Schools of Jurisprudence

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 Schools of Jurisprudence[1]

Table of Contents

NATURAL LAW SCHOOL[2]

                            QUESTION BANK

Q.1   Discuss Natural Law School.

      Q.2   Explain fully the ‘Natural Law’ theory.

                                        SHORT NOTE

  1. Natural Law

There are a number of legal exponents who have different views about the concept of law, the nature of law and the functions of law. These different views have formed different schools of Jurisprudence. These schools attempt to explain, analyze, interpret and classify the legal ideals, beliefs and philosophy systematically. These schools have propounded their own theories[3] of Jurisprudence.

We will discuss different schools of Jurisprudence –

I. Natural Law – It’s meaning and definition –

The term natural Law is also called ‘Moral Law[4]’, ‘Universal Law[5]’, Unwritten Law’, ‘God made Law’ ‘, the Law of Reason[6]’ or ‘Supreme Law[7]’ etc.

The concept of Natural Law has undergone a number of changes throughout the ages. The major proponents of the various forms of the natural Law theory are Aristotle, Circero, St. Thomas Aquinas, St. Augustine, Stammler, Renard, Martin, Finnis, Dugit etc.

II.        Historical evolution /Meaning acquired by law, time to time.-

            For the sake of convenience, the development of natural Law and meaning acquired by natural law from time to time is studied in the following four stages –

1)        Ancient period / The Greek Period-

           Greek Philosophers developed the idea of ‘natural law’; first in them was Heraclitus.

a.         Haraclitus (530 to 47 B.C.) –

According to Heraclitus, ‘nature is not a scattered heap of things and events. According to him, ‘reason[8]’ is one of the important elements of natural law, which is derived by man from nature.

b.         Socrates (470 to 399 B.C.) –

Socrates was the prominent founder of natural law theory. According to him –

  • like natural physical law[9] (i.e. rising of the sun, falling of rain, growing of trees etc.), there is a natural moral Due to ‘human insight,’ a man has the capacity to distinguish between good and bad. This capacity to distinguish between good and bad is called a moral value or virtue.
  • ‘Virtue’ is knowledge, and what is not ‘virtuous’ is sin.
  • The rules of ‘natural law’ are uniformly applicable to all places.
  • Man-made law (i.e. legal justice or positive Law) should be in consonance with natural law principles[10].

c.         Plato (427 to 347 B.C.)

Plato was a disciple of ‘Socrates’. According to him – “justice lies in ordaining man’s life through reason and wisdom and motivates him to control his passion and desires”[11].

d.         Aristotle (384 to 322 B.C.)

According to Aristotle – Man is a part of nature because he is a creation of God, and he possesses insight and reason, which controls man’s conduct. Therefore, natural law embodies basic principles of justice and morality.

2.         Roman system –

(a) Stoics –

According to him –

  • The entire universe is governed by ‘reason’.
  • Man’s reason is a part of ‘universal’ or ‘supreme reason.’
  • Man lives according to nature if he lives according to ‘reason’.
  • Positive law must conform to natural law.

(b) Ciero –

            According to him –

True law is ‘right reason’ in accordance with nature, unchanging and everlasting, which is universal in its applicability.

Romans classified Law into three categories –

  • “Jus Civile”[12] was a civil or positive law which was applicable to Roman citizens only.
  • ‘Jus Gentium’[13] – The law contained universal principles which were in conformity with natural law. The law was applicable to both citizens as well as foreigners.
  • ‘Jus Natural’ –

       Later on, ‘jus civile’ and ‘jus gentium’ became one and were called ‘jus natural’. In it, Roman citizenship was extended to all except only a few classes of persons.

3.         Medieval Period[14]–

The period from the 12th century to half of the 14th century is called as ‘medieval period’. In the medieval period, Christian fathers gave bust to the theory of natural Law. Among them were Ambrose, St. Augustine, Gregory and the following-

St. Thomas Acquinas –

In the medieval period, prominent among christen fathers was St. Thomas Acquinas. He represented the ‘natural law’ theory as propounded by the church.

According to him –

  • Social organisations and states are natural phenomena.
  • He defined Law as “an ordinance of reason for the common good made by him (God) who has the care of the community and promulgated through reason”[15].
  • Laws are classified as –
    • Law of God or external Law.
    • Natural Law which is revealed through reason,
    • Divine Law or the law of scriptures,
    • Human laws, which we now call ‘positive law’.
  • Positive law (or man-made law) must conform to the natural Law.
  • The church is the authority to interpret natural Law.

4.         The period of Renaissance[16] –

The era of the renaissance (between the 14th to 16th Century) marked social, political and spiritual revolutions. In this era superiority of the Church and the King disappeared, and the liberties of the individual became prominent. New theories supporting the sovereignty of the state were propounded.

According to political thinkers during that period, the ‘social contract’ was the basis of society. Important political thinkers during the renaissance period were as follows –

1.         Hugo Grotius –

  1. He formed principles of International Law which were known as pacta sant servanda, i.e. respect to treaties (agreements) among countries[17].
  2. He defined natural law not just based on ‘reason’ but on ‘right reason’.
  3. He upheld the authority of the King and wrote that ‘howsoever bad a ruler may be, it is the duty of the subject to obey him’.
  4. However, the ruler is bound by natural law.
  5. Man, by nature, is peace-loving and desires to live according to the dictate of reason. He, therefore, advocates natural law as immutable (not- changeable), even by God himself.

2. Thomas Hobbes-

            According to him-

  1. Natural law was based on man’s natural right of self-preservation and property.
  2. He used natural law to justify the absolute authority of the ruler by endowing him the power to protect his subject.
  3. ‘Social contract’ was the basis of his theory.
  4. According to him, natural law lacks sanction (i.e. force of State).
  5. Prior to ‘the social contract (i.e. in the state of nature), man lived in chaotic conditions of constant fear. In the state of nature, man’s life had become “solitary, poor, nasty, brutish and short”. To overcome this situation, men voluntarily entered into a contract and surrendered their freedom to the mightiest authority (i.e. King or Ruler) who could protect their lives and property.
  6. According to him, “Government without the sword are but words, and of no strength to secure a man at all”. Thus, according to him, civil law (law made by the State) is the only law.
  7. ‘Positive law’ theory of Austin is based on Hobb’s notion.

3) John Locke –

Characteristics of his theory –

  1. He interpreted natural Law and social contract[18] differently to protect the rights of the individual against the absolute power of the King or Ruler.
  2. He had witnessed the Glorious Revolution of 1688 and individualism in England.
  3. According to him, in the ‘state of nature’, man’s property was not secured. Therefore, to protect property, a man entered into a ‘social contract’, surrendering few (and not all rights) to the ruler.
  4. Thus, the natural rights of man, i.e. the right to life, liberty and property, remained with him, and he surrendered only two rights, i.e. maintaining order and enforcing the law of nature.
  5. According to him, the purpose of the State and Law was to uphold and protect the natural rights of men.
  6. So long as the State fulfils these purposes, its’ laws are valid and binding, but when it ceases to do so, people (subjects) have a right to revolt against the Government and overthrow it.
  7. According to him, the above-mentioned rights are inalienable and necessary for the well-being of the individual.
  8. He propounded the doctrine of ‘laissez faire’, i.e. individual freedom in matters relating to economic activities.

4) Jean Rousseau –

  • He described ‘social contract’ not as a historical fact but merely a hypothetical conception.
  • According to him, prior to the ‘social contract’, the life of man was happy, and there was equality among them. People united to preserve their rights of freedom and equality, and therefore, people surrendered their rights not to a single individual, i.e. sovereign but to the community as a whole, which Rousseau called ‘general will’. Thus, the State and law are the products of the ‘general will’ of the people and not of ‘reason’. ‘State’ and ‘law’ are subject to the general will, and if the ‘Government’ and ‘Laws’ do not conform to the ‘general will’, they will be discarded.
  • His thoughts which led to the French Revolution and the American war of Independence generated a wave of nationalism in Europe and America.

5) Immanuel Kant –

1) Kant further supported natural Law and social contract theory in the 18th Century.

2) According to him, the basis of a social contract is ‘reason’, and ‘social contract’ is not a fact.

3) Kant drew a distinction between ‘natural rights’ and ‘acquired rights’. According to him, natural rights are necessary for the freedom of the individual.

4) He supported the separation of powers. According to him, the foundation of the state lies in the protection of the Law.

5.         Modern Period –

A)      19th Century Declining of Natural Law Theory-

The natural law theory received set back in the 19th century. The analytical schools rejected natural law on the ground of ambiguity and misleading. According to them, the ‘law’ and ‘morality’ are different things. According to them, the ‘social contract was a myth’. Therefore in a true sense, principles of natural law started declining in the 19th century.

David Home –

David home rejected the theory of natural law, alleging that it was vague and obscure. August Compte further struck a severe blow to the natural law theory. He denounced natural law theory as false, non-scientific and based on supernatural beliefs.

According to Hume, the concept of ‘reason’ in ‘natural law’ is confusing. He gave more importance to collectivism than individualism.

The emerging historical school considered ‘law’ as a product of people’s conscience. Thus, it gave a further blow to ailing natural law theory.

B) 20th-Century Revival of Natural Law theory[19] –

Both analytical and historical approaches proved disastrous to the cause of justice, liberty, freedom and democracy in the 20th century. ‘Positive Law’ school and its thoughts failed due to the refusal to non-acceptance of ‘morality’ and ‘reason’ as elements of Law. Similarly, exaggerated importance to the historical approach gave undue importance to the cultural and social characters of the legal system. It gave rise to fascism in Italy and Nazism in Germany. It leads to the word war.

The situation required a value-oriented ideology to prevent moral degradation of the people, which paved the way for the revival of natural law theory in the 20th century.

The main exponents of the newly revived natural law theory are as follows –

1)       Rudolf Stammler (1856 to 1938) –

  1. Stammler defined ‘law’ as a “species of will, giving respect to the will of others, self-authoritative and inviolable”.
  2. According to him, the law should be ‘just’. For him, ‘just law’ was the highest expression of man’s social life, and it aimed at the preservation of freedom of 5.
  3. According to him, two fundamental principles necessary for just law are (i) the principle of respect and (ii) the principle of community participation.
  4. According to him, the law of nature means ‘just law’, which harmonizes the purposes in society. The purpose of Law is not to protect the will of one person but to unify the purposes of all.
  5. He calls revised natural Law a ‘natural Law with variable contents’.

2)        Prof. Rawls –

He propounded two basic principles of justice viz-

  • Equality of rights, securing generalized wants including basic liberties, opportunities, power and minimum means of subsistence.
  • Social and economic equalities should be arranged so as to assure maximum benefit to the community as a whole.

3)        Francois Geny –

  1. He believed that Law has to be relativistic and not static or immutable like the 19th-century natural Law.
  2. He underlined the importance of judicial decisions in moulding the legal system.

4) Kohler –

  1. He 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[20].’
  2. He tried to make 20th-century natural law realistic, adapting itself to the charging norms of society.

5) Fuller –

  1. According to Fuller, ‘law and morality’ are co-related.
  2. He said good order is a law which corresponds to justice or morality.
  3. He brought out an excellent exposition of legal positivism and natural Law.
  4. He pointed out that the essence of positivism lies in a sharp distinction between Law ‘as it is[21]’ and a law ‘as it ought to be[22]’, whereas natural law theory denies this rigid separating of ‘is’ and ‘ought’.
  5. According to Fuller, “Law is a purposive system[23]”. The purpose is to subject human conduct to the control and guidance of legal rules”.
  6. He laid down eight principles of inner morality of Law.

III.       Merits of Natural Law theory –

1.  Based upon morality and reason, justice and conscience –

Natural Law theory is based upon justice, morality, conscience and reason; hence, it provides a sound basis for human conduct. They are the guiding principles for marking positive law.

2. Freedom struggles were based upon natural Law concepts –

The French revolution and American Revolution, the Indian freedom struggle etc., had their roots in natural law concepts.

3. Basis for fundamental rights –

Fundamental rights in almost all constitutions are the outcome of natural principles. In the absence of fundamental rights, man cannot live life to the fullest extent.

4. Control bad regimes –

Natural Law principles were used to throw out bad, cruel and oppressive regimes. All were bound to follow the principles of natural law. Even in India, there was ‘Raj-Dharma[24]’ to lay check on the king.

5. Justification in resisting bad Laws –

According to Naturalists, ‘ immoral law is no law’. Hence, bad laws are to be resisted and removed.

6. Limits powers of the legislature –

Principles of natural justice limit the scope of the legislation. Legislature cannot make bad laws. The power of judicial review of legislative action by the Supreme Court lays a check on immoral, unethical, and unconstitutional law-making by the legislature.

7. Natural Law provides a guideline for positive Law –

Natural Law principles of justice, equity and good conscience provide guidance for good legislation.

8. Principles of natural justice apply to administrative actions also –

The principles of justice, equity and good conscience apply not only to legislative actions but administrative actions also.

IV.       Demerits/criticism against natural law theory –

1. No distinction between ‘Law’ and ‘Morality’ –

The natural Law theory confuses ‘law’ with ‘morality’. In fact, in the present day, there is a distinction between law and morality. In reality, what is immoral may not be illegal.          In Payal Sharma’s case[25] – The division Bench of Allahabad High Court held that- a man and a woman, without marriage, can live together (if they wish), this may be regarded as immoral by society, but it is not illegal.

Moreover, the concept of morality changes from time to time and from place to place. Thus the concept of morality is not fixed.

2. Authority to decide what is moral?

            There are two important questions regarding morality which are very difficult to be answered. The very first question is, what is morality? And second, who shall decide as to what act is moral and what not?. Those questions create chaos in society.

3. Might is right-

            According to nature, ‘might is right’; hence powerful superiors go on concurring inferiors. They justify their conduct on natural right theory, i.e. ‘might is right’. This justification creates disorder in society.

4. Encouragement to disobey laws-

             Might is right concept gives rise to disobeying laws.

5.  Natural law principles are static and unchangeable-

            To be effective, the law must change according to the changing society. The needs and morality of society change from time to time and place to place; therefore, the law should also change according to changing society.

However, natural law principles are static and unchangeable and therefore become redundant.

6. Existence of God-

             Natural Law theory believes in the existence of God. They believe that law emanates from God. However, it is difficult to prove the existence of God.

7. Reason as a source of Natural Law-

            According to natural law, the source of it is a ‘reason’ or ‘right reason’, which man derives from nature. However, the reasoning capacity of an individual or of ‘society’ differs from time to time and from place to place. Therefore, the concept of ‘reason’ as a source of the law becomes a myth.

V. Natural Law in England, America, and India-

a) Natural Law in England-

            Even though Natural Law has not flourished as a legal theory in England, its principles were found in the body of English Law. The concepts like ‘quasi-contract’, ‘unjust enrichment’, ‘trust’ etc., are founded on natural law principles. Similarly, the principle of ‘justice, equity and good conscience’ is based on natural law. These principles had a great influence on the development of the law of equity and common law. Moreover, the doctrines of judicial control of administrative action, conflict of laws, recognition of administrative action, and foreign judgments are based on natural law principles.

b) Natural law in America-

          There is a great influence of natural law principles on the American Legal System. American war of independence was justified on a natural law principle as a revolt against an irresponsive ruler. The American Bill of Rights, which guarantees certain fundamental or inalienable rights, is an outcome of natural law principles. The concept of judicial review of legislative and administrative actions is a notable principle of the American system, which is largely based on natural law principles.

c) Natural law in India-

  In Ancient India-

            In ancient India, the principles of natural law were called the principles of “Dharma”. These principles were of a righteous code of conduct. The concept of dharma was a code of conduct, or duties of a man towards God, sages, other persons, animals and other creatures. There was the concept of ‘Raj-Dharma,’ i.e. code of conduct for kings. Kings were supposed to live according to those principles of conduct. Vaidic philosophy also expects certain codes of conduct from people.

In British India

            During the freedom struggle, Gandhiji emphasised natural law principles of truth, non-violence and righteous conduct.  Indian freedom struggle was guided by these natural law principles. In British rule, the British brought their pattern into the legal system. Natural law principles of justice, equity and good conscience were applied in British India to some extent.

In Independent India-

            After independence also Indian legal system was, by and large, based on the English pattern. The principles of natural law were applied in administrative and judicial actions. The law of trust, specific relief, the doctrine of election, and the rule against perpetuity are based on natural law principles of justice, equity and good conscience.

            The principles of natural law are prominent in the Indian Constitution. The provisions relating to the preamble, fundamental rights, and directive principles are based on natural law principles. Similarly, the principles like equal justice and free legal aid, workers’ participation in management, right of the minority, right to religion etc., have implanted natural law principles in the Indian Constitution.

In Keshvananda  Bharti Vs. State of Kerala[26]

SC Held that- ‘the fundamental rights are not absolute and immutable but changeable in order to build a ‘just’ social order. It has further held that basic structure (pillars of the constitution like democracy, equality etc.) should not be changed by amendments.

In Maneka Gandhi Vs. Union of India[27]

SC held that- natural law principles are applicable not only in judicial and quasi-judicial actions but in administrative actions also.

      For speedy justice and equality in the justice delivery system number of forums like Administrative Tribunals, Family Courts, and Consumer Forums have been set up. Free legal aid is provided to poor persons and the accused. All these concepts are based on natural law principles, guided towards the creation of just, equal and social order.

In the Board of Control for Cricket in India v. Cricket Association of Bihar (AIR 2015 SC 3194) Supreme Court held that “the rule that ‘no one can be a judge in his own case is a facet of natural law. It applies equally to administrative and quasi-judicial actions. The administrative action of the Cricket Board (BCCI) is subject to this rule.

            Similarly, no one can be condemned unheard, i.e. both parties must be heard, and reasoned decisions are the important principles of natural law, which are the bedrock of the present-day Indian judicial system.

VI. Conclusion:-

            In spite of the adverse situation in the 19th century, the Natural law theory has performed very well since ancient times. The following characteristics of natural law theory have worked well in maintaining social order viz-

(i) Natural Law is based on man’s natural right of self-preservation and property.

(ii) Natural Law is revealed through ‘reason,’ i.e. the capacity of man to understand the difference between right and wrong. Man is expected to live with the right reason, which he derives from nature. Natural law is eternal.

(iii) Justice, equity and good conscience are the pillars of natural law.

 (iv) Fundamental rights, like the right to life and personal liberty, are based on natural law.

*****

[1] न्याय षास्त्रातील शाखा / विचार प्रवाह [  न्याय शास्त्र में विचार की शाखाएँ / धाराएँ ]

[2] नैसर्गिक कायदा [प्राकृतिक कानून ]

[3] शिध्दांत [सिद्धांत ]

[4] नैतिक कायदा  [नैतिक कानून ]

[5] सार्वत्रिक/वैष्विक कायदा [  यूनिवर्सल/कॉस्मिक लॉ ]

[6]  सद्सद्विवेक बुध्दीचा कायदा/विवेक ष्कतीचा कायदा [चेतना का नियम / विवेक का नियम ]

[7] सर्वोच्च कायदा [  सबसे बड़ा कानून ]

[8] योग्य, अयोग्य जाणन्याची बुध्दी/ सद्सद्विवेक बुध्दी मनुश्यास निसर्गाकडुनच येते [सही और गलत को जानने की बुद्धि मानव स्वभाव से आती है। ]

[9] नैसर्गिक भौतिक कायदा [प्राकृतिक भौतिक नियम ]

[10] मनुष्य निर्मित कायदा / कायदे मंडळाने बनविलेला कायदा हा नैसर्गिक कायदयाच्या तत्वांषि सुसंगत असला पाहीजे [कानून के एक निकाय द्वारा बनाए गए मानव निर्मित कानून / कानून प्राकृतिक कानून के सिद्धांतों के अनुरूप होने चाहिए ]

[11] न्याय मनुश्याच्या जिवनाला सद्सद्विवेक बुध्दी व शहानपनाने आकार देऊन त्यास स्वतरू च्या भवना व इच्छांवर नियंत्रण ठेवण्याची प्रेरणा देतो [न्याय मनुष्य के जीवन को तर्क और ज्ञान से आकार देता है और उसे अपनी भावनाओं और इच्छाओं को नियंत्रित करने के लिए प्रेरित करता है। ]

[12] रोमण नागरिकांसाठीचा कायदा [रोमन नागरिकों के लिए कानून ]

[13] सर्व नागरिकांसाठीचा कायदा [सभी नागरिकों के लिए एक कानून ]

[14] मध्ययुगाीन कालखंड [मध्यकाल ]

[15] कायदा म्हणजे सदसदविवेक बुध्दी किंवा षहाणपणाचा कायदा की जो अषांनी (ईष्वरांनी) बनविलेला असतो की ज्या संपूर्ण समाजाची [कानून सामान्य ज्ञान या ज्ञान का कानून है जो आशाओं (देवताओं) द्वारा बनाया गया है या जिसके द्वारा पूरा समाज शासित होता है। ]

[16] The revival of art and literature under the influence of classical models in the 14th to 16th Century.- 14,15,16 व्या

   शतकातील विदयेचे पुनरजिवनाचा काळ [16 वां अकादमिक पुनरुद्धार की एक सदी ]

[17] देशामधील करारांचा आदर करणे [अकादमिक पुनरुद्धार की एक सदी ]

[18] सामाजीक करार की ज्या माध्यमातून राश्ट्र व त्यांच्या विविध शाखा, प्रषासन, न्याय, कायदा इ. तयार केल्या. [वह सामाजिक अनुबंध जिसके माध्यम से राष्ट्र और उसकी विभिन्न शाखाएँ, प्रशासन, न्याय, कानून आदि का संचालन होता है। तैयार ]

[19] नैसर्गिक कायदयाचे पुनरूज्जीवन. [प्राकृतिक कानून का पुनरुद्धार। ]

[20] आदर्श वर्तनुक की जी चांगले जिवन जगाण्याच्या अपेक्षेतुन पुर्णत्वाकडुन मनुश्याकडे येते [आदर्श व्यवहार जो मनुष्य को अच्छा जीवन जीने के नजरिए से आता है ]

[21] जसा आहे तसा [ज्यों का त्यों ]

[22] कसा असायला हवा [यह कैसा होना चाहिए ]

[23] हेतु पुरस्सर असनारी व्यवस्था [पर्याप्त स्थान के बिना एक प्रणाली ]

[24] राजधर्म [राजधर्म ]

[25] Payal Sharma Vs. Superitendent, Nariniketan Vihar   AIR 2001 ALL 254

[26] AIR 1973 SC 1461

[27] AIR 1978 SC 597

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