NATURAL LAW SCHOOL.pptx

All About Jurisprudence and Natural Law School

1. SCHOOLS OF THOUGHT NATURAL LAW SCHOOL 1 /45 Contd...

2. INTRODUCTORY In Jurisprudence, the term Natural Law means those rules and principles which are considered to have emanated from some supreme sources other than any political or worldly authority. Various theories have be created since very early time about the source, authority and relation of these rule of Natural law with Positive Law . Some say that these rules have come from God; some find their source in nature; others say these rules are product of reason . Therefore, these rules have been bestowed different names by different jurists, based on their sources, like Divine Law , Moral Law , Law of Nature , Law of God , Natural Law , Unwritten Law and many others. 2 /45 (1/3) Contd...

3. INTRODUCTORY The central idea of the Natural Law t heory is that there exists objective moral principles based on the essential nature of the universe and discovered by natural reason. In this sense, Human Law is truly law in so far as it conforms to these principles. Differentiation: The Human Law or the P ositive Law can be found in the Codes, Statutes, Constitution, etc, but the Natural Law is based on principles of justice and morality. T he term Natural Law in its primary sense means the physical universe or external nature. The Romans discovered that the Natural Law can be applied by them to change and improve the existing laws. 3 /45 (2/3) Contd...

4. INTRODUCTORY The principles of Natural Law is embedded very deep in the Greek philosophy and it is from there it has developed to its present form by neophilosophical jurists . Classification: The Natural Law philosophy can be categorized into four theories evolved through four different stages of civilization : Greek Theories; Medieval Theories; Renaissance Theories; and Modern Theories. 4 /45 (3/3) Contd...

5. GREEK THEORIES According to early Greek philosophy , the word Nature meant and included the entire universe. Among its variety of concepts, the most unique was ‘diversity’ itself. After careful observation, another peculiar concept- the concept of ‘uniformity’ was noticed. E.g. The entire biodiversity, constituting all the genus and species, were governed in their view by the “uniform law of growth and decay” . After prolonged scrutiny, it was the settled view that the order and method in their functioning could not be accidental or without any reason . They could only be attributed to some intelligent power or principle pervading in universe. 5 /45 (1/7) Contd...

6. GREEK THEORIES Aristotle said that this guiding principle immanent in the universe was ‘nature’ . The Greeks observed the same uniformity in diversity . The view gradually turned from the material universe to human beings and social phenomena. The Greeks observed that despite their physical and moral differences/dissimilarities, all human beings in certain respects were moved by common instincts , inclinations, desires and behaviourism. The Greek philosophy included even these moral phenomena as part of nature’s plan. However, for regulation of these common tendencies, the Greeks framed certain rules . 6 /45 (2/7) Contd...

7. GREEK THEORIES Perception of SOCRATES (470-399 BC) of Athens: In contrast to the natural physical law , there is another law- the natural moral law . The entire humanity possesses an ‘insight’ and this ‘insight’ reveals to him the goodness and badness of things and makes him know the absolute and eternal moral rules. This human insight is the basis to judge the law . If positive law is inconsistent with the moral law, still then it should not be disobeyed. It is rather the appeal of the ‘insight’ to obey it. Perhaps that is why he preferred to have a cup of poison in obedience to law than to have an attempt to escape the dungeons. 7 /45 (3/7) Contd...

8. GREEK THEORIES Viewpoint of ARISTOTLE (384-322 BC): Man is a fragment of nature in two ways- ( i ) He is the fraction of the creatures of God, and (ii) He acquires an operational reason by which he can shape his will. By this reason man can discover the eternal principle of justice . Since the man’s reason is the part of the nature, the law discovered by reason is called “Natural Justice” . Natural Justice is that which everywhere has the same force and does not exist by the people thinking this or that. Positive Law should conform the rules of Natural Law. Notwithstanding inconsistency, it should be adhered to since law should be reformed rather than to be broken. 8 /45 (4/7) Contd...

9. GREEK THEORIES Views of STOICS : A sect of Greek thinkers called Stoics popularized the maxim, “Live according to nature” . They regarded nature as a living organism . The material world represented its body and the divine or universal reason its pervading soul. Man being part of the universal nature was supposed to be guided by reason . They viewed Natural Law as only a manifestation of the Divine reason in man. It was through possession of reason that man is enabled to know the precepts of law and act accordingly. 9 /45 (5/7) Contd...

10. GREEK THEORIES Reflection of the ROMAN View: Romans were far greater legal scientists than the Greeks. The Romans adopted the Greek concept of Natural Law and applied it as an instrument of legal development and legal reform. The ‘jus naturale’ is to the ‘civil law’ as ideal law is to real law. The law which people of a community establish for themselves is peculiar to them and is called the civil law or ‘jus civile’ . It is the law of the land . However, the law which natural reason has established for all men is observed by all people alike and is called the law 10 /45 (6/7) Contd...

11. GREEK THEORIES of nations or ‘jus gentium’ . This law is used by all nations . The last is the ‘jus naturale’ based on universal reason common to mankind. Thus, ‘jus gentium’ was identified with ‘jus naturale’ and in case of conflict between ‘jus gentium’ and ‘jus civile’ , the validity was to be adjusted in accordance with the principles of ‘jus naturale’ . The principle of ‘jus naturale’ which the Romans inherited from Greeks became an ideal law for reconciling the rules of ‘jus gentium’ and ‘jus civile’ . 11 /45 (7/7) Contd...

12. MEDIEVAL THEORIES Catholic philosophers and theologicians of the Middle Ages gave a new theory of Natural Law. Though they gave it a theological basis , they departed from the orthodoxy of early Christian Fathers. Their views were more logical and systematic . St. Thomas Acquinas's theory is a representation of the Medieval philosophy. His views about society is too similar that of Aristotle . He divided law into four fragments: Law of God; Natural Law, i.e. revealed through the reason of man; 12 /45 (1/3) Contd...

13. MEDIEVAL THEORIES Law of Scriptures or Divine Law; and Human Laws. He said ‘Natural Law’ is a part of ‘Divine Law’ . It is that part which reveals itself in natural reason. This part is applied by human beings to govern their affairs and relations. ‘Human Law’ or the ‘Positive Law’ must conform to the ‘Law of Scriptures’ . Church is the authoritative interpreter of the ‘Law of Scriptures’ and therefore, it has the authority to give verdict upon the goodness of ‘Positive Law’ also. He said that the ‘Human Law’ is valid only in so far as it is in 13 /45 (2/3) Contd...

14. MEDIEVAL THEORIES conformity with ‘Natural Law’ or the ‘Law of Scriptures’ . However, even if it is unjust then also a man should obey it. It is necessary to avoid disturbance. 14 /45 (3/3) Contd...

15. RENAISSANCE THEORIES This period marks a great awakening and resurgence of new ideas in all the fields of knowledge. Exploration of new branches of knowledge and discoveries of science shattered the foundation of established values. Rationalism became the creed of the age. New dimension of commerce created a new class in the society which demanded more protection from the state. New theories supporting the sovereignty of the State were propounded. All the abovementioned factors, together, created forces to overthrow the dominance of the Church . The “Natural Law” theories of this age proceeded from the supposition that a “Social Contract” is the basis of society. 15 /45 (1/10 ) Contd...

16. SOCIAL CONTRACT THEORY In the beginning, man lived in the natural state. They had neither any government, nor any law. The men entered into an agreement known as “ pacta unionis ” for the protection of their lives and property. Thus society came into existence and the men undertook to respect each other and live in peace. The men then entered in a second agreement known as “ pacta subjectionis ” by which the people, who had united together earlier, undertook to obey an authority and surrendered the whole or a part of their freedom and rights and the authority on its part guaranteed protection of life, property and part liberty. Thus Government , Sovereign or Ruler came into being. 16 /45 (2/10) Contd...

17. SOCIAL CONTRACT THEORY Views of GROTIUS : Political society rests on Social Contract . It is the duty of the Sovereign to safeguard the citizens because it was given the power only for that purpose. The Sovereign is bound by “Natural Law” which is discoverable by man’s reason. However, even if the Ruler does not act in conformity with the Natural Law, he should still be obeyed. The subject i.e. citizen actually has no right to repudiate the contract or to revoke the power. Created controversy i.e. creating inconsistency within itself. 17 /45 (3/10) Contd...

18. SOCIAL CONTRACT THEORY On one hand, the theory articulates the view that the Ruler is bound by the Natural Law . On the other, the theory expresses that the Ruler should, in no case be disobeyed . The rationale behind this inconsistency was the crave for continuation of stability of the political order. 18 /45 (4/10) Contd...

19. SOCIAL CONTRACT THEORY Views of HOBBS (1588-1679): Before “Social Contract” , man lived in a chaotic life. The state of nature was of fear and selfishness. It was “solitary, poor, nasty, brutish and short” . Improvisation, idea of self-preservation and avoiding misery and pain are inherent in human nature. These natural inclinations induced him to enter into a contract and surrender his freedom and power to some authority . The law of nature can be discovered by ‘reason’ which influences what a man should do and what he should not do. Man has natural inclination for security and order. 19 /45 (5/10) Contd...

20. SOCIAL CONTRACT THEORY It is possible to realise it by establishing a Superior Authority which must command obedience. This theory promotes ”Absolutism” . The subject i.e. citizen has no rights against the Sovereign and latter in no case be disobeyed. Even the Church has no power against the Sovereign. Faintly suggests that the Sovereign should be bound by “Natural Law” , nothing more than a moral obligation . 20 /45 (6/10) Contd...

21. SOCIAL CONTRACT THEORY Views of LOCKE (1632-1704): A new interpretation of “Natural Law” was necessary in order to support the individual against the power of the Sovereign. The state of nature was a golden age, only the property was insecure. It was for the protection of property that men entered into the Social Contract . Man under the contract did not surrender all his rights but only a part of them, namely, to maintain order and to enforce the law of nature. He retained to himself a portion of natural rights. 21 /45 (7/10) Contd...

22. SOCIAL CONTRACT THEORY E.g.: Right to Life, Liberty and Estate. The purpose of government and law is to uphold the natural rights. So long the government fulfils this purpose, the laws given by it are valid and binding . However, when the government ceases to do that its laws have no validity and then it may be overthrown . Locke believed in liberty whereas Hobbs stood for authority . 22 /45 (8/10) Contd...

23. SOCIAL CONTRACT THEORY Views of ROUSSEAU (1712-1778): Before the Social Contract , man was happy and free and there was equality among them. There was no private property , no competition and no jealousy. By entering Social Contract, men united for the preservation of their rights of freedom and equality. For this men surrendered their rights not to a single individual, i.e. Sovereign but to the community- General Will . It is the duty of every individual to obey the General Will because in doing so he directly obeys his own will. 23 /45 (9/10) Contd...

24. SOCIAL CONTRACT THEORY The existence of the State is for the protection of freedom and equality. The government and the law are both made by the Sovereign i.e. General Will and are both subject to it. If the government and the laws are not in conformity with the General Will, then they are to be overthrown . Thus, Rousseau laid emphasis on the community and whereas Locke laid emphasis on the individual . 24 /45 (10/10) Contd...

25. MODERN THEORIES In the 19 th Century the Natural Law School became unpopular. David Hume demolished the law of nature and said that all law is human convention . The new natural law theories have taken stock of the various approaches to law made during the past and present centuries. The new jurists sought guidance from the contemporary theories in other branches of knowledge and presented it. Now Natural Law is relative and not abstract or unchangeable. The new approach is concerned with practical problems and not with abstract ideas. Its attempt to harmonize the Natural Law with the variability of 25 /45 (1/9) Contd...

26. MODERN THEORIES human ideals and takes into account the new legal theories, putting emphasis on society . To distinguish this new approach of Natural Law from the old theories, the new theory is called “Natural Law with variable content” . 26 /45 (2/9) Contd...

27. MODERN THEORIES Views of STAMMLER : He was much more influence by Positive Law. He said that- All positive law is an attempt at just law . With regard to will and purpose of the law maker , he said that they should have the proper understanding and knowledge of actual social world or social reality. Various times in his concept, he inter-changeably used the word ‘will’ with the word ‘purpose’ . He concluded that it is the will of the people which enable them to secure their purpose under social reorganisation . 27 /45 (3/9) Contd...

28. MODERN THEORIES Views of KOHLER : His thoughts were influenced by Hegal . Law is standard of conduct which is consequence of in the impulse of human being that urges him towards a reasonable form of life. It also derives its validity from the moral and ethical standard in society. So that he laid down stress upon moral and cultural development of society. 28 /45 (4/9) Contd...

29. MODERN THEORIES Views of FINNIS : Natural Law is the set of principles of practical reasonableness in ordinary human life and human community. He sets up the proposition that there are certain basic goods for human being like: Life : The term life signifies every aspect of vitality in good shape for self determination. Knowledge : Knowledge is a process of knowing of unknown with the help of sense. Sociability of Friendship : Doing something best for the sake of one’s friend’s purposes , one’s well being. 29 /45 (5/9) Contd...

30. MODERN THEORIES Role : It is the expression of a status of human being in practical form. Such role is protected and recognised by law. Religion : Question of the origins of cosmic order and of human freedom and reason expressed. Thus this view is a good that even an ethicist can value. Practical Reasonableness : This is the logical expression of the ideas and decision in practical circumstances. This is the measurement of just or unjust in a real situation . 30 /45 (6/9) Contd...

31. MODERN THEORIES Views of PROF. LON FULLER , of Harvard University: He attacked the analytical positivists for their separation of law from morals. Rejected the notion of natural law as a body of authoritative higher law , and that a man’s conduct should be measured in light of these principles. No Natural Law theory can be accepted which attempts to lay down in advance an eternal, unchanging code of nature . Suggested the term ‘ Eunomics ’ which he defined as “the theory or study of good order and workable arrangement”. Warned that Eunomics must not attempt any orthodoxy or doctrine of binding ultimate ends. 31 /45 (7/9) Contd...

32. MODERN THEORIES The integrity of the laws is determined primarily by the process which it uses to accomplish its goals. He talked about inner morality of law as an essential condition for the functioning of law. The inner morality of law can be enumerated as: Generality : There must be formation of general rules to guide actions. Promulgation : These rules framed must be made known to public. Prospectivity : The rules should be prospective in nature, meaning thereby they should suit to future and not regressive. 32 /45 (8/9) Contd...

33. MODERN THEORIES Intelligibility : They should be framed in such a way that they are comprehensive and easily understandable. Non-contradictoriness : These should be consistent with other rules Constancy : They should be stable in a reasonable way, that is should not be changed too frequently. Suitability : Congruency between official actions and declared rules. Submission : Possibility of obedience. 33 /45 (9/9) Contd...

34. DECLINE OF NATURAL LAW THEORY The 19 th Century saw the decline of Natural Law. These theories reflected more or less the great economic and political changes which had taken place in Europe. Reason or rationalism was the spirit of the eighteenth-century thought. Problems created by the new changes and developments demanded political and concrete solutions . Individualism gave way to collectivistic outlook. Modern sciences and political theories started preaching that there are no absolute and unchangeable principles. The 19 th Century witnessed dramatic achievements in physical sciences and the impact of Darwin’s evolutionary hypothesis upon every field of thought affected social sciences and through 34 /45 (1/3) Contd...

35. DECLINE OF NATURAL LAW THEORY it jurisprudence and the philosophy of law. Priori methods of Natural Law were unacceptable in the emerging age of science. The scientific age denied the existence of anything that could not be perceived by the senses, or proper analysis, or reduced to a formula, or weighed, counted or measured. August Comte reduced all the vagueness and loose thinking about social phenomena into a form of metaphysical, abstract and theological speculation. Comte said that all social phenomena, including law should have a scientific approach - experiment, observation, and conclusion (classification), just like other sciences (physical). 35 /45 (2/3) Contd...

36. DECLINE OF NATURAL LAW THEORY Austin and Bentham opposed Natural Law because according to them law is Sovereign’s command and not an embodiment of reason. Prof. Hans Kelsen further opposed Natural Law by separating morality and ethics from law and even termed them as ‘impurities’. Proper researches disclosed that Social Contract was a myth. Historical and Analytical legal philosophies were more realist . All the above factors combined together and resulted in an instrument of social change by providing a possible part remedy to the victims of millennia old oppression and the rest was accomplished by them desperately. 36 /45 (3/3) Contd...

37. REVIVAL OF NATURAL LAW THEORY In the 20 th Century the Natural Law philosophy was revived. As a reaction against the 19th-century legal theories which exaggerated the importance of positive law which caused the need for its revival. The scientists accepted that scientific study is based on certain pre-supposed notions , and in contrast to the concept of time , results of the scientific investigation also changes. It was realized that abstract or priori thinking was not completely futile, as they became guidelines or a code of conduct. With the pace of new emerging and increasing problems, positivists realized its helplessness. 37 /45 (1/3) Contd...

38. REVIVAL OF NATURAL LAW THEORY The result of materialism on the society and altered socio-political conditions compelled to look for some value-oriented ideology which could prevent moral degradation of the people. Both the world wars had created havoc in the world, resulting in withering away of morals, and it was realized that it is the need of the hour to formulate such laws which should be based on Natural Law principles. The desire to restore a closer connection between law and morality. The dissatisfaction with the Command Theory of Law . 38 /45 (2/3) Contd...

39. REVIVAL OF NATURAL LAW THEORY The need for juristic basis for a progressive interpretation of Positive Law. The demand of social theories for sociological interpretation of law. 39 /45 (3/3) Contd...

40. NATURAL LAW & UDHR The principles of UDHR are the perfect example to show the reason why natural law is important, and it exists today. The UN General Assembly adopted UDHR on 10.12.1948 . It came after both the World Wars which took millions of lives and the world incurred a huge economic loss as well.  In the 19 th Century, Positive Law became prominent but after a while, it was felt that Natural Law was equally important . When the war was going on, they adopted some of the basic human rights like freedom of religion , speech, etc. The UDHR committed all member states to promote universal respect for all without any distinction of race, sex, language or religion. 40 /45 (1/1) Contd...

41. NATURAL LAW IN INDIA The most ancient legal system, the Hindu legal system developed a very logical and comprehensive body of law in the early times. A sense of justice pervades the whole body of law. In Ancient India, the high moral law was always seen above the positive law with Universal validity like  Dharma -righteousness, Artha - wealth,  Kama - desires and  Moksha - salvation. According to the Hindu view, Law owes its existence to God. Law is given in ‘ Sruti ’ and ‘Smritis’ . The king is simply to execute that law and he himself bound by it and if he goes against this law, he ought be disobeyed. 41 /45 (1/5) Contd...

42. NATURAL LAW IN INDIA In the ‘ Purans ’ it can be found that whenever the kings went against the Natural Law , they were dethroned. However, with numerous foreign invasions , one after the other, the value and glory of Natural Law got lost. It was finally regained after India got independence through its Constitution. Indian Constitution is based on the pillars of Natural Justice, which is a revised version of Natural Law. Although the Constitution does not specifically talk about the principle of natural justice/law, the provisions are embodied in this sense. 42 /45 (2/5) Contd...

43. NATURAL LAW IN INDIA In the Preamble , the words Justice includes social, economic and political and Equality extends to status, opportunity, etc. prove that Natural Law principles are there in the Indian Constitution. Article 14 ensures equality before the law to all the citizens without any discrimination of any sort. Article 21 guarantees Right to Life and Liberty, which is also the most comprehensive article of the whole constitution, is based on the premises of natural justice . Article 14, 19 and 21 which is also the golden triangle of the constitution has drawn inspiration from natural law. 43 /45 (3/5) Contd...

44. NATURAL LAW IN INDIA In the famous case of Kesavananda Bharti vs. State of Kerala (AIR 1973 SC 1461) the Hon’ble Supreme Court exhibited extreme creativeness and courage and came up with its most innovation in the country‘s constitutional history, the Basic Structure Doctrine , based on affinity towards Natural Law. Some of the features of the Basic Structure are: constitutional supremacy, a democratic and republic form of government, constitutional secularity, federal character of the Constitution, separation of power, mandate to build a welfare state as per the DPSPs , maintenance of the unity and integrity of India, sovereignty of the country, individual freedoms and liberty. Later on, other features were added like free and fair elections, principle of equality, rule of law, powers of the 44 /45 (4/5) Contd...

45. NATURAL LAW IN INDIA Supreme Court under Articles 32, 136, 141 and 142, supremacy of fundamental rights and judicial review. Basic Structure contains the basic essence of Natural Law in the form of democratic institution. Thus, a rights chain emancipating from natural law can be constructed as follows: 45 /45 (5/5) THE END NL FR HR BS