Q. 13. Give a brief account of the historical development of Natural law school.
Trace the historical development of Natural law school.
Ans. Historical Development of Natural law school—The evolution and development of natural law theory has been through various stages which may broadly be studied under the following heads :-
1. Ancient Period,
2. Medieval Period,
3. The Period of Renaissance and
4. Modern Period.
1. Ancient Period, Heraclitus (530-470 BC)—The concept of natural law was developed by Greek philosophers around 4th century B.C. Heraclitus (530-470 BC) was the first Greek philosopher who pointed out the three main characteristic features of law of nature (i) destiny (ii) order and (iii) reason.
Socrates (470-399 B.C)—The name of Socrates occupies a prominent place among the stoic philosophers of the ancient times. He was a great admirer of truth and moral values. He argued that like natural physical aw, there is a natural moral law. It is because of this human insight that a man has The capacity to distinguish between good and bad and is able to appreciate thib moral values. Thus, according to Socrates ‘virtue e’ and ‘whatever is not virtuous is sin’. The reasonability of a particular law is judged by human insight and only those laws would’ be deemed proper which are in accordance with the principles of law of nature and are supported by human reasoning.
Plato (427-347 B.C.)—Socrates disciple Plato carried further the natural law philosophy through his concept of ideal state (Republic). According to him, justice lies in orderin: man’s life throu h reis wisdom and motivating him to control his passion and desires. According to Plato, ‘the laws of states are a pale shadow of an absolute idea of perfect laws against which man- made laws may be measured.
Aristotle (384-322 B.C.)—According to Aristotle, man is a part of nature in two ways. Firstly, he is a creation of God. And secondly, he possesses insight and reason which enable him to articulate his actions. He defined natural law as reason unaffected by desires. It embodies basic principles of justice and morality which have universal validity independently of time and place. But Aristotle did not categorically state that the positive law which is contrary to principles of natural law is invalid. Positive law should try to incorporate within it the five principles of natural law but it should be obeyed even if it is devoid of the standard principles of natural law. Thus the three main exponents of Natural law : Socrates, Plato and Aristotle during the Ancient times regarding the development of Natural law covering 500 years BC explain the contributions made by them as narrated above. Natural law in Roman system—The Romans did not confine their study of Natural law theory merely to theoretical discussion but carried it further tog ive it a practical shape by transforming their rigid legal system, into cosmopolitan living law. The natural law philosophy found an expression in the Roman legal system through div. ion of R ruLan law into three distinct divisions namely, jus civil, through division of roman law into three distinct divisions namely, jus civil, jus gentium and naturale. The civil law called jus civile was applicable only to Roman citizens and the law which governed Roman citizens as well as the foreigners was known as jus gentium. It consisted of the universal legal principles which conformed to natural law or law of reason. Later, both these were merged to be known as jus naturale as Roman citizenship was extended to every one except a few categories of persons. The Roman lawyers of that time did not think it necessary to enter into the controversy of conflict between positive law and natural law though there was a general feeling that natural law being based on reason and conscience was superior to positive law, and, therefore, in case of a conflict between the two, the latter should be disregarded. Cicero was a great Roman lawyer, statesman and orator. According to him, “true law is right reason in agreement with nature; it is of universal application, unchanging and everlasting and there would not be different laws at Rome and at Athens, but one eternal and unchangeable law which will be valid for all nations at all times.”
2. Medieval Period (12th century to mid-14th century in European history)—
This period was dominated by the ecclesiastical doctrines which the Christian Fathers propagated for establishing the superiority of church over the state. They used Natural law theory to propagate Christianity and to establish a new legal order and political ideology based on morals and theology. The Christian saints especially Ambrose, St. Augustine and Gregory propagated a view that Divine law was superior to all other laws. According to them, all laws are either divine or human. Divine lays are based on nature while human laws on custom. It is the divine nature of the natural law which makes it binding overruling all other laws.
The main tenets of the Natural law of the medieval period may be stated as follows :-
1. The supporters of the theory believed that the institutions of slavery, property, state etc. represented the evil desires because they are not creation of nature, nevertheless they are necessary for preventing or limiting the vicious tendencies of men. The existence of state and society is essential for the development of morals and ethical values in man: For enforcement of law, morals, customs, traditions, rules, regulations etc. there must be some organised society where source of law and obedience may be ensured. In primitive societies the custom with sanction played the same role. Cicero and Seneca supported this view.
2. Law is the greatest binding force both for those who govern and governed. Thus the Natural law theory accepted the supremacy of law.
3. The greatest problem before the medieval legal thinkers and philosophers was the correct interpretation of law. They believed in two facets of the human activities, namely, Worldly and Godly. They are radically different from one another and there arises no quesfion of conf or clash between the two States, i.e. ruler is supreme in the field worldly activities whereas Pope held supreme authority in the realm Godly activi ties.
4. As to the que.stion about the exact source of legal authority in a developed society the majority view was that state and law were the gift of the people who agreed to subdue themselves to their authority.
3. The Period of Renaissance—
The period of renaissance in the history of development of natural law may also be called the modern classical era which is marked by nationalism and emergence of new ideas in different fields of knowledge. The natural law theories propounded by Grotius, Locke and Rousseau held that ‘Social contract’ was the basis of the society.
Hugo Grotius (1583-1645)—Grotius believed that howsoever bad a ruler may be, it is the duty of the subjects to obey him. There is apparent inconsistency in the natural law propounded by Grotius because on the one hand, he says the ruler is bound by the natural law, and on the other hand, he contended that in no case the ruler should be disobeyed it appears that Grotius main concern was stability of political order and maintenance of international peace which was the basis of the society.
Grotius firmly believed that man by nature is peace loving and desires to live according to dictates of reason. He, therefore, treated natural k immutable which cannot be changed by God himself. According to natural law is based on the nature of man and his urge to live in pea society. He considered divine law as the grandmother, natural la parent and positive law as the child. Because of peace loving, basf reason and proximate to nature, the law propounded by Grotius immutable and pereninal, true and of prototype nature, i.e. always the same. He advocated, as such, applicability of laws at international levels and is regarded as Father of international law.
Thomas Hobbes (1588-1679)—Thomas Hobbes made use of natural law to justify the absolute authority of the ruler by endow him power to protect his subjects. Thomas Hobbes propounded theory of social contract relating to evolution of the state. According to Hobbes, prior to ‘social contract’ man lived in chaotic condition of constant fear. The life in the state of nature was ‘solitary, poor, ‘tasty, brutish and short’, therefore, in order to secure self-protection and avoid misery and pain, men voluntarily entered into contract and surrendered their freedom to some lightiest authority who could protect their lives and property. This led to the emergence of the institution of the ‘ruler’ which later assumed the Dharm of the state. In his famous or, Leviathan, he observed that law is dependent upon the sanction of the sovereign. In his opinion, ‘Governments with out sword are but words and of no strength to secure a man protector at all. Austin’s imperative theory of law is essentially an outcome of Hobbe’s doctrine of absolutism of sovereign.
John Locke (1632-1704)—John Locke came up with a new interpretation of the social contract rejecting Hobbes concept of state of nature. He stated that the life in state of nature was not as miserable and brutish as depicted by Hobbes, instead it was reasonably good and enjoyable except that property was insecure. In order to ensure proper protection of property, man entered into the social contract surrendering only a part of his rights, and not all the rights as contemplated by Hobbession theory. Thus the natural rights of man such as right to life, liberty and property remained with him and only the right to maintain order and to enforce the law of nature was surrendered by him. The purpose of the state and law was to uphold and protect the natural rights of men so long as the state fulfils this purpose, its laws were valid and binding but when it ceases to do so, the people have a right to revolt against the government and overthrow it.
Jean Rousseau (1712-1778)—Jean Rousseau pointed out that social contract’ is not a historical fact as contemplated by Hobbes and Locke, but it is merely, a hypothetical conception. Prior to the so called social contract, the life was happy and there was equality among men people united to preserve their rights of freedom and equality and for this purpose they surrendered their rights not to a single individual, i.e., sovereign, but to the community as a whole which Rousseau termed as general will’. Therefore, state and law are the product of general will, for Rousseau, state, law, sovereignty, general will etc. are interchangeable terms. His theory is considered to be the forerunner of the modern jurisprudential thought and legal theory.
Immanual Kant (1724-1804)—Kant’s theory of categorical imperative was derived from Rousseau’s Theory of General Will. It embodies two principles.
1. The categorical imperative expects a man to act in such a way that he is guided by dictates of his own conscience. Thus, it is nothing more than a human right of self-determination.
2. The second principle expounded by Kant was the doctrine of ‘autonomy’ of the will, which means an action emanating from reanon but it does not mean the freedom to do as one pleases. In essence, Kant held that an action is right only if it co-exists with each and every main’s free will according to the universal law. Thus, he called as ‘The Principle of Innate Right’. The sole function of the state according to him is to ensure observance of law and its proper implementation.
4. Modern Period-
Dr. Allen has rightly pointed out, ‘The new natural law is value loaded, value oriented and value conscious and is relativistic and not absolute, changing and varying and not permanent and everlasting in character. It represents a revolt against the determination of Historical school, on the one hand and artificial finality of the Analytical school on the other hand. The main exponent of the new revived natural law were Rudolf Stammler, Prof Rawls, Kohler and others.
Rudolf Stammler (1866-1936)-Kohler defined law as species of will, others—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
(1) principle of respect, and
(2) 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 harmonizes the purposes in the society. The purpose of law is not to protect the will of one but to unify the purpose of all. Individuals expectations are harmonised with the society’s purpose of peaceful continuity adjusting the changes of time and needs it develops.
Prof. Rawls—Professor Rawls made significant contribution to the revival of natural law in the twentieth century. He propounded two basic principles of justice, namely,
(i) equality of right to securing generalized wants including basic liberties, opportunities, power and minimum means of subsistence and
(ii) social and economic inequalities should be arranged so as to ensure maximum benefit to the community as a whole.
Kohler—As a neo-Hegelian, Kohler defined law as the standard of conduct which in consequence of the inner impulse that urges upon -irten 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 advx ices morally and culturaly in course of evolution. He tried to free the nin teenth 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.