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5/10/20

Natural Law School: Natural Law Theories of Jurisprudence ||

Natural Law School: Natural Law Theories of Jurisprudence ||


        In this article, we will discuss Natural law school of Jurisprudence and its theories.



Introduction:-

                        Natural law thinking has played a wide role in the fields of ethics, politics and law since ancient times. As seen by many jurists, it is essentially a claim to believe in a standard of values.
        Jurists of different ages gave different meanings to the term natural law. For the Stoics, this is the divine law (Jus divindum) —the command of God imposed on men. For Cicero, natural law is the rule of reason, because it is established by the reason by which the world is controlled and addressed and perceived by the rational nature of men. For Aristotle and Thomasius it is also in a sense of expression the unwritten law (jus non scriptum), as written not on Brazen tablets or stone pillar, but entirely with the finger of nature in men's hearts. It is also universal or common law (jus commune, jus gentium) as universal legitimacy, equal in all places and binding on all people and not one thing in one place and in another place, just as civil law states. . For Hookes, this is the Eternal Law, as has existed since the beginning of the world, uncreated and unchanging, while for modern-day jurists natural law consists primarily of the principles of morality.

Theories of Natural law:-

Natural law can be broadly divided into four classes:
1.   Ancient theory
2.   Medieval theory
3.   Doctrine of renaissance
4.   Modern theory

1.   Ancient Theories:-

Greece:-
                Greeks were the first propounder of natural law principles. Greek thinkers developed the idea of ​​natural law and determined its essential characteristics. In Greece at the time, there was great political instability. Two trends of thought existed among Greek think. Firstly, it was thought by many that the law was designed only to serve the interests of the law maker or strong and the only reason for obedience to law was the self- interest of the subject. But, secondly, that same situation forced some other jurists to think in other ways, they called it seen as an opportunity to developing new universal principles that will deal with and control the tyranny and arbitrariness of government and which could give it stability.

Socrates, Plato, Aristotle and Zeno, all belong to this school of thought.

Socrates' perspective on natural law:-
        Socrates believed that just as natural physical law is, so is natural law. In his concept of natural law, man has his own insight, which tells him about those things, whether good or bad, it is according to that insight that man is able to develop moral values ​​in himself, the only way to judge the basis of law according to Socrates is the “insight of man”. Through his doctrine, Socrates wanted to ensure peace and stability in the region which was one of the major demands of the time.

Rome:-
Stoics view on natural law:-
        Stoics was inspired by Aristotle's theory and developed his theory of natural law based on Aristotle's theory but made some important changes and made it more ethical. According to him, the world operates because of reason. Man's reason is also a part of this world, so when he lives according to reason, he lives according to nature or lives naturally. One of the duties of man is to follow the law of nature as per the Stoic law of nature is binding for all and the positive law must conform to the natural law.

Effect of Stoics theory:-
                                        Stoics theory had a great influence on jurists during the republican period, as many jurists began to pay more attention to natural law. Natural law helped the Roman people transform their rigid lives into a cosmopolitan one. Sometimes the Courts of Rome also applied the principle of natural law to deal with matters involving foreigners, in a way that natural law helped the development of Roman law.


Roman Jurists classified law of Rome into three broad categories:-
        Among the ancient Roman jurists, three divisions of law were found: 'jus civile'; 'jus gentium'; and 'jus naturale'. Roman civil law or 'jus civile' was only for Roman citizens, but on the 'natural law' principle Roman magistrates applied rules which were common with foreign law to foreign citizens also. The body of law which developed in this way was also called; 'jus gentium' and it became part of Roman law. It represented well-meaning and universal legal principles and, therefore, conformed to 'natural law'.
        Later, 'jus civile' and 'jus gentium'  became one when Roman citizenship was extended to all except a few. But even then there was a concept of natural law that did not undergo new change because slaves were still deprived of the benefits of the new law.
        Roman lawyers did not trouble themselves with the problem of conflict between 'positive law' and 'natural law'. Although there were some jurists who considered 'natural law' to be 'superior to positive law' and suggested that affirmative law might be disregarded in case of conflict between the two, most jurists did not enter into this question.

2.   Medieval Theories:-
Aquinas:-
                        Catholic philosophers and theologians moved away from orthodox interpretations of natural law and gave a more logical and systematic theory of natural law. Thomas Aquinas defined the law as obedience to the cause of the general good that he did, which the community cared for and promulgated. He divided the law into four stages.
1)   Law of God
2)   Natural law
3)   Divine law
4)   Human laws

        Natural law is the part that manifests itself for natural reasons. It is applied by humans to conduct their affairs and relationships. According to Aquinas positive law must conform to natural law, positive law is valid only to the extent that it is compatible with natural law.

Merits of Aquinas theory:-
                                                        Thomas Aquinas completely mixed Aristotle's theory with that of Christian faith and created a very elastic and logical theory of natural law. He pleaded for the establishment of the Church's authority over the state, according to him, even the sovereign has limited powers. He identified natural law with reason, sanctified social and political organization, and worked hard to preserve social stability. Catholic modern jurists have built on Aquinas's doctrine but modified his doctrine according to changing needs and circumstances.

3.   Renaissance Theories:-
                        This period saw major changes in all aspects of knowledge, this period breaking the foundations of values ​​marked by the emergence of new ideas, new branches of knowledge and discoveries of science. Secondly, due to development in the field of commerce, new classes emerged which wanted more protection from the states. This gave rise to the concept of nationalism. All these factors combined to overthrow the dominance of the church. New theories supporting the sovereignty of the state began to emerge. The reason was the foundation of all these principles. The natural law principles of this era also have certain characteristics. This theory proceeds with the belief that a social contract is the basis of society.

Theories of Social Contract:-
                                                Social contract theory determines a state of nature, with various philosophers describing their state of nature. In simple terms, the state of nature is the condition before entering into a contract, 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. These philosophers are:
    I.        Thomas Hobbes
  II.        John Locke
III.        Rousseau

Thomas Hobbes:-
Hobbes State of nature:-
                                        Under his state of nature, man lived in a chaotic state, according to him; in the state of nature man's life was fear and selfishness. It was solitary, dirty, cruel and short.

Hobbes Contract:-
                                Under the prevailing conditions, the people entered into a contract, under which they handed over all their rights to one person, to relieve their suffering. The law of nature can be traced to the reason which says what a man should or should not do. Man has a natural desire for security and order, this can only be achieved by establishing a superior authority which must be a commanding authority. He, therefore, advises the sovereign that he must command with natural law.

John Locke
                        Locke's perspective on the state of nature was completely different from Hobbes's. He also interpreted natural law differently. Locke was in favor of individualism and therefore, for him, natural law meant giving individuals more power than sovereign. Locke's state of nature was a golden age for humans, but as society grew and people began to establish the concept of property, people became insecure about their wealth.

                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 to maintain order and enforce the law of nature. Natural rights such as freedom, property and right to life were to be maintained by man.

                Locke stood for individual liberty and advocated that the powers of the sovereign are not unlimited. According to Locke, the person has the right to protest against the sovereign if he is unable to protect the rights of the individual, then individuals also have the right to overthrow the current government. According to him, a person's rights to freedom, property, and life are basic natural rights and the sovereign must realize these rights and make a decision, taking into account the rights described above.

Rousseau
Rousseau’s state of nature:-
                                                Under Rousseau, natural law and social contract received a new interpretation. For him, a social contract is a hypothetical construction of reason. Before the social contract, man lived a happy life, there was equality among men.
Rousseau’s Contract

        According to Rousseau, humans entered into a contract for the protection of rights of equality and freedom, they delegated their rights not to one person, but to the whole community, which Rousseau states as common will.

Theory of General Will:-
                                                According to Rousseau, it is the duty of a person to obey the general will because in this way he is following his own will. The government and laws made must conform itself with the general will and if they are not able to so that they could be overthrown, in short, Rousseau stood for the interest of the community, rather than the interest of the individual, for his natural law theory Stood for equality and freedom of men.

4.   Modern theories:-
Nineteenth-Century:-
The decline of Natural Law theories:-
                                                        The 19th century saw the decline of natural law, the natural law theories reflected more or less the great economic and political changes which had taken place in Europe. Reason or rationalism was the spirit of eighteenth-century thought. The problems created by new changes and developments demanded political and concrete solutions. Individualism gave rise to a collective view, modern science and political theories began to propagate that there are no absolute and immutable principles. Many historians rejected the social contract theory, saying it was a myth. All these factors gave natural law a strong shock.

Twentieth Century:-
The revival of Natural law theories
During the end of the 19th century, we saw the revival of natural law theories mainly for the following reasons:
a.   It emerged as a backlash against legal theories that exaggerated the importance of positive law.
b.   It was felt that abstract thinking was not completely redundant.
c.   Positivist theories failed to solve problems created by changed social conditions.
d.   It also led to the revival of the ideologies of fascism and natural law theories, because at that time during the two world wars, the world witnessed the great destruction of human life and property and the principles of natural law were approached to achieve peace.

Conclusion:-
                        A special study of the principles of natural law reveals one thing that the concept of natural law has changed from time to time. It has been used to support almost every ideology whether it is absolutism or individualism. It has also inspired various revolutions. Natural law has also influenced the development of positive law. The study of law will be incomplete if it fails to meet its ends, with natural law principles focused on achieving the ends of the law. Hence it can be said that natural law principles are embedded in the legal system of almost every country.

In India the constitution gives certain fundamental rights like the right to life, right to equality etc, all these rights are also based on the principles of natural law, not only this the principle of natural justice is also based on the principles of natural law. In the end, it could be said that the natural school of law has made a great contribution to the legal jurisprudence of the world including India.

References:-



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