JURISPRUDENCE

ON
NATURAL LAW SCHOOL
 TABLE OF CONTENT

INTRODUCTION………………………………………………….........................................3

CHARACTERISTICS OF NATURAL LAW….………........................………..............……4

DIVISION OF NATURAL LAW………….......................................................…...................6

APPLICATION OF NATURAL LAW THEORY….…….....................……….……….….....11

CONCLUSION………………...….................…......................................................................12

REFERENCES……………………………………….........................…………………..........13
 INTRODUCTION

Natural law (School of Jurisprudence)

Natural law is known as a higher law or the law of nature which has been continually dominating
the entire basis of politics, Law, Religion and social philosophy. Natural law is said to be these
sets of unwritten law which contains the principles of ought as revealed by the nature of man or
reason or derived from God. In common understanding, the natural school of law is recognized
as the law out of nature, divine law, or the law of nature that is rampant and eternal. At varying
points of history, different definitions have been given and while it is made by man, it is found in
the essence of a person. It is motivated mainly by faith. The fundamental premise of this
approach is that there is a higher morality-based law by which it is possible to check the
feasibility of human law. There is an assumption that some moral laws exist that can never be
contradicted without losing their moral or legal structure. It's not law if it isn't moral. This school
of law establishes an integral partnership around law and morality. The moral or ethical school is
primarily concerned with the connection of law to certain principles that law is intended to attain.
It seeks to research the reason for which a specific law has been implemented. Its historical or
intellectual substance is not associated with it.

Natural law has different eclectic thought. It can be classified as ancient natural law; dark period;
medieval period; social contract period; enlightenment period; and revival period. Under ancient
natural law, there are the theories of Greek and Roman philosophers whereas Dark period is
represented by St. Thomas Augustine; medieval period is embodied by St. Thomas Aquinas;
classical period is exemplified by distinctive social contract theories of Hobbes, Locke and
Rousseau; enlightment period is epitomized by Kant; downfall period is pictured by emergence
of positive school and revival period is symbolized by Stammler, Finnis and Fuller. Finally,
HLA Hart also accepted minimum content of natural law not as a criterion of validity of positive
law but as a supportive qualification of positive law.1 Additionally, destiny, order and reason are
the part of natural law for Heraclitus, Socrates rejects manmade law and accepts afterlife law of
1
Sullivan, J. J. (1900). The Study of the Natural Law. The American Law Register (1898-1907), 48(9), 522–542.
https://doi.org/10.2307/3306537
God, Plato supports philosopher King and harmony of various spoons, and Aristotle holds on
local justice with distributive and corrective justice. Even in ancient natural law, there were
Sophist and Stoics. Sophists advocated positive philosophy whereas Stoics championed natural
philosophy with perfections. Cicero argues that too many laws exploit the justice. During dark
period, there was conflict between Church and State. St. Augustine took the side of Church law
whereas in medieval period St. Thomas Aquinas trusts natural law and man-made law in parallel.
In social contract theory as a movement of renaissance, Hobbes supports absolute government,
Locke embraces limited government and Rousseau carries general will of people. Kant favors
transcendental aspect of law and individual freedom as methodical approach. After the lesson
learned from downfall of natural law, Stammler props law as the variable content, Finnis adapts
common goods and Fuller holds up inner and outer morality. Finally, HLA Hart, a positivist
philosopher, welcomes minimum content of natural law as a subsidiary part of positive law. 2

Characteristics of natural law

Despite having various interpretations of the terminology, natural law as a concept has been
considered an ideal law source. The following are the characteristics of the natural law:

 The main characteristic of natural law is that it follows an empirical method. It means
that the principles of natural law follow the idea of reaching to a conclusion after making
a proper enquiry or analysis about the subject matter instead of just accepting the
conclusion without any substantiation.

 Natural law is universal in nature and is based upon moral ideas.

 Natural law is dynamic in nature and thus its principal changes according to the needs
and requirements of society.

 It provides a common base of legal philosophy and ethical jurisprudence based upon
justice, morality, reason and ethics.

2
Acharya, Suman and Acharya, Suman, Natural School; Jurisprudence of Law of Nature (September 22, 2019).
Available at SSRN: https://ssrn.com/abstract=3458069 or http://dx.doi.org/10.2139/ssrn.3458069
  The principle of ‘due process of law’ and ‘rule of law’ in the USA, England and India
respectively are based upon the philosophy of natural law.

 The origin of the basic rights of an individual and the development of human rights
jurisprudence can be traced back to the philosophy of natural law in the 19th century.

Natural law is a philosophy of law that forces on the law of nature. This school of jurisprudence
represents the belief that they are inherent laws that is common to all societies.
It is also known as the moral law Divine law, the law of God, law of Reason, law of nature,
Universal law and unwritten law.The school of thought tells us that the law is rational and
reasonable. Natural law proposes that laws are a logical progression from morals. Therefore,
actions that are considered to be morally wrong will be against the law.
The sources of Natural law were that-
 God
 Nature
 Reasons

Division of Natural Law

Natural law can be broadly divided into four classes:

1. Ancient theories
2. Medieval theories
3. Renaissance theories
4. Modern theories

Greek period

The main authors of Greek period are as follows

Heraclites (530-470 B.C)
The foundation of Natural law philosophy was by the Heraclites and it also gives three aspects_
unlimited goals, stages and reason are important for the natural law.

Socrates (470-399)
According to Socrates “Law is a product of correct reasoning”1. ‘Human insight’ that a man has
capacity to distinguish between good and bad and is able to appreciate the moral values. This
human ‘insight’ is the basis to judge the law. In his concept of natural law man has his own
insight which makes him know of the things whether they are good or bad, it is this insight
according to him by which a man is able to inculcate the moral values in him, the only way to
judge the basis of law according to Socrates is man’s insight. Through his theory, Socrates
wanted to ensure peace and stability in the region which was one of the principle demands of that
time.
Aristotle’s view on Natural Law
Aristotle’s concept of natural law is different from that of Socrates, he divides the life of man in
2 parts, first, he says that man is the creature which is created by God and second, he possess the
quality of reason by which he can develop his own will. It is this reason through which one can
discover the principle of natural justice. Aristotle is considered to be the founding father of
natural law school and gave this theory a very solid ground so that it could develop naturally.

Roman period

The Natural law philosophy found on expression in the Roman legal system through the division
of Roman law into three distinct divisions _ jus civil, jus gentiam and jus natural. It also gives
natural law is equal to universal law and the code of gaudier also.

Stoics view on Natural Law

Stoics was inspired by Aristotle’s theory and based on Aristotle’s theory developed his own
theory of natural law but made some key changes and made it more ethical. According to him,
the world is governed by reason. Man’s reason is also a part of this world, therefore when he
lives according to reason he lives according to nature or lives naturally. One of the duties of man
is to obey the law of nature as according to Stoics law of nature is binding on everyone and
positive law must conform to the natural law.

Medieval Theories
Aquinas

Catholic philosophers and theologians moved away from the orthodox interpretation of natural
law and gave a more logical and systematic theory of natural law. Thomas Aquinas defined law
as the obedience of reason for the common good made by him who has the care of the
community and promulgated. He divided the law into four stages.

1. Law of God
2. Natural law
3. Divine law
4. Human laws
Natural law is that part which reveals itself in natural reason. This is applied by human beings to
govern their affairs and relations. According to Aquinas positive law must conform to natural
law, positive law is valid only to the extent to which it is compatible with natural law.

Merits of Aquinas theory

Thomas Aquinas perfectly blended Aristotle’s theory with that of Christian faith and built a very
elastic and logical theory of natural law. He pleaded for establishing the authority of the church
over the state, according to him, even the sovereign has limited powers. He identified natural law
with reason, gave sanctity to the social and political organization and pleaded hard for preserving
social stability. Catholic modern jurist has built upon the theory of Aquinas but have modified
his theory according to the changing needs and circumstances.

Renaissance Theories

Introduction
This period saw major changes in all aspects of knowledge, this period was marked by the
emergence of new ideas, new branches of knowledge and discoveries of science shattered the
foundation of established values. Secondly, the developments in the field of commerce led to the
emergence of new classes that wanted more protection from the states. It gave birth to the
concept of nationalism. All these factors together overthrew the dominance of the church. New
theories supporting the sovereignty of the state started coming up. The reason was the foundation
stone of all these theories. The natural law theories of this age also have some characteristics.
This theory proceeds with a belief that a social contract is the basis of society.
The main authors of Renaissance period are as follows: -

Hugo Grotius (1583-1645)

It is known as father of international law. Grotius built his legal theory on ‘Social Contract’.4 His
view in brief is that political society rest on a ‘social contract’ It is the duty of the sovereign to
safeguard the citizens because the form was given power only for that purpose.

Thomas Hobbes (1558-1679)

It was a supporter of absolute power of the ruler and subjects had no right against the sovereign.

John Locke (1632- 1704)

John Locke too recognized the existence of certain inalienable natural rights. He categorized
them as ‘’life, liberty and estate (property) Locke’s social contract is based upon liberalism.
Rousseau (1712- 1778)
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 where in man did not reason things out
and lived in absolute liberty with the free mind.

Immanuel Kant (1724-1804)

He emphasized that the basis of social contract was ‘reason’ but Kant gave a sharp distinction
between natural law rights and acquired rights and recognized only one natural right that is the
right to freedom.

Modern period
The modern period is further divided into two that is:-

19th century unfavorable to natural law.

The decline of natural law theories took place in the 18th- 19th Century with the advancement of
empirical methods of study and scientific behavior. Natural law theories were denounced
primarily because its source was said to be a divine entity. The profounder Austin rejected
Natural law on the ground that it was ambiguous and misleading and mercilessly criticized the
natural law school as “simple nonsense, natural and imprescriptible right rhetorical nonsense
upon stilts.”

20th century the Revival of Natural

Towards the end of the 19th century, a revival of the natural law theories took place. It was due
to many reasons: -
 The reaction against 19th-century legal theories which had exaggerated the importance of
‘positive law’ was due and theories which over emphasized positivism failed to satisfy
the aspiration of the people because of their refused to accept morality and reason as an
element of law.
 Secondly, it was realized that abstract thinking or a prior’s assumption were not
completely futile.
  Thirdly, the impact of materialism on society and the changed socio-political condition
compelled the 20th-century legal thinker to look for some value-oriented ideology which
could prevent general moral degradation of the people.

The main authors of the 19th century the Revival of natural law are as follows: -

Rudolf Stammler
Stammler defined law as “species of will others regarding self-authoritative and inviolable for
him a just law was the highest expression of man.”

Kohler
Kohler defines law as “the standard of conduct which in consequence of the inner impulse that
urges upon men towards a reasonable from of life, emanates from the whole and is force up on
the individual”

HLA Hart
Hart, attempted to restate a national law position from a semi- sociological point of view. Hart
points out that there are certain substantive rules which are essential if human beings are live
continuously together in close proximity. “These simple facts constitute a case of indisputable
truth in the doctrines of natural law”.

The natural law theory also suffers from the following weaknesses:

 The aspect of the theory that includes moral obligation is not always in consonance of the
needs of society. There should be the existence of some restrictions and differentiation.
 The concept of morality is not stagnant; it differs from place to place. It differs as per the
conscience of an individual or a group. Therefore, it is inappropriate to say that the
natural law theory is universal in nature.
 The principles of morality though differ with change in places but remain stagnant with
the change in time. On the other hand, the law requires change over a period of time as
per the requirements of society.
  Disputes that involve legal aspects can be challenged in court but a moral conflict cannot
be resolved via judicial scrutiny. Even if it is challenged in a court of law, there are no set
of guidelines that govern the concept of the morality of an individual.

Application of Natural Law theory

If one analysis the Judgment, one would find a reference to Locke’s theory whereby the natural
right of men such as the right to life, liberty and property remained with him, so in the Maneka
Gandhi case also the Natural law theory principle could be evolved.

Case 2: - Indian express newspaper v. Union of India

In this case, the theory of Rousseau has been applied, the Rousseau’s theory of freedom and
liberty was said to be the natural right of every citizen by the Supreme Court which also been
conferred upon under Article 19.

Minerva Mills v. Union of India, the apex court gave a new dimension to the principles of
natural law by the postulation of new ideals and values in order to strengthen the cause of
democracy. The Hon’ble Court developed the concept of individual liberty and social justice
based on the principles of natural law in the present case.

Conclusion
An exclusive study of the theories of Natural Law reveals one thing that the concept of Natural
Law has changed from time to time. It has been used to support almost every ideology whether it
is absolutism or individualism. It has also inspired various revolutions; natural law has also
influenced greatly the development of positive law. A study of law would be incomplete if it
fails to meet the ends of it, Natural Law theories focused on to achieve the ends of the law.
Therefore, it could be said that Natural law principles have been embodied in the legal system of
almost every country. The aim of the incorporation of the natural law theory in the legal system
of our country was two-fold. The primary reason for its inclusion is the existence of its traces in
the ancient history and culture of India. The principles of natural law are governed by the
mythological and ancient concept of ‘Dharma’. The secondary reason for its inclusion is that it is
impossible to predict every situation of the future and incorporate legislation for the same. The
inclusion of the principles of the natural law in the legislation of the country provides liberty to
the judicial, quasi-judicial and administrative tribunals to reach to decisions without being
irrational or arbitrary or causing injustice to any individual of the society.
The principles of natural law are based upon the morality and good conscience of the person.
Though the decisions based upon one’s beliefs of morality and good conscience cannot be
challenged in a court of law but if such moral beliefs are against the social good, it negates the
purpose of the theory.

REFERENCES
 George W. Constable, What Does Natural Law Jurisprudence Offer?, 4 Cath. U. L. Rev. 1
(1954).
 Jurisprudence, fifth edition by RWN Dias
 Jurisprudence and legal theory by SR Myneni
 Jurisprudence and legal theory, fifth edition by VD Mahajans
 The Constitution of India by MP Jain
 The Constitution of India, Bare act 2019
 Acharya, Suman and Acharya, Suman, Natural School; Jurisprudence of Law of Nature
(September 22, 2019). Available at
SSRN: https://ssrn.com/abstract=3458069 or http://dx.doi.org/10.2139/ssrn.3458069