NATURAL LAW

UNIT 1
 WHAT IS NATURAL LAW?

• The term natural law is derived from the Roman term “jus naturale” which
means a system of law based on fundamental ideas of right and wrong.
Adherents to natural law philosophy are known as naturalists.
• It is the unwritten body of universal moral principles that underlie the ethical
and legal norms by which human conduct is sometimes evaluated and governed.
Natural law is often contrasted with positive law, which consists of the written
rules and regulations enacted by government.
• In legal theory and in ancient Hindu, Greek and Roman Law, natural law has a
primitive place.
 WHAT IS NATURAL LAW?

•Natural law as considered by its supporters is that law, which is inherent in the
nature of man or society, and is independent of convention, legislation or other
institutional devices.

• The phrase natural law however has a flexible meaning.

 NATURAL LAW v. LAW OF NATURE

•Law of Nature is Universal in nature.

•Though law of nature and natural law more or less are the same concept, but its
meaning and nature has been varying, confusing and self-contradictory.
•In the natural sense, Law of Nature has been understood as synonym to
physical universe, it has been used in the sense of natural reason, a law which
conforms to the natural order of the universe.
•But in pure sense natural law has been correspondingly used with force or
physical power to moral, ideal or law with varying content or social justice.
 NATURAL LAW IN MODERN ERA
The concept of:
• the Rule of law in England,
The rule of law is a fundamental doctrine by which every individual must obey and submit to the
law, and not arbitrary action by other people of groups. In essence, no one is above the law. The
United Kingdom does not have a written constitution. The rule of law, along with Parliamentary
Sovereignty and court rulings, is fundamentally the defining principle of the ‘unwritten constitution’.
• the due process of law in the United States and
Due process of law in government is a constitutional guarantee that actions of the government will
not impact its citizens in an abusive manner. As applied today, due process dictates that all courts
must operate under a clearly defined set of standards crafted to protect peoples' personal liberty.
(Fifth & Fourteenth Amendments)
• the procedure established by law in India
embody juristic traditions of natural law philosophy wherein the sovereign body must act under law
in the admiration of justice.
 NATURAL LAW BEGINNING WITH GREEKS

• The idea began with the ancient Greeks' conception of a universe governed in
every particular aspect by an eternal, absolute law and in their distinction
between what is just by nature and just by convention.

• Natural law is that set of principles of human conduct which has some kind of
immutability (which cannot be changed)- a principle based on reason, or ‘divine
of God’ or on a supposed social contract.

• It were Greek who gave a conception of universal law for all man kind under
which all men are equal, and which is binding on all the people.
 Greek philosopher Aristotle’s view

• Greek philosophy emphasized the distinction between "nature" on the one hand and
"law", "custom", or "convention" on the other.

• What the law commanded varied from place to place, but what was "by nature"
should be the same everywhere.

• According to him law is either universal or special.

Special law consists of written enactments by which men are governed. The universal
law consists of those unwritten rules which are recognized among all men…Universal law
is that which conforms to Nature alone.

• He popularized the maxim ‘Live according to nature’

 Stoic Natural Law

Stoicism is a school of Hellenistic philosophy founded by Zeno of Citium in Athens in the

early 3rd century BCE. Stoicism is a philosophy of personal ethics informed by its system
of logic and its views on the natural world.

The Stoic Natural Law was indifferent to the divine or natural source of the law: the
Stoics asserted the existence of a rational and purposeful order to the universe (a divine
or eternal law), and the means by which a rational being lived in accordance with this
order was the natural law, which spelled out action that accorded with virtue.

Natural law first appeared among the stoics who believed that God is everywhere and in
everyone (pantheism). According to this belief, within humans there is a "divine spark"
which helps them to live in accordance with nature. The stoics felt that there was a way
in which the universe had been designed, and that natural law helped us to harmonise
with this.
 ROMAN PERIOD

Romans were far greater legal scientists than their counterpart, the Greeks.

The Romans accepted Greek conception of natural law and used it as an

instrument of legal development and legal reform.

According to Salmond, jus gentium means the law of nations was a purely Roman
idea attained by Roman lawyers long before and knowledge of jus naturale has
come to them from Greek philosophy .
 MEDIEVAL PERIOD

• In this era the churches were regarded as the supreme authority and there is a
universal desire to maintain peace and harmony after a long spell of chaos and
confusion due to religious wars.
• So to preserve stability and expound supremacy of Roman Church both as
highest temporal and religious power the theory of natural law comes in defence
of prevailing social system.
• At this time, the Pope acquires complete control over all beings- whether
political or spiritual spheres.
 MODERN PERIOD
• In the fifteenth century when the authority of church is diminishing new
concepts of natural law started to being.
• Hugo Grotius and Hobbes initiated a new legal theory which disregarded divine
will as irrelevant on the in the philosophy of law.
• But in nineteenth century David Hume demolished the law of nature and said
law is human conventions.
His philosophy have a huge impact on Jeremy Bentham.
• The development of the doctrine of sovernity and Monstesquieu’s Esprit of law
have a great impact on French Revolution and dramatic achievement in physical
sciences by Darwin’s evolutionary hypothesis changed the old concept.
• It was Auguste Comte who stated that by analysis, interpretations and
observations we can achieve the social justice.
 PROBLEMS WITH NATURAL LAW THEORY

1. One of the difficulties for natural law theory is that people have interpreted nature differently? Should this be
the case if as asserted by natural law theory, the moral law of human nature is knowable by natural human reason?

2.How do we determine the essential or morally praiseworthy traits of human nature? Traditional natural law
theory has picked out very positive traits, such as "the desire to know the truth, to choose the good, and to
develop as healthy mature human beings”. But some philosophers, such as Hobbes, have found human beings to
be essentially selfish. It is questionable that behavior in accordance with human nature is morally right and
behavior not in accord with human nature is morally wrong. For instance, if it turns out that human beings (at least
the males) are naturally aggressive, should we infer that war and fighting are morally right?

3. Even if we have certain natural propensities, are we justified in claiming that those propensities or tendencies
should be developed? On what grounds do we justify, for example, that we ought to choose the good?

4. For Aquinas, the reason why nature had the order it did was because God had put it there. Other thinkers, such
as Aristotle, did not believe that this order was divinely inspired. Does this alleged natural moral order require that
we believe that there is a God that has produced this natural moral order? Evolutionary theory has challenged
much of the basis of thinking that there is a moral natural order, since on evolutionary theory species has
developed they way they have out of survival needs.
 PROBLEMS WITH NATURAL LAW THEORY

5 It is doubtful that one can infer moral principles forbidding adultery, rape, homosexuality, and so forth,
either from biological facts about human nature or from facts about the inherent nature of Homo sapiens.

6. Critics of natural law theory say that it is doubtful, however, that the inherent nature of Homo sapiens
establishes laws of behavior for human beings in the same way as it may establish laws of behavior for cats,
lions, and polar bears. It is especially difficult because so much of human behavior is shaped by the
environment, that is, by deliberate and nondeliberate conditioning, training, and education.

7. Two philosophers (Aquinas and Aristotle) integral to the theory have different views about god’s role in
nature, which confuses the issue, especially when trying to decipher if the theory relies on the existence of
god.

8. The intrinsic nature of humans as it pertains to establishing laws of behavior may not be the same for
animals, which presents difficulties within the theory.

9.. Human behavior may be solely reliant upon the environment that one is exposed to, which includes social
classes, education and upbringing, this opposes the theory.
 NATURAL LAW- INDIAN CONTEXT
The most important concepts that India borrowed from English law are:
1. No one shall be a judge in his own cause (Nemo debet esee judex in propria
sua causa)
2. No one should be condemned unheard (Audi Alteram Partem)
• In our constitution Part III and Part IV deals with some of the natural laws of
fundamental rights and duties and directive principles of state policy.
• Then Article 226, 227, 32 and 136 gives the rights to upheld these rights.
• The essence of natural law has been expounded by the Supreme Court in
Kesavanada Bharti which overruled Golak Nath.
In Golak Nath the court had held the view that fundamental rights and
constitution are unamendable and cannot be struck down by parliament.
But In Kesavananda Bharti the supreme Court held the parliament can amend the
provisions but cannot change the basic structure of the Constitution.