Q.12. Critically examine the revival of natural law theories in modern era.
Ans. Nineteenth Century Hostility Towards. Natural Law– David Hume rejected the theory of natural law alleging that it was vague, obscure and contrary to empirical approach to law. Thus, he destroyed, the theoretical basis of natural law by his analytical positivism. The evil effects of individualism gave way to the new ideology of collectivism. The theory propounded by the great French philosopher August Compte further struck a severe blow to the dwindling natural law. He denounced natural law theory as false, non-scientific and based on supernatural beliefs
The emerging trend of recognising the importance of historical school which considered law as a product of people’s conscience, brought further decline of natural law. The roots of natural law lay in precepts like morality justice, reason etc, which the positivists denouned as being unreal, unhistorical and non scientific.
Twentieth Century Revival of Natural Law: The nineteenth century legal theories which over-emphasised positivism failed to satisfy the aspirations of the people because of their refusal to accept morality and ‘reason’ as elements of law. It was realised that exaggerated importance to historical, approach giving undue significance to cultural and social characters of legal-system had given rise to facism in Italy arid hazism in Germany. The impact of materialism on the society and The changed socio-political conditions compelled the twentieth century legal thinkers to look for some value-oriented ideology which could prevent general moral degradation of the people. The world War I further shattered the western society and there was a search for a value-conscious legal system. All these factors cumulatively led to revival of of natural law theory in its modified form different from the earlier one. The new approach was obviously concerned with the practical problems of the society and not with abstract ideas. The main exponents of the new revived natural law were Rudolf Stammler, Prof. Rawls, Kohler and others.
Rudolf Stammler (1856-1938) a Professor of Roman law in various universities of Germany. He defined law as, ‘species of will, other regarding, self-authoritative and inviolable”. For him, a just law was the highest expression of man’s social life and aims at preservation of freedom of individuals.
According to him, the two fundamental principles necessary for a just law were :
(i) principle of respect, and
(ii) the principle of community participation.
With a view to distinguishing the new revived natural law from the old one, he called the former as ‘natural law with variable content’. According to him, law of nature means ‘just law’ which harmonises the purposes in the society. The purpose of law is not to protect the will of one but to unify the purposes of all.
Professor Rawls made significant contribution to the revival of natural law in the twentieth century. He propounded two basic principles of justice, namely,
(1) equality of right to securing generalised wants including basic liberties, opportunities, power and minimum means of subsistence; and
(2) social and economic inequalities should be arranged so as to ensure maximum benefit to the community as a whole.
Francois Geny (1861-1944) was much impressed by the Stammler’s natural law with variable content “therefore, he devoted himself to the revived natural law. He was opposed to the empiricism of the historical and analytical schools. He believed that law has to be relativistic and not static or immutable like the nineteenth century-natural law. He underlined the importance of judicial, decisions in moulding a legal system. Geny developed his natural law theory within the framework’ of the positive law.
Geny, as a sociological lawyer regarded the law of nature as the sociological factor which controls and influences the legislators and the Judges. The technique of lawmaking or pronouncing judgements ‘ involves the welding of the following factors to make the resultant rules serve the need :
1. The physical factors for the society’s existence and environment.
2. The evolution, history and traditions of the society;
3. Such fundamental principles which promote sanctity of human life and freedom;
4. The ideals and inspirations of the society .
As a neo-Hegelian, Kohler defined law as, “the. standard of conduct which in consequence of the inner impulse that urges upon men towards a reasonable form of life, emanates from the whole, and is forced upon the individual”. He says that there is no eternal law and the law shapes itself as the society advances morally and culturaly in course of evolution. He tried to free the nineteenth century natural law from the rigid and a priori approach and attempted to make it relativistic, adapting itself to the changing norms of the society.
Another twentieth century natural law natural law as a set of principles of practical reasonableness in ordering human society . He emphasised on six values namely
(2) knowledge, that is perfect truth over false,
(4) appreciation for beauty,
(5) practical reasonableness in shaping ones own character; and
(6) religious freedom.
The function of law according to Finis is to promote these values and ensure justice and order in the society.
Lon Luvois Fuller (1902-1978) is also considered as one of the leading supporters of the modern natural law philosophy. He emphasised on the role of reason’ in legal learning and believed that law and morality are necessarily co-related. He said that good order is law which corresponds to justice or morality. Thus, he denied any rigid separation between “is” and “ought’ aspect of law. He brought out an excellent exposition of legal positivism and natural law which according to him, were two divergent legal philosophies competing at that time. Fuller pointed out that the essence of legal positivism is sharp distinction between law ‘as it is’ and ‘as it ought to be” whereas natural law theory denies this rigid separation of is and ought which has been a cause of great confusion in the existing legal system.
Lon Fuller analysed the concept of morality and its relation with law in great detail. He distinguishes ‘morality as it is’ from ‘morality as it: ought to be’ and calls the former as ‘morality of duty’ and the latter as ‘morality of aspiration’. He further sub-divides moral duties’ in to affirmative actions or duties and forbearances which he called ‘negative duties’.
According to him, morality of duty includes basic requirements of social living whereas morality of aspiration means good life of excellence, e.g., forbearing from indulging into extra-marital sex activities. Morality of duty can be generally enforced by law but not the morality of aspiration.
Lon Fuller believes that law is a purposive system, the purpose being ‘to subject human conduct to the control and guidance of legal rules’. He thinks that every workable legal system must comply with eight requirements in order to make the law really effective. These requirements are :
1. There should be definite rules,
2. These rules must be well publicised,
3 . There should be no abuse of retrospective legislation,
4. The rules must be easily understandable,
5. The rules must be practicable and must not require a person to do something which is beyond his power of capacity,
6. The rules must not be contradictory or inconsistent with any other existing law,
7. The rules should not be subjected to frequent changes, and
8. There must be congruence between the rules promulgated and their actual administration.
Critical Appraisal of Natural Law Theory
The part played by the natural law in development of modern law can hardly be exaggerated. Legal history testifies that it was natural law which directly or indirectly provided a model for the first man-made law. Appreciating the contribution of natural law Roscoe Pound said, “the uncertainty of the higher law is preferable to the arbitrariness and insolence of naked force”.
Oppenheim also recognised the contribution of the natural law and observe the system of the law of nature and doctrines of its prophets modern constitutional law and the law of nations would not have been what they are today”.
Despite the merits of natural law philosophy, it has been criticised for its weaknesses on the following grounds :
1. The moral proposition, i.e., ‘ouscht to be’ may not always necessarily conform to the needs of the society. For instance, it is natural for men to beget children, as it is for trees to bear fruit. But the factual position maybe different since many countries including India, may like to restrict the growth of their population by resorting to family planning devices. While, on the other hand, no one would ever like to restrict the growth of fruits on trees.
2. The concept of morality is a varying content changing from place to place; therefore, it would be futile to ‘think of universal applicability of law. For example, one society may adhere to monogamy while another may permit plurality of, marriages. Again, ‘adultery is an offence in India whereas in Britain, it is merely a civil wrong.
3. The rules of morality embodied in natural law are not amenable to changes but the legal rules do need a change with the changing needs of the society.
4. Legal disputes maybe settled by law courts but the disputes -relating to morality and law of nature cannot be subjected to judicial scrutiny, and even if they are challenged in a court of law, the correctness of the verdict may always be questioned since it is based on subjective discretion of the Judge.
5. Though apparently law and morality may appear to be in conflict with each other, the factrexnains that in order to decide whether a particular law is “just’ or ‘unjust’, it has to be tested on the basis of the principles of morality.
Place of Natural Law in Indian Legal System
Apart from the fact that modern Indian judicial system having been, founded on the British pattern, the fine principles of equity, justice and good conscience and natural justice occupy an important place in the Indian law. The higher values of universal validity, righteousness, duty, service to mankind, sacrifice, non-violence etc. were already incorporated in the ancient legal system. For ancient Indian philosophers, natural law (i.e., the dharma) was neither a cult, nor a creed or an ideology in western sense of the term, but it was righteous code of conduct prescribed for living an orderly life in society. The Vedic concept of Rita has reference to law of nature which when applied to mortal world, signifies tne moral law or the eternal laws of right and ‘reason’. The principles of natural law embod’ed in dharma referred to dutieii of man towards, gods, sages, men, lower animals and creature. It has been characterised ‘as a .belief in the conservation of moral values.
During the medieval and British period in India, natural law found its expression in the religious preachings of Ramanuja Sankara, Kabir, Nanak, Swami Ramkrishna Paramhans, Swami Dayanand, Raja Ram Mohan Roy etc. who reiterated the Vedic philosophy to re-establish the age-old Indian “values of life. The Bhakti cult in India re-enforced the old Indian values of truth, righteousness, morality and justice. Mahatma Gandhi laid great emphasis on truth, non-violence and righteous conduct in life.
The natural law philosophy suffered a temporary set back during the Moghul rule in India. The vast majority of Hindu population was left untouched by Mulsim rule because of the internal dynastic clashes and political upheavals which made things worse. The advent of the British rule in India, however, brought a sigh of relief against irrational Mohammedan laws. The British rulers gradually introduced their own laws replacing the Islamic laws. The personal law of Hindus and Muslims were, however, left untouched as a matter of political expediency since it was likely to antagonise the sentiments of the indigenous native population. The British adopted two methods to remove the defects in the then existing Indian law. In matters not governed b an law, they applied the doctrine of equity, justice and conscience in order to introduce English law in India. Secondly, they started codification of laws in order to ensure certainty, uniformity and rationality of laws. The Indians were, however, denied their civil liberties and political rights and their nationalist movement was ruthlessly suppressed in order to retain British supremacy in India.
As a result of long British colonial rule in India, certain principles of natural law enshrined in the English iaw automatically found place in the Indian law which was broadly modelled on the British laws. The principles of natural justice, doctrine against bias, judicial review, reasoned decisions and many other precepts of administrative iaw are based on principles of natural law.