Natural law is the law that state that human by nature reason a lot. It is a philosophical theory that believes humans have certain rights and moral values that are inherent to them. Natural law is professed to be a universal concept and is not based on any custom or culture. The ideology that natural law portrays out is that human beings inherently know what is right and what is wrong, they can distinguish it out through reason. They do not have not to be taught what natural law is, it is innately present from birth.
Natural law has been used to both support a change and maintain a status quo, an example of this is Locke used natural law to support a change and Hobbes used natural law to maintain the status quo. Natural law was present from ancient times and we can even find traces of it in the current legislative texts. In England and India, natural law can be found in the concept of rule of law and in the USA, it can be found in the concept of due process.
Natural law is termed as the law of reason and the divine law, here a general question might arise, how can natural law be termed as both divine law and the law of reason. Isn’t it natural to think that if natural law is the law of reason then questioning the existence of God is clearly based on our reasoning, if this is the case wouldn’t it be contradictory o the whole concept of divine law and the law of reason?
However, Stephen pope in the article reason and natural law states that theological ethics and natural law are connected for two reasons, one is that there is an increase of moral realism which states that moral standards are based in reality and it is objective in nature rather than being manufactures out of human decisions. The second reason is that natural law has a universal scope and it applies to all human beings irrespective of their financial status.
This article will be an analysis of the natural law in various periods along with the recognition of natural law by various philosophers.
Natural Law Theory in the Roman period
The Romans did not merely restrict their study of ‘Natural Law’ to theoretical debates but took it further by transforming their rigid legal structure into cosmopolitan living law to give it a functional form. In this way, through the division of Roman law into three different classes, namely ‘Jus civile’, ‘Jus gentium’ and ‘Jus naturale’, natural law exerted a very positive influence on Roman law.
Later, when Roman citizenship was expanded to all but a few groups of individuals, both of these were combined to be regarded as ‘Jus naturale.’ The question of disagreement between ‘Positive Law’ and ‘Natural Law’ was not bothered by Roman lawyers. The question of disagreement between ‘Positive Law’ and ‘Natural Law’ was not bothered by Roman lawyers. While there was a common feeling that natural law based on reason and conscience was superior to positive law, the latter should be disregarded in the event of a dispute between the two.
Natural Law Theory in India
Probably the world’s most ancient legal structure is the Hindu legal system. At a very early point, they established a very logical and thorough body of law. The whole body of law is pervaded by a sense of justice.’ But its systematic and natural development was stopped by frequent changes in the political structure and government and numerous foreign invasions, one after the other. No sufficient attention could be paid to the study of this legal framework under International Law. It is still unknown, uninvestigated, with several hypotheses and concepts. The questions that cannot be answered with great certainty are whether or not there was any principle of ‘Natural Law’ and, if there were any, what was its authority and its relation to ‘Positive Law.’
Any principles and provisions may, however, be pointed out in this regard. The law owes its existence, according to the Hindu view, to Heaven. In ‘Shruti’ and ‘Smritis’, the law is issued. The king is clearly to impose the rule and he is bound by it himself and he should be disobeyed if he goes against this law. Puranas are full of cases in which, when they went against the existing law, the kings were dethroned and beheaded.
The state of natural law was explained by Hobbes, Locke and Rosseau as:
Hobbes state of Natural Law Theory
The core philosophy of natural law was the right to self-preservation. Man lived in a turbulent state in his state of existence and his life was subject to fear and egoism. There was perpetual and destructive warfare in this state of nature that threatened everything. Natural cause, under these prevailing conditions, prescribed to man the law of self-preservation for which he sought to escape from the state of permanent insecurity. The self-preservation theory suggests that man has a natural need for protection and order. Hobbes also stated that the law of nature was based on nature which stated what a man should do and what he shouldn’t do.
John Locke’s state of Natural Law Theory
John locke’s state of nature was a state of peace, goodwill and mutual assistance. He was in favor of individualism and, according to him, natural law grants individuals more authority than the sovereign. The natural rights of persons are inalienable, according to him; the right to property was foremost among them. Meh had all the rights nature could provide them within their state of nature but they did not have the regulatory organization that could regulate these.
He stated that some rights such as the right to property, liberty and life lies with the individuals themselves and he also believed that the right of private property was already a part of human even before the introduction of the social contract. A social contract according to Locke is the contract that individuals entered into as to protect their property.
Rosseau’s state of Natural Law Theory
Every person lived a free life in the state of nature. He understood neither right nor wrong, and no private property, no envy and no competition existed. Innocence was everywhere. This state of affairs did not last long. However, People began to think about their property in due course of time and the disparities between the rich and the poor came into the picture which became the reason of inequality.
In order to resolve these issues, persons entered into a contract in which their rights were surrendered to society as a whole. Therefore, the individual’s right was the community’s right. Rousseau’s general will of society was stressed, and sovereign authority was bound to do what was in society’s common good.
The decline of Natural Law Theory
In the 18th-century natural law theory had a decline. The principle of natural law has been expressed in the economic and political developments that have taken place in Europe. Such new changes and technologies have called for concrete and political solutions. Natural science’s amazing growth and new political theories gave momentum to analytical approaches and dismissed deductive techniques. There were many philosophers and historians who dismissed natural theory.
Hume stated that in the scheme of natural law, the explanation understood was based on uncertainty and in nature, neither ideals nor fairness is universal. Natural law is nothing but a word, according to Bentham. He has criticized the natural law and called it “simple and rhetorical nonsense”. His view of the principle of equality was negative, as he said that “absolute inequality is absolutely impossible” and that absolute democracy under any kind of government is explicitly repugnant. Austin was also opposed to the philosophy of natural law and, according to him, it was vague and dishonest.
The de-recognition of natural law
After the First World War, western civilization was utterly destroyed. There was no balance and the need for an ideal of justice had grown. Positive law theories have utterly failed to address new problems produced by the changing social circumstances that have contributed to the resurgence of the theory of natural law. There was an emergence of fascism and marxism which led to the revival of natural law theories. This natural law is not abstract and unchangeable in relative terms and is concerned with practical issues rather than abstract concepts. This modern natural law theory deals with different principles of humanity. So, “natural law with variable content” is named.
Every culture is subject to continuous change, and these changes take place from time to time according to people’s needs. This study makes it clear that natural law has also been subject to reform since the Ancient Period. Its spectrum is very broad and encompasses various facets of society. It has been used to spread various philosophies, such as theocracy, individualism, and absolutism. It has created numerous revolutions and has also driven the growth of positive legislation.
The concepts of natural law have been expressed in various countries’ legal systems. A variety of principles of natural law have been reflected in the legal system of England, for example. India also borrowed such values, such as justice, equity and good faith, from England. A large number of concepts are based on the philosophy of natural law in the constitution of India, such as fundamental rights, the right to equality and judicial supremacy. Finally, we may conclude that in the world’s legal jurisprudence, natural law has made a great contribution.
This Article is Authored by Anna Mary Mathew, 3rd Year B.Com LLB Student at Tamil Nadu National Law University.
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