The concept of natural law has undergone several changes throughout the course of history. It has supported the emergence of several ideologies which have played a prominent role in world history.
Natural law thinking is an important tool in political and legal ideology in modern times. The term ‘natural law’ essentially refers to the legal system laid down in nature since the dawn of life on the planet. Unlike positive law, natural law does not require a “politically superior” authority to formulate laws.
Natural rights are conferred and protected by God himself. Lord Llyod describes natural law as a mere law of self-preservation or an operative law of nature which constrains man to behave in a certain way.
According to Friedmann, the history of natural law school is a “tale of the search of mankind for absolute justice and its failure”. Natural law has always appeared, in some form or other, throughout the various ages, as an idea of law higher than positive law. With the changing socio-political conditions, the idea of natural law is also undergoing change.
However, one aspect that appears to be permanent is the appearance of nature as an ideal higher than that of positive law. Natural law has helped in the transformation of the old civil law of Romans. It has validated the idea of international law.
It has been used as a weapon in the fight against absolutism. At different times, the natural law school has been put to different uses. The history of natural law school can be traced as follows:
The Greeks are said to have laid the foundations of the natural law school. Heraclitus observed a certain rhythm in events and termed it as “destiny, order and reason of the world.” With this, he laid down the basis of natural law.
Nature, according to the Greeks, refers to a certain order in things. They identified the relation between such an order and law. This thinking formed the basis for the Greek school of enlightenment in the 5th century B.C. It went on to dominate the philosophical thinking of those times.
Socrates identified that particular element of natural law which calls for adherence to positive law. However, he argued that natural law does not demand blind adherence to positive law. It must be critically evaluated by men, using their insight.
This particular element of natural law was a climacteric factor during his age.
Plato’s ideas mainly revolved around the concept of natural justice. According to him, each and every individual is given a certain sense of justice by divine power. Such sense of justice and ethical reverence has been given to him to facilitate his survival by forming unions with other individuals.
An ideal state is one where a person is given a role which justifies the capabilities that he possesses. His Republic can be said to be a product of his pursuit for the basis of justice.
Aristotle views the world as a composition of nature. According to him, man is a part of the creation of God. Man is endowed with the gift of reason which distinguishes him from other creatures created by God. He argues that when a man lives in accordance with “reason”, it can be said that he is living “naturally”.
The Romans did not confine natural law to theoretical considerations. Instead, they explored its utility by applying its concepts practically. Romans used principles of natural law to transform their rigid legal system into a cosmopolitan one.
Roman Legal system can be said to have three divisions- jus civile, jus gentium and jus natural. Jus civile refers to Roman civil law which applied to Roman citizens only. Jus gentium refers to certain principles of natural law which were universally accepted and were, therefore, applicable to foreign citizens as well.
The Roman jurists did not deliberate upon the conflict between natural law and positive law and did not decide as to which of them is higher.
The Hindu legal system is one of the most ancient legal systems of the world. It is based on the concept and philosophy of “Dharma”. The Hindu concept of dharma might appear to be similar to the natural law school of jurisprudence.
Dharma refers to the order set by nature and the adherence of human beings to such natural order. Dharma includes the concept of Nyaya or justice. The term natural order implies to the cosmic order- the law which sustains the entire universe.
The Hindus believed that dharma ensures that humans exist in harmony with the entire cosmos or universe.
NATURAL LAW AND SOCIAL CONTRACT
The political, social and economic developments in medieval Europe opened upon an entirely fresh perspective towards the principles of natural law. The idea of natural law was used to support that of the social contract.
The social contract theory argues that ‘state’ is nothing but a product of an agreement entered into by individuals in order to protect their life, liberty and property.
The interrelation between natural law and social contract theory can be found in the works of the following chief exponents of the social contract theory:
Grotius was of the opinion that the social contract theory is a historical fact. He argued that by entering into a social contract, the people are forfeiting their right to punish the ruler howsoever bad his government may be. He further went on to state that the ruler was also bound by basic principles of natural law by virtue of its existence even before the social contract was entered into by the people and the ruler.
Hobbes believed in the existence of natural law. However, his approach towards its study was completely different from those who regarded the idea of natural law as higher to that of positive law. He expounded upon the principles of natural law in the form of natural rights possessed by each and every individual. He recognized these rights as “inalienable”.
He recognized all the rights related to self-preservation of a human being as natural rights. He further went on to say that individuals are always in the fear of their rights being violated or unlawfully taken away by another individual.
Thus, in order to remove such insecurities, the rights were vested into an entity called the State which was tasked with protecting and preserving the natural rights of its citizens. This is how Hobbes beautifully synthesized the concepts of natural law and the social contract.
Locke too recognized the existence of certain inalienable natural rights. He categorized them as “life, liberty and estate”. However, he is said to be an opponent of Hobbes for while Hobbes’s social contract is based on absolutism, Locke’s social contract is based upon liberalism.
According to him, individuals came together to constitute an entity called State in order to protect the three inalienable natural rights, namely, the right to life, liberty and property. Social justice, according to him, referred to the protection of life and economic rights of an individual by the State.
A society can be said to be fair and just only if it protects the economic interests of the people. His idea of justice stemmed from the common belief of classical liberals that private property is the source of liberty and that it also ensures the effective protection of such liberty.
According to Rousseau, “Man by nature never thinks and he who thinks is a corrupt creature.” He believed that the state of nature was an idyllic state wherein man did not reason things out and lived in absolute liberty with a free mind.
Slowly, mischief crept into the human mind and crimes like theft and murder started taking place. Thus, in order to protect natural rights, the individuals came together to constitute a body.
Through the social contract, everyone surrendered their rights to a body known as the State whose primary function was to protect the rights that have been surrendered. According to him, an individual cannot be oppressed by a State since he himself is a member of it.
Kant made a sharp distinction between natural rights and acquired rights and recognized only one natural right: the right to freedom. However, the same also had one limitation; that it must harmoniously coexist with the right to freedom of other individuals.
The decline of natural law theories took place in the 18th Century. With the advancement of empirical methods of study and scientific behavioralism, natural law theories were denounced primarily because its source was said to be a “divine entity”.
Montesquieu and Hume attacked some of the core beliefs of natural law such as the element of reason present inherently present in all human beings. Hume went on to establish that the element believed to be reason by natural law theorists is, in fact, confusion.
Bentham and Austin mercilessly criticized the natural law school as, “simple nonsense; natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts.”
The revival of natural law theories began towards the end of the 19th Century. It came up as a reaction to positivist legal theories of the 19th Century. The First World War shattered several ideals of the western societies and it was realized that positive law alone is incapable of solving all problems in the new social order.
The emergence of ideologies such as Marxism and Fascism and their counter ideologies led to the revival of natural law theories. The revived natural law theories took analytical, historical as well as sociological approaches into consideration. Instead of formulating abstract ideas, it took practical problems into consideration and concentrated upon relativism.
The concept of natural law has undergone several changes throughout the course of history. It has supported the emergence of several ideologies which have played a prominent role in world history. In conclusion, it can be said that the natural law school has, with its various theories, greatly contributed to the overall development of law.
- V. D. Mahajan, ‘Jurisprudence and Legal Theory’, Fifth Edition, Eastern Book Company.
- W. Friedmann, ‘Legal Theory’, Fifth Edition, Sweet & Maxwell (South Asian Edition).