival because of many reasons which can be stated as below:

  • Exaggerated importance attached with positive law and over emphasized on positivism failed to satisfy aspiration of people,

  • Abstract thinking was not futile at all,

  • Impact of materialism compelled the thinker to look for some value-oriented ideology which could prevent general moral degradation of people.


The main exponents of new revived theory of natural law were Rudolf Stammler, John Rawl, etc.

  1. Rudolf Stammler (1856-1919) – he defined law as, “species of will, others-regarding, self-authoritative and inviolable”. For him, law is the law of nature with a variable content. He defined law of nature as a ‘just’ law. He laid down two fundamental principles necessary for ‘just’ law, namely; Principle of respect and Principle of community participation.

  2. John Rawl (1921-2002)- he propounded two basic principles of justice- i) Equality of rights to securing generalized wants including basic liberties and minimum means of subsistence, ii) Social inequality should be arranged so that maximum benefit can be ensured to the community as a whole. According to him, “a well-ordered society is one which is effectively by a public perception of justice and fairness”. He postulates three levels of justice:

  3. Local justice (principles applicable directly to all institutions and associations)

  4. Domestic justice (applicable to families)

  5. Global justice (applicable at international level)

These are, however, subject to reasonable restrictions in order to maintain rule of law.

Shortcomings/Criticism

Despite of merits, this theory has been criticized for various grounds which may be stated as follows:

  • The concept of morality is a varying content changing from time to time and society to society. So, to think of universal applicability of law would be incorrect. For an instance, one society may adhere to monogamy while another may permit plurality of marriages.

  • The rules that are embodied in morality in natural law are not amenable to changes but legal rule do need a change with the changing circumstances and requirements pf the society concerned.

  • Legal disputes can be settled in courts of law but disputes relating to natural law can’t be subject to judicial scrutiny.


Despite these shortcomings, it can’t be denied that natural law has played a crucial role in shaping the laws. Directly or indirectly, it was the natural law which provided a model for first man-made law. Therefore, the natural law theory occupies an important place in the realm of politics, law, religion and ethics from the earliest times. It has played a role of harmonizing, synthesizing and promoting peace and justice in different periods and protected public against injustice, tyranny and misrule.


Conclusion

On thoroughly examine the theory of natural law, we will come to the conclusion that this concept has been used to support different ideologies from time to time. on one hand, it has been used as a tool against tyrannical government. On other hand, it has been also used to support absolutism and individualism. But the contribution that the natural law theory has made into the development of modern legal system is very significant. Natural law is not invariable since it emanates from human ‘reasoning’ which is known for its general acceptance. It generated a favourable climate for reformation, renaissance and provided a sound foundation for fundamental human rights. The principles on which the natural law theory is based has been inserted in the Indian constitution as well. The notions of justice, equality, ethics, freedom, individualism, life etc can be traced in Art 14, 15, 19, 21 and preamble of Indian constitution.

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