Basics of Natural school of Jurisprudence

Natural Law School of Jurisprudence

1. BASICS OF NATURAL SCHOOL OF JURISPRUDENCE BASICS OF NATURAL SCHOOL OF JURISPRUDENCE BY ANJALI DIXIT ASSISTANT PROFESSOR FACULTY OF JURIDICAL SCIENCES RAMA UNIVERSITY KANPUR

2. Natural Law – It’s Meaning & Definition There is no unanimity about the definition and exact meaning of natural law and the term “natural law theory” has been interpreted differently at different times depending on the needs of the developing legal thought . According to COHEN, natural law is not a body of actual enacted or interpreted law enforced by courts; it is in fact a way of looking at things and a humanistic approach of judges and jurists. It embodies within it a host of ideals such as morality justice, reason, good conduct, freedom, equality, liberty, ethics and so on. COHEN & COHEN : Reading in Jurisprudence and Legal Philosophy BASICS OF NATURAL SCHOOL OF JURISPRUDENCE

3. Natural law is a philosophy of law that focuses on the laws of nature. This school of thought tells us that law both – rational and reasonable. Moreover, natural law proposes that laws are more of a logical progression from morals. Therefore, actions that are morally wrong will be against the law. But also, actions that are morally right can’t truly and justly be against the law. Natural law exists regardless of what laws are enacted. BASICS OF NATURAL SCHOOL OF JURISPRUDENCE

4. History According to Friedman, the history of natural law school is a ‘tale of the search of mankind for absolute justice and failure ’. Natural law can be broadly divided into four classes: Ancient theories Medieval theories Dark Ages Renaissance theories Modern theories BASICS OF NATURAL SCHOOL OF JURISPRUDENCE

5. Ancient Theories Greece The Greeks are said to have laid the foundations of the natural law school. The Greek thinkers developed the idea of natural law and laid down its essential features . Heraclitus was the first Greek philosopher who pointed at the three main characteristic features of law of nature, namely Destiny, Order and Reason BASICS OF NATURAL SCHOOL OF JURISPRUDENCE

6. Socrates view on Natural Law (470 399 BC) According to Socrates , “virtue is knowledge "and “whatever is not virtuous is sin”. To him, justice may be of two kinds, namely, Natural justice, and Legal justice. BASICS OF NATURAL SCHOOL OF JURISPRUDENCE

7. Aristotle’s view on Natural Law (384-322 B.C.) Aristotle defined natural law as reason unaffected by desires”. It embodies the basic principles of justice and morality which have universal validity independent of time and place. Aristotle’s concept of natural law is different from that of Socrates, he divides the life of man in two parts, first, he says that man is the creature which is created by God and second he posses the quality of reason by which he can develop his own will. BASICS OF NATURAL SCHOOL OF JURISPRUDENCE

8. Plato (427-347 BC) Plato extended that only intelligent and worthy person should be the king. He argued that justice lies in ordaining man's life through reason and wisdom and motivating him to control his passion and desires. In his republic, Plato emphasized the need for perfect division of labour and held, "each man ought to do his work to which he is called upon by his capacities ". BASICS OF NATURAL SCHOOL OF JURISPRUDENCE

9. Rome 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. BASICS OF NATURAL SCHOOL OF JURISPRUDENCE

10. Jus civil refers to Roman civil law which applied to roman citizens only. Jus gentium refers to certain principles of natural law that 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. BASICS OF NATURAL SCHOOL OF JURISPRUDENCE

11. Cicero Marcus Tullius Cicero was a great Roman lawyer, statesman and orator. His legal philosophy is contained n his famous work “de legibus ". 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. BASICS OF NATURAL SCHOOL OF JURISPRUDENCE

12. Dark Ages Nature to be overcome During dark ages the early Christian Fathers expressed views on the “law of nature” from a theological base. Important of them is ST.AUGUSTINE. According to him, the union with divine is the end of law. In medieval time, Christian Fathers modified this approach and gave a respectable place to “natural law”. BASICS OF NATURAL SCHOOL OF JURISPRUDENCE

13. Medieval Theories The period from12th century to mid-fourteenth century is reckoned as the “medieval age " in the European history. This period was dominated by the ecclesiastical doctrines which the Christian Fathers propagated for establishing the superiority of Church over eh 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 Gregrory propagated a view that divine law was superior to all other laws. BASICS OF NATURAL SCHOOL OF JURISPRUDENCE

14. St. Thomas Aquinas (1225-1274) Catholic philosophers and theologians moved away from the orthodox interpretation of natural law and gave a more logical and systematic theory of natural law. He is considered to be the representative of the natural law theory of his age. BASICS OF NATURAL SCHOOL OF JURISPRUDENCE

15. Renaissance Theories General awakening among the masses coupled with new discoveries of science during the 14th and 15th centuries shattered the foundation of established values. 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. BASICS OF NATURAL SCHOOL OF JURISPRUDENCE

16. Theories of Social Contract Social contract theory presupposes a state of nature, various philosophers have described their own state of nature. In simple terms state of nature is the condition before a contract has been entered into, whatever may be the situation people entered into a contract either with themselves or with a single person under where philosophers are very important to understand the development of natural law during the Renaissance period. BASICS OF NATURAL SCHOOL OF JURISPRUDENCE

17. These philosophers are: Hugo Grotius Thomas Hobbes John Locke Rousseau BASICS OF NATURAL SCHOOL OF JURISPRUDENCE

18. Hugo Grotius 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 rule however bad his government may be. Thomas Hobbes Hobbes believed in the existing 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’. BASICS OF NATURAL SCHOOL OF JURISPRUDENCE

19. John Locke It was for the purpose of protection of property that man entered into a social contract. Under this contract, he did not surrender all his rights, but only a part of them. All these rights were surrendered in order to maintain order and to enforce the law of nature. The natural rights like the right to liberty, property, and life were to be retained by man. BASICS OF NATURAL SCHOOL OF JURISPRUDENCE

20. Rousseau’s Contract According to Rousseau man entered into a contract in order to preserve the rights of equality and freedom, they surrendered their rights not to a single individual but to the community as a whole which Rousseau calls it as the general will . Theory of General Will According to Rousseau, it is the duty of an individual to obey the general will because in that way he is obeying his own will. BASICS OF NATURAL SCHOOL OF JURISPRUDENCE

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