By Rahul Deo, CNLU Patna
Editor’s Note: The concept of natural law has taken several forms. The idea began with the ancient Greeks’ conception of a universe governed in every particular by an eternal, immutable law and in their distinction between what is just by nature and just by convention. This paper seeks to analyze the contribution of natural law to legal thought.
The concept of natural law has taken several forms. The idea began with the ancient Greeks’ conception of a universe governed in every particular by an eternal, immutable law and in their distinction between what is just by nature and just by convention. Stoicism provided the most complete classical formulation of natural law. The Stoics argued that the universe is governed by reason, or rational principle; they further argued that all humans have reason within them and can therefore know and obey its law. Because human beings have the faculty of choice (a free will), they will not necessarily obey the law; if they act in accordance with reason, however, they will be “following nature.”[i]
Christian philosophers readily adapted Stoic natural law theory, identifying natural law with the law of God. For Thomas Aquinas, natural law is that part of the eternal law of God (“the reason of divine wisdom”) which is knowable by human beings by means of their powers of reason. Human, or positive, law is the application of natural law to particular social circumstances. Like the Stoics, Aquinas believed that a positive law that violates natural law is not true law.
With the secularization of society resulting from the Renaissance and Reformation, natural law theory found a new basis in human reason. The 17th-century Dutch jurist Hugo Grotius believed that humans by nature are not only reasonable but social. Thus the rules that are “natural” to them — those dictated by reason alone — are those which enable them to live in harmony with one another. From this argument, by the way, Grotius developed the first comprehensive theory of international law.
Natural law theory eventually gave rise to a concept of “natural rights.” John Locke argued that human beings in the state of nature are free and equal, yet insecure in their freedom. When they enter society they surrender only such rights as are necessary for their security and for the common good. Each individual retains fundamental prerogatives drawn from natural law relating to the integrity of person and property (natural rights). This natural rights theory provided a philosophical basis for both the American and French revolutions. Thomas Jefferson used the natural law theory to justify his trinity of “inalienable rights” which were stated in the United States Declaration of Independence.[ii]
During the 19th century natural law theory lost influence as utilitarianism and Benthamism, positivism, materialism, and the historical school of jurisprudence became dominant. In the 20th century, however, natural law theory has received new attention, partly in reaction to the rise of totalitarianism and an increased interest in human rights throughout the world.
NATURAL LAW IN THE ANCIENT PERIOD
Natural law was discovered by the stoic philosophers. This was the answer to the logical problems raised by Socrates. The doctrines of the stoics were demonstrated successfully by experiment, but political circumstances (the Alexandrine empire and then the Roman empire) prevented a clear and decisive experiment. Frequently politicians or revolutionaries use natural law theory, or some competing theory to create institutions. Such cases provide a powerful and direct test of theories. Advances in our understanding of natural law have come primarily from such experiments, and from the very common experience of the breakdown or forcible destruction of state imposed order.[iii]
The bloody and unsuccessful experiment of Socrates disciple, Crotias, showed that the rule of law, not men, was correct. This renewed the question “What law, who’s law.” Not all laws are arbitrary, there must be laws universally applicable, because of the universal nature of man. Laws governing human affairs, or at least some of those laws, must derive from some objective and external reality, not subject to the arbitrary will of the ruler or the people. If this was not so, then it would be impossible to make an unlawful law. Any law duly decreed by a legitimate ruling body, such as the Athenian assembly, would necessarily be lawful, yet history shows that this was obviously false. Some laws are clearly unlawful.
Proof by contradiction. “There is in fact a true law – namely, right reason – which is in accordance with nature, applies to all men, and is unchangeable and eternal.” (Cicero) Cicero successfully argued before a Roman court that one of the laws of Rome was unlawful, being contrary to natural law, creating a legal precedent that held throughout the western world for two thousand years. Although it was frequently violated, it was rarely openly rejected in the West until the twentieth century. The arguments and reasoning of the Stoics were generally accepted, but not thoroughly put into practice and therefore not vigorously tested, for over a thousand years.
During the dark ages, the knowledge of natural law, like much other ancient knowledge, was kept alive by the church. This knowledge proved very useful. Hordes of armed refugees wandered this way and that, thus tribal and customary law was often inadequate for resolving disputes. Sometimes a king would rise up and impose his people’s customary law on everyone around, but such kings came and went, and their laws and institutions faded swiftly. In those days the church persistently and rightly claimed that natural law was above customary law, and that customary law was above tribal law and the law of the kings (fiat law). Natural law was taught in the great Universities of Oxford, Salamanca, Prague, and Krakow, and in many other places. In England the theory of natural law led to the Magna Carta, the Glorious Revolution, the declaration of right, and the English Enlightenment.
It was the basis for the US revolution and the US bill of rights. For a long time people advocated natural law merely because they thought that if people pretended to believe it, it would lead to less bloodshed and other desirable consequences, and no great effort had been applied to the assumptions and methods of natural law theory. Now people started to advocate natural law because they had convincing evidence that our understanding of it was true.[iv] Thus came the English enlightenment, John Locke and Adam Smith. John Locke made a major advance to our understanding of natural law, by emphasizing the nature of man as a maker of things, and a property owning animal. This leads to a more extensive concept of natural rights than the previous discussions of natural law. From the right to self-defense comes the right to the rule of law, but from the right to property comes a multitude of like rights, such as the right to privacy “An Englishman’s home is his castle.”
Further, Locke repeatedly, in ringing words, reminded us that a ruler is legitimate so far as he upholds the law. A ruler that violates natural law is illegitimate. He has no right to be obeyed, his commands are mere force and coercion. Rulers who act lawlessly, whose laws are unlawful, are mere criminals, and should be dealt with in accordance with natural law, as applied in a state of nature, in other words they and their servants should be killed as the opportunity presents, like the dangerous animals that they are, the common enemies of all mankind. John Locke’s writings were a call to arms, an assertion of the right and duty to forcibly and violently remove illegitimate rulers and their servants.
This provided the moral and legal basis for many great revolutions, and many governments. After the American revolution the North Americans were governed more or less in accordance with natural law for one hundred and thirty years. John Locke was writing for an audience that mostly understood what natural law was, even those who disputed the existence and force of natural law knew what he was talking about, and they made valid and relevant criticisms. In the nineteenth century people started to forget what natural law was, and today he is often criticized on grounds that are irrelevant, foolish, and absurd.[v]
Greek thinkers laid the basis of natural law and developed its essential features. Heraclitus laid the basis of natural law. He found it in the rhythem of events. This he turned destiny, order and reason of the world. Nature is not just substance, but a relation, an order of things. The thought of an order of nature in conformity with law dawned as clear knowledge upon Grecian minds.[vi] This provided the basis for the Greek school of enlightenment(sophists) which developed in the 5th century B.C. The contact between nature and institution is the most characteristic work of Greek enlightenment in the formation of conceptions. It dominated the whole philosophy of the period. If there is anything universally valid, it is that which is valid by nature for all men without distinction of people and time. When nature determines is justly authorised. Nature came to be opposed to the tyranny of man. Nature is something external, outside man. It is the order of things which embodies reason.[vii]
Socrates reflected upon that element which was the decisive factor in the culture of his time. He defined virtue, the fundamental ethical conception, as insight, in turn, as knowledge of the good, the concept of good with no universal content. One of the dictates of natural law is that authority and positive law should be obeyed. However, he did not argue blind adherence to positive law. That should be subjected to the critical evaluation in the light of man’s insight.
Plato laid the foundations for much of subsequent speculation of natural law themes. According to him, Gods gave to all men in equal measure a sense of justice and of ethical reverence so that in the struggle of life they may be able to form permanent unions for mutual preservation. He found the nature of practical life in primary ethical feelings which impel men to union in society and in the State. In the ideal State of Plato, each individual is given that role for which he is best fitted by reason of his capacities. His Republic is a constructive attempt to discover the basis of justice. The administration of justice is given to the philosopher kings whose education and wisdom is such that there is no necessity to link them up with a higher law.
In his Logic, Aristotle sees the world as a totality comprising the whole of nature. Man is a part of nature in a twofold sense. On the one hand, he is a part of matter, part of the creatures of God. As such, he partakes of experience. Man is also endowed with active reason which distinguishes him from all other parts of nature. He is capable of forming his will in accordance with the insight of his reason. It is the recognition of human reason as a part of nature which provides the basis for the Stoic conception of the law of nature. The Stoics develop this principle into an ethical one. Reason governs the universe in all its parts. Man, as a part of universal nature, is governed by reason. Reason orders his faculties in such a way that he can fulfil his true nature. When man lives according to reason, he lives “naturally”. Thus, the law of nature becomes identified with a moral duty.
To the Stoics, the postulates of reason are of universal force. They are binding on all men everywhere. Men are endowed with reason, irrespective of nationality and race.
The theory of Stoics exercised great influence upon the Roman jurists and some of them paid high tribute to “natural law”. In the Roman system, the theory of natural law did not remain confined to theoretical discussions only. The Romans used natural law to transform their narrow and rigid system into a cosmopolitan one. Natural law exercised a very constructive influence on Roman law. The Romans had three divisions of law viz., jus civile, jus gentium and jus naturale. jus civile or civil law of the Romans was for Roman citizens only. On the principles of natural law, the Roman magistrates applied those rules which were common with foreign laws to foreign citizens.
The body of law which grew up in this way was called jus gentium and it became a part of Roman law. It represented the good sense and universal legal principles and conformed to natural law. Later on jus gentium and jus civile became one when Roman citizenship was extended to all except a few classes of people. The Roman lawyers did not bother about the conflict between natural law and positive law. However, there were some jurists who considered natural law as superior to positive law but the majority of the Roman jurists did not enter into this problem.[viii]
Lord Lloyd writes that conquest and commerce necessitated the development of law which could be applied to foreigners. Jus gentium, the jus civile stripped of formalities and with cosmopolitan trimmings, was the result.
Gaius wrote that all people who are governed by laws and customs applied partly their own law, partly law which is common to all mankind. The law which each people has made for himself is peculiar to that people and is called jus civile, the special law of the State, but that which natural reason has appointed for all men is in force equally among all peoples and is called jus gentium, being the law applied by all races.[ix]
Cicero wrote that law is the highest reason, implanted in nature, which commands what ought to be done and forbids the opposite. This reason when firmly fixed and fully developed in the human mind is law. Since law is a natural force, it is mind and reason of the intelligent man, the standard by which justice and injustice are measured. While divine reason is inherent in the universe, it is more or less identified with the physical ordering of the universe. Man stands highest in creation by virtue of his faculty of reasoning and his welfare is the supreme purpose of creation. As welfare is the chief objective of creation, man should spare no efforts to help others.
Cicero not only held fast to the thought of a moral world order which determines with universal validity the relation of rational beings to each other, but also thought of the subjective aspect of the question in consonance with his theory that this command of reason is innate in all human beings equally and has grown with their instinct of self- preservation. Out of this natural law, the universally valid law which is above all human caprice and change of historical life, develop both the commands of morality in general and of human society in particular.
NATURAL LAW IN THE MIDDLE AGES
Some early Church Fathers, especially those in the West, sought to incorporate natural law into Christianity. The most notable among these was Augustine of Hippo, who equated natural law with man’s prelapsarian state; as such, a life according to nature was no longer possible and men needed instead to seek salvation through the divine law and grace of Jesus Christ.
In the Twelfth Century, Gratian equated the natural law with divine law. A century later, St. Thomas Aquinas in his Summa Theologiae I-II qq. 90-106, restored Natural Law to its independent state, asserting law as the rational creature’s participation in the eternal law.[x] Yet, since human reason could not fully comprehend the Eternal law, it needed to be supplemented by revealed Divine law. (See also Biblical law in Christianity.) Meanwhile, Aquinas taught that all human or positive laws were to be judged by their conformity to the natural law. An unjust law is not a law, in the full sense of the word. It retains merely the ‘appearance’ of law insofar as it is duly constituted and enforced in the same way a just law is, but is itself a ‘perversion of law.’[xi] At this point, the natural law was not only used to pass judgment on the moral worth of various laws, but also to determine what the law said in the first place. This principle laid the seed for possible societal tension with reference to tyrants.[xii]
Throughout the Middle Ages, the theology of the Catholic Church set the tone and pattern of all speculative thought. Two vital principles animated medieval thought and those were unity and supremecy of law. Unity was derived from God and involved one faith, one Church and one Empire. The supremacy of law was not merely man-made but was conceived as a part of the unity of the universe. Catholic philosophers and theologians of the Middle Ages gave a new theory of natural law. They gave it a theological basis. Their views were logical and systematic.
The views of St. Thomas Aquinas (1224/5- 1274) may be taken as representative of the new theory. His theory has to be set in the context of his time. There was a need for stability in a world emerging from the Dark Ages. The struggle between the Church and the State was beginning and there was the need for the Church to establish its supremacy by rational argument rather than by force. It was necessary for Christendom to unite in the face of the heathen menace and a need was felt for unifying Christian philosophy. Aquinas tried to meet all the three needs. In the doctrine of Aquinas, there is a connection between means and ends. There is a relation in the nature of things between a given operation and its result. Natural phenomena have certain inevitable consequences.
Fire burns but it does not freeze. A tendency to develop in certain ways is naturally inherent in things. An acorn can only evolve into an oak and it will never evolve into a larch or pine. The appreciation of the relation between means and ends and the process of growth towards fulfilment is open only to intelligence and faculty of reason. An acorn does not think but man thinks. Man appreciates the relation between means and their ends. He also chooses for himself the ends which he wants and devises means of achieving them. A man in authority may decide that the health of society is an end worth achieving and then devise means to achieve the same and prescribe regulations for that purpose. Thus, laws consist of means of achieving ends.
The relation between an end and the method by which its fulfilment is sought is initially conceived in mind the legislator. Those who are required to conform to his direction ran also appreciate the connection by the exercise of their own reasoning faculties. According to Aquinas, law is “nothing else than an ordinance of reason for the common good, made by him who has the can of the community, and promulgated.” Man can control his own destiny to large extent but he is subject to certain basic impulses which are the impulse towards self-preservation, the impulses to reproduce the species and rear children and the impulse to improve and to take such decisions as are necessary for the attainment of higher and better things- The basic impulses point in a definite direction which is not only survival and continuity but also perfection. They are a part of human nature and show that man is also limited by nature.
The establishment of certain ends and the means of achievement originated in the reason of some superhuman legislator. That is the eternal law which is “nothing else than the plan of the divine wisdom considered as directing all the acts and motions” for the attainment of the ends. Man is free and rational and capable of acting contrary to eternal law. That law has to be promulgated to him through reason. That is natural law. There is no need of promulgating natural law to other created things as they lack the intelligence of man.
To quote Aquinas: “The natural law is nothing else but a participation of the eternal law in a rational creature.” It is the dictates revealed by reason reflecting on natural tendencies and needs. “The primary precept of the law is that good should be done and pursued and evil avoided: and on this are founded all the other precepts of the law of nature.” By reflecting on his own impulses and nature, man can decide what is good.
The nature of man is such that he is necessarily impelled to seek good in survival, continuity and perfection. He must do things to achieve them and not to frustrate them. To go against the ends is morally wrong. It is not wrong because God has forbidden the contravention of natural law. God has forbidden it because it is wrong which means contrary to reason by which God himself is bound.
According to Aquinas, mankind “ought not only to be multiplied corporeally, but also to make spiritual progress.” And so sufficient provision is made if some only attend to generation while others give themselves to the contemplation of divine things for the enrichment and salvation of the whole human race.”[xiii] Aquinas distinguished four kinds of law: eternal, natural, human and divine. Eternal law refers to divine reason, known only to God, God’s plan for the universe; man needs this, without which he would totally lack direction. Natural law is the human “participation” in the eternal law in rational creatures and is discovered by reason. Divine law is revealed in the scriptures and is Gods positive law for mankind. Human law is supported by reason and enacted for the common good. Natural law, of course, is based on “first principles”:
. . . this is the first precept of the law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based on this . . .[xiv]
Hugo Grotius (1583-1645) gave classical expression to the new foundations of natural law as well as the principles of modern international law. According to him, the property peculiar to man is his desire for society, for a life spent in peace in common with fellow- men and in correspondence with the character of his intellect. The nature of human intellect desires a peaceful society and from that are derived the principles of natural law which are independent of divine command. To quote him: “Natural law is so immutable that it cannot be changed by God himself.” These principles of reason can be deduced in two different ways. One way is by examining anything in relation to the rational and social nature of man. The second way is by examining the acceptance of those principles among the nations.
On his principles of natural law, Grotius built his system of international law. The most fundamental of his principles is pacta sunt servanda, the respect for promises given and treaties signed. The other rules of natural law are respect for other people’s property and the restitution of gain made from it, the reparation of damage caused by one’s fault and the recognition of certain things as meriting punishment.
Natural law also supplied the basis of more concrete political controversy. While Grotius stipulated the freedom of the seas as a principle of natural law, Selden maintained that natural law permitted private and public dominion over the seas. In the writings of Grotius, the idea of natural law assumed a constructive and practical function comparable to that which it did in the time of the Roman Empire. In both cases, principles partly deduced, partly observed as being of general acceptance, gave the basis. In course of time, natural law was reduced from a position of superiority over State practice to an empty formula.
According to Grotius, natural law is based on the nature of man and his inward need of living in society. Grotius called human nature as the grandmother, natural law the parent and positive law the child. Human nature impels us to desire a society, From this nature of human intellect which desires a peaceful society, are deduced the principles of natural law, which arc quite independent of divine command. Natural law is immutable and cannot be changed by God himself.[xv]
NATURAL LAW AND SOCIAL CONTRACT
The ideas of natural law were used for a very different purpose in the English Revolution of 1688, the American Declaration of Independence and the French Revolution of 1789. The Renaissance and the Reformation paved the way for the spiritual emancipation of the individual. The expansion of commerce gave economic prosperity to the new middle class which became the moving spirit in the struggle for individual emancipation. Political absolutism looked for a justification of its claim to unlimited authority over the people. The legal construction used by both sides in the political struggle was that of social contract.[xvi]
The use of social contract as a definite concept in political and legal controversy can be traced to Marsilius of Padua (1270-1343). The concept of social contract is that in the beginning men lived in a state of nature. They had neither any government nor any law. That state of nature was described by some as that of hardship and oppression while by some others as that of bliss and joy. Men entered into an agreement for the protection of their lives and property and thus society came into existence. They undertook to respect each other and live in peace.
They entered into a second agreement by which the people who had united together earlier, undertook to obey an authority and surrender the whole or a part of their freedom and rights and the authority guaranteed every one of them the protection of life, property and to a certain extent, liberty. It was in this way that the government, sovereign or the ruler came into being. There are many implications of the theory of social contract. People are the source of political power. The concept of society of these exponents of social contract theory is individualistic. The important exponents of the theory of social contract were Grotius, Hobbes, Locke and Rousseau.
Hugo Grotius used the social contract for two purposes, internally for the justification of the absolute duty of obedience of the people to the government and internationally to create a basis for legally binding and stable relations among the States. He put forward social contract as an actual fact in human history. According to him, each people had chosen the form of government they considered most suitable for themselves by means of a social contract. Once the people transferred their right of government to the ruler, they forfeited the right to control or punish the ruler howsoever bad his government may be.
Grotius denied that all government is for the sake of the governed. He vacillated on the question how far a ruler is bound by the promises made by him to his subjects. He was bound to admit that the ruler was bound by natural law which was valid even without promise and the keeping of promises is a permanent principle of natural law. Grotius was not able to explain this anomaly. His main concern was the stability and orderliness of international society. His theory of social contract served that purpose by stressing the equivalence of different forms of government established by different peoples, by freeing the ruler from any internal restriction or fetters and by stressing the absolute force of a promise once made[xvii].
Thomos Hobbes (1588-1679) was the author of two books, De Cive (1642) and The Leviathan (1651). He lived during the days of the Civil War in England and hence was convinced of the great importance of State authority which he wanted to be vested in an absolute ruler. Hobbes acknowledged the authority of natural law but he understood it in a sense different from those writers for whom natural law was superior to positive law. He shifted the emphasis from natural law as an objective order to natural right as a subjective claim based on the nature of man and prepared the way for individualism in the name of “inalienable rights”.
He still acknowledged objective rules of natural law of an immutable character but he divested them of any practical significance by depriving them of sanctions. He understood by natural law not certain ethical principles but laws of human conduct based on observation and appreciation of human nature. For him, the chief principle of natural law was the right of self-preservation. This was connected with his view of state of nature in which “men live without a common power to keep them all in awe, they are in that condition which is called war and such a war as is of every man against every man.” In the state of nature, there was perpetual and devastating warfare which threatened everyone, but natural reason dictated to man the rule of self-preservation for which he tried to escape from the state of permanent insecurity. That he did by transferring all his natural rights to the ruler whom he promised to obey unconditionally. The individual transferred the whole of his natural rights to the ruler who became an absolute ruler.
The subjects could not demand the fulfilment of any obligation by the ruler. The only condition was that the absolute ruler must keep order. Hobbes was against civil disobedience but where resistance was successful, the sovereign ceased to govern and the subjects were thrown back to their original position and then they could transfer their obedience to a new ruler. To quote Hobbes: “The obligation of subjects to the sovereign is understood to last as long and no longer than the power lasts by which he is able to protect them.”
Hobbes enumerates 19 principles of natural law but they are shorn of all power. All law is dependent upon sanction. To quote him: “Governments without the sword are but words, and of no strength to secure a man at all.” All real law is civil law. It is commanded and enforced by the sovereign. There is no distinction between State and society. There is no law between sovereign and subjects. All social and legal authority is concentrated in the sovereign. The Church is subordinated to the State. It is just like another corporation. The sovereign of Hobbes is not instituted and legitimised by any superior sanction like that of natural law or divine right. He is merely a utilitarian creation. Natural law was not a superior law.
According to Hobbes: “A law of nature (lex naturalis) is a precept or general rule found out by reason, by which man is forbidden to do that which is destructive of life, or takes away the means of preserving the same and to omit that by which he thinks it may be best preserved”. The fundamental law of nature is that every man ought to endeavour to obtain peace as far as he has hope of obtaining it. When he cannot obtain it, he can seek and use all helps and advantages of war. The second law of nature was that if others were willing to follow the same rule, man should be content with so much liberty against other men as he would allow to others against himself. The third law of nature was that men performed their covenants made. In that, law of nature was the fountain and origin of justice. According to Hobbes, injustice is nothing else than the non-performance of covenants. The nature of justice consists in the keeping of valid covenants which start with the constitution of a civil power sufficient to compel men to keep them.
According to Hobbes, the life of man in the state of nature was “solitary, poor, nasty, brutish and short”. His theory was based upon the idea of force and compulsion. To quote him: “It is men and arms that make the force and power of the law.” Natural law is little more than a fiction, ingeniously twisted to support a political dictatorship. Hobbes expressed the main precept of natural law in the form of man’s right to self-preservation. He denied to the Church the authority to interpret the law of God. He gave all power to a utilitarian secular sovereign.
Hobbes was individualist, utilitarian and absolutist and all of these aspects had great influence upon the legal and political thought of the next few centuries. From his political and legal theory emerged the modern man who is self-centred, individualistic, materialistic and irreligious in the pursuit of organised power. His individualism linked him with Locke, his utilitarianism with Bentham and Mill and his absolutism with all the theories which stand for the enhancement of the powers of the State.
John Locke (1632-1704) was the theoretician of the rising middle class which was individualistic and acquisitive and avoided conflict between ethics and profits. His ideas appealed to his generation and the following century. He restored the medieval concept of natural law insofar as he made it superior to positive law. He placed the individual in the centre and invested him with inalienable natural rights among which the right to private property was the most prominent. He used the social contract to justify government by majority which held the power in trust, with the duty to preserve individual rights whose protection was entrusted to them by individuals. Locke was the opponent of Hobbes. In place of the theory of absolutism of Hobbes, he gave the theory of the inalienable rights of individuals. If Hobbes stood for authority, Locke stood for liberty[xviii].
Locke wrote after the Glorious Revolution of 1688 and justified the same. He adopted the individualistic premises of Hobbes but stated those values in terms of inalienable natural rights. The individual had a natural inborn right to “life, liberty and estate”. He gave his chief attention to the right of private property. His state of nature is Paradise Lost. It was a state “of peace, goodwill, mutual assistance and preservation”. In that state of nature, men had all the rights which nature could give them. What they lacked was organisation. The right of property existed prior to and independent of any social contract whose function was to preserve and protect not only the right to property but also other natural rights.
The social contract of Locke performs two functions. By one contract, men agreed to unite into one political society and thereby create the commonwealth. A majority agreement is identical with an act of the whole society. The majority vote can take away property rights and other inalienable rights. After that, the majority vested its power in a government whose function is the protection of the individual. So long as the government is faithful to its pledge, it cannot be deprived of its power.
Locke appears to have gone back to a state of nature which was a state of peace, goodwill, mutual assistance and preservation. In that state of nature, all were equal and independent. No one was supposed “to harm another in his life, health, liberty or possessions; for men being all the workmanship of one omnipotent and infinitely wise maker, all the servants of one sovereign master, sent into the world by His order and about his business.” In that state of nature, nobody could transfer to another more power than he himself had. Nobody had an absolute and arbitrary power over himself or over any other person, to destroy his own life or take away the life or property of another[xix].
A man cannot subject himself to the arbitrary power of another. He has no arbitrary power over the life, liberty or possessions of another. The limited power is given to the commonwealth for the good of society. The State can never have a right to destroy, enslave or impoverish the subjects. The law of nature stands as an eternal rule to all men, legislators and others. The rules which they enact for others must be conformable to the law of nature. The fundamental law of nature is the preservation of mankind and no human sanction can be good or valid against it.
The legal theory of Locke gave theoretical form to the reaction against absolutism and to the preparation of parliamentary democracy. He put emphasis upon the inalienable rights of the emancipated individual. He had great influence on the American Revolution and the French Revolution. The combination of noble ideals and acquisitiveness, natural law philosophy and protection of vested interests in American history owes much to Locke.
Rousseau (1712-88) gave his theory of social contract in his two books, namely, The Social Contract and Emile. According to him, the state of nature was an era of idyllic felicity. Reason did not guide the actions of individuals who were moved by their emotions. To quote Rousseau: “Man by nature never thinks and he who thinks is a corrupt creature.” Every individual had unlimited liberty. There was no private property, no competition and no jealousy. Every individual lived the free life of a savage. He knew neither right nor wrong and was away from all notions of virtue and vice. There was innocence everywhere. However, this state of affairs did not last long. The increase in population and the dawn of reason were mainly responsible for the change. Simplicity and happiness disappeared. People started thinking in terms of mine and thine.
The arts of agriculture and metallurgy were discovered and in the application of them man needed the help of others. Cooperation revealed and emphasized the diversity of man’s talents and the inevitable result followed. The stronger man did the greater amount of work and the craftier got more of the product. Thus appeared the differences between the rich and the poor which was the prolific source of all other sources of inequality. Life became intolerable. There were wars and murders everywhere. The problem was “to find a form of association which protects with the whole common force the person and property of each associate, and in virtue of which everyone, while uniting himself to all, remains as before.” The problem was solved through a social contract.
By a social contract, everyone surrendered to the community all his rights and the result was that the community became sovereign. Even after the contract, the individual remained as free as he was before. To quote Rousseau: “Since each gives himself up to all, he gives himself up to no one; and as there is acquired over every associate the same right that is given up himself, there is gained the equivalent of what is lost, with greater power to preserve what is left.” Law is the expression of the general will. Sovereignty can never be alienated or represented or divided. The sovereign can be represented only by himself. The government is not the same thing as the sovereign. The government is not a party to the contract.
The government was created in this manner. First of all a law was passed by the sovereign to the effect that there shall be a government and after that, the governors were appointed. Rousseau identifies sovereignty with the general will or the common interests of the that of community. His sovereignty is infallible, indivisible, unrepresented and illimitable. It is unrepresentative because it lies in the general will which can not be represented. The sovereignty of the state is absolute like that of Hobbes. The only difference is that while Hobbes assigns sovereignty to the head of the state, Rosseau gives it to the whole community.
REVIVAL OF NATURAL LAW THEORIES
Towards the end of the 19th century, there was a revival of natural law theories. That was due to many reasons. There was a reaction against the 19th century legal theories which had exaggerated the importance of positive law. It was realized that abstract thinking or a priory assumptions were futile. The pure positivist approach failed to solve the problems created by the new social conditions. The material progress and its effect on society made the thinkers look for some values and standards. Western society was shattered by the first world war and there was a search for an ideal of justice. Science began to become doubtful about itself and the certainty of scientific facts.
The youth rebelled against the self- satisfaction of the bourgeoisie, money worship and modern life. Social reformers and socialists attacked inequalities in society. Lawyers began to feel that law was not simply a matter of applying statutes or precedent to any given case or situation by means of pure logic. The unsolved problems demanded a guide higher than positive law. As the faith of certainty wavered, idealistic philosophy revived. There was a search for the ideals of justice. The result was the revival of natural justice. The emergence of ideologies which contributed to the revival of natural law theories. The new approach of natural law is concerned with practicle problems and not abstract ideas. It tries to harmonise natural law with the variability of human ideals.[xx]
According to him, the law of nature was deduced from the nature of man as it reveals itself in the basic inclinations of that nature under the control of reason. As human nature is identical in people everywhere, the precepts of natural law are universal in spite of historical. Geographical, cultural and other such variations. One of the precepts of natural law is concerned with the good of society which is the purpose of state and law. The state law “is the sole true law”. Laws may be expressed variously in the form of statutes, precedents or customs but they are general regulations of conduct, not of conscience.
Ordinarily they are obeyed and when they are not obeyed, compulsion under the authority of the state has to be employed. Laws are directed to conduct and not conscience. There is a moral duty to obey those positive laws which conform to the natural law principles of promoting the common weal. If a law fails to conform to that principle, it is not morally binding because “everybody admits that civil laws contrary to natural law are bad laws and even that they do not answer to the concept of a law”. If they are not laws, there is no question of moral binding. In order to fulfill the common good, laws have to be adapted to the needs and ethos of the particular community.[xxi]
The view of Prof. John Rawls (1921) of the Harvard University is that society is a more or less self-sufficient association of persons who in their mutual relations recognise as binding certain rules of conduct specifying a system of cooperation. Principles of social justice are necessary for making a rational choice between various available alternative systems. Prof. Rawls arrives at his theory in this manner, Fairness results from reasoned prudence. Principles of justice, dictated by prudence are those which hypothetical rational persons would choose in a hypothetical “original position” of equality.
The insistence’ on prudence excludes gamblers from participating in the “original position”, but will bring in, on the whole, these who are conservatively inclined. People in the “original position” are assumed to know certain things, e.g., general psychology and the social sciences. This is designed to exclude personal self-interest when choosing the “basic principles of justice” so as to ensure their generality and validity. What is needed is a form of justice which will benefit everyone, i.e., the disinterested individual’s conception of the common good.
The Basic Principles of Justice are generalised means of securing generalised wants, “primary social goods” which include basic liberties, opportunity, power and a minimum of wealth.
The First Principle of Justice is: “Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.” The basic liberties include equal liberty of thought and conscience, equal participation in political decision-making and the rule of law which safeguards the person and his self-respect.
The Second Principle is: “Social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, consistent with the just savings principle and (b) attached to offices and positions open to all under conditions of fair equality of opportunity.” The “just savings principle” is designed to secure justice between generations and is described as follows: “Each generation must not only preserve the gains of culture and civilisation, and maintain intact those just institutions that have been established, but it must also put aside in each period of time a suitable amount of real capital accumulation.”
With the aid of these principles, Prof. Rawls tries to establish a just basic structure. There has to be a constitutional convention to settle a constitution and procedures that are most likely to lead to a just and effective order. After that comes legislation and its application to particular cases. Prof. Rawls claims that in this way the basic principles will yield a just arrangement of social and economic institutions[xxii].
Prof. Lon L. Fuller[xxiii] (1902) is regarded as the leading contemporary natural law lawyer. He does not contend that the rules of a legal system must conform to any substantive requirements of morality or any other external standard. He maintains the need for rules of law to comply with “internal morality.” Initially, he draws a distinction between morality of duty and morality of aspiration. The former corresponds to an external morality of law. It consists in those fundamental rules without which society cannot exist. He sees law as a “purposive activity.”
The morality of aspiration exhorts mankind to strive for ideals and fulfil their potentialities in a Platonic way. He gives eight typical ideals or formal virtues to which a legal system should strive viz., generality, promulgation, absence of retroactive legislation and certainly no abuse of retrospective legislation, no contradictory rules, congruence between rules as announced and their actual administration, clarity, avoidance of frequent changes and the absence of laws requiring the impossible. These principles of legality are not basic conditions which every system necessarily fulfils, but constant pole stars guiding his progress. The greater its success, the more fully legal such a system is.
Fuller is critical of the assertion of Dworkin that while baldness is a matter of degree, a line can be drawn between law and non-law. To quote Fuller: “Law does not just fade away, but goes out with a bang.” Fuller does not develop the relationship between the form in which legal rules are expressed and their content. The Nazi legal system was faithful, with one possible exception, to the canons of Fuller and yet it was able to promulgate the Nuremberg racial laws which were utterly offensive to all human values. Fuller must surely believe that form has a direct bearing on content as otherwise his principles would be nothing more than the tools of an efficient craftsman.
Natural law contributed a pivotal role to the legal thought. It really widened the scope for the development of jurisprudence. The natural law philosophy occupies an important place in the realm of politics, law, religion and ethics from the earliest times.[xxiv] It has played the role of harmonizing, synthesizing and promoting peace and justice in different periods and protected public against injustice, tyranny and misrule[xxv]. The natural law theory reflects a perpetual quest for absolute justice.[xxvi]
At a purely factual standpoint the history of the natural-law idea teaches one thing with the utmost clearness: the natural law is an imperishable possession of the human mind. In no period has it wholly died out. At least since the advent of Christianity, it has always had a home in the philosophia perennis whenever it appeared to be temporarily banished from the secular wisdom of the jurists. Even in jurisprudence it has never entirely lost its efficacy. No one has better established this fact than Bergbohm, who was tireless in uncovering traces of the natural law. He discovered natural law everywhere, even in the thinking of the strictest positivists of the late nineteenth century. Ironically enough, Bergbohm, who had set out to banish natural law once and for all from jurisprudence, lived to hear Joseph Kohler say of his formidable attack on the natural law that he had merely demonstrated the utter untenableness of legal positivism, i.e., the complete untenableness of the doctrine directly opposed to the natural law. Indeed, even in Bergbohm’s own lifetime a distinct revival of the natural-law doctrine was observable.
But history teaches still another lesson. Whenever the sole possible foundation of the natural law vanished on account of doubts about metaphysics, not only did voluntarist ideas bring positivism to the fore, but rationalism itself discredited the natural law through its passion for deductions uncontrolled by being. For this abuse of deduction, together with the resultant absurdities produced a skeptical attitude toward the idea of natural law.
The natural law contains the necessary structural laws of societies. Hence also the close relationship between natural law and social philosophy: natural law is social philosophy for the practical reason. A science of pure law is consequently unsatisfying. For law is at bottom founded on the essentially teleological character of social being, and in practice its concrete contents are always social life which requires the form of law. But this is not to assert that sociologism is alone warranted in law. For the sociological school of law is indeed able to explain the origin and effect of positive legal norms from the actual sociological facts, but it cannot explain law itself. The two schools of thought constitute a positivist cleavage of the natural-law doctrine. Natural law, of course, implies an ultimate unity of essential being and oughtness.
Formatted 1st March 2019.
[ii] http://www.natural-law-party.org.uk/misc/what-is-natural-law.htm, last visited on 24 -10-2012.
[iii] http://inkonet.net/downloads/Natual_Law_Vol31_No1.pdf last visited on 26- 10- 2012.
[vi] V.D.Mahajan,Jurisprudence & Legal Theory,Eastern Book Company, Lucknow,2012, 5th edn, p.596.
[vii] V.D.Mahajan,Jurisprudence & Legal Theory,Eastern Book Company, Lucknow,2012, 5th edn, p.597.
[viii] V.D.Mahajan,Jurisprudence & Legal Theory,Eastern Book Company, Lucknow,2012, 5th edn, p.598.
[xi] Summa Theologicae, Q. 95, A. 2.
[xii] Burns, Tony (2000). “Aquinas’s Two Doctrines of Natural Law”. Political Studies 48: 929–946
[xiii] V.D.Mahajan,Jurisprudence & Legal Theory,Eastern Book Company, Lucknow,2012, 5th edn, p.602.
[xv] Supra, f.n.14.
[xvi] V.D.Mahajan,Jurisprudence & Legal Theory,Eastern Book Company, Lucknow,2012, 5th edn, p.604.
[xvii] Dr.,N.V.Paranjape, Jurisprudence and Legal theory, central law agency, Allahabad,2011, 6th edn.,p.108.
[xviii] V.D.Mahajan,Jurisprudence & Legal Theory,Eastern Book Company, Lucknow,2012, 5th edn, p.607.
[xx] V.D.Mahajan,Jurisprudence & Legal Theory,Eastern Book Company, Lucknow,2012, 5th edn, p.618.
[xxii] V.D.Mahajan,Jurisprudence & Legal Theory,Eastern Book Company, Lucknow,2012, 5th edn, p.626.
[xxiii] Finnis : Natural law and Natural Rights pp 276-277.
[xxiv] Dr.,N.V.Paranjape, Jurisprudence and Legal theory, central law agency, Allahabad,2011, 6th edn.,p.100
[xxvi] Hall J: Foundation of Jurisprudence; chapter 2.