JAMIA MILLIA ISLAMIA

Faculty of law

Project

Theory of Aristotle on law & justice

Legal Method

Submitted to: Bhavna Sharma

Submitted by: Arif Majruddin

BA.LLB (Regular) 3rd Sem

Batch: 2018-2013
 Theory of Aristotle on Law & Justice

Introduction

Aristotle (384-322 BC) was a Greek philosopher who pioneered systematic, scientific

examination in literally every area of human knowledge and was known, in his time, as "the man
who knew everything", During the later Middle Ages (1300-1500 CE), he was referred to
as "The Master", and later simply as "The Philosopher”, he wrote on, and was considered a
master in, disciplines as diverse as biology, politics, metaphysics, agriculture, literature,
botany, medicine, mathematics, physics, ethics, logic, and the theatre.  He was hired by Philip II,
King of Macedon (359-336 BC) as tutor for his son Alexander the Great (l356-323 BC) and
made such an impression on the youth that Alexander carried Aristotle’s works with him on
campaign and introduced his philosophy to the east when he conquered the Persian Empire.
Through Alexander, Aristotle’s works were spread throughout the known world of the time,
influencing other philosophies and providing a foundation for the development of Jewish,
Christian, and Muslim theology.  

Aristotle & Law

He identifies law in different places with reason, with agreement, and with order. A
reconstruction of Aristotle’s legal philosophy. His main term for “law” is the
noun nomos (plural nomoi). Related expressions are kata ton nomon, “according to the
law,” nomikos, “legal,” and nomimos, “lawful.” The noun nomimon can also have the sense of
“statute.” In contrast, para ton nomon signifies “against the law,” and paranomos means
“illegal” or “unlawful.” Sometimes he speaks of written law, in contrast to unwritten custom
(ethos), for example, that one should honor one’s parents, do good to one’s friends, and return
good to one’s benefactors but he also distinguishes between unwritten law and written law.
Aristotle’s term nomos can denote either a particular law or the law in an abstract sense.
A particular law is a rule (kanôn) prescribing or prohibiting various kinds of actions For
example, it commands the citizens not to leave their posts in time of war, not to commit adultery
or act abusively, not to hit or slander others, and so forth. Because they command and prohibit
general classes of action, the laws are universal in form: “The law speaks universally”. The
universality of
the laws has an obvious advantage: The citizens can learn what the laws require, adapt their
behavior to them, and acquire the habit of obedience. But because laws are universal, they cannot
address unusual cases. 
Aristotle & Justice
Aristotle justice is of two types, viz., universal justice and particular justice. The for mer refers to
obedience to laws that one should be virtuous.
As far as particular justice is concerned, it is again of two types, viz., distributive justice and
remedial or corrective justice. Distributive justice implies that the state should divide or
distribute goods and wealth among citizens according to the merit. Again remedial justice is
divided into two, dealing with voluntary transactions (civil law) and the dealing with involuntary
transaction (criminal law). Further, Aristotle added commercial and cumulative justice to the
above-mentioned types of justice.

Development of natural law theory

A brief discussion on natural law theory shall be presented in the historical order to give an idea
of the various ideologies that it tried to establish from time to time and its effect on law. Natural
law theories may be broadly divided into four classes;

a) Ancient period

b) Medieval period

c) Period of renaissance

d) Modern period

Natural law theory is one of the oldest theories among all the theories. Thus these laws are
popularly said to be god made laws. It is said to be emanated from supreme source as observed
by many jurist and philosophers. Legal thinkers have expressed diverse views on behalf of
natural law. Natural law philosophy dominated the Greece during 5th century BC when it was
believed it was eternal to man. Sophist calls it as an order of things embodies reason.
Natural law theory is a philosophical and legal belief that all humans are governed by basic
innate laws, or laws of nature, which are separate and distinct from laws which are legislated.
Legislated laws are sometimes referred to as “positive laws” in the framework of natural law
theory, to make a clear distinction between natural and social laws. This theory has heavily
influenced the laws and governments of many nations, including England and the United States,
and it is also reflected in publications like the Universal Declaration of Human Rights. Many of
these philosophers used natural law as a framework for criticizing and reforming positive laws,
arguing that positive laws which are unjust principles of natural law are legally wanting. The
entire history of natural law reveals an attempt by the jurists to provide the concept and contents
of natural law in human existence.

At the outset, it is important to distinguish two kinds of theory that go by the name of natural
law. The first is a theory of morality that is roughly characterized by the following theses. First,
moral propositions have what is sometimes called objective standing in the sense that such
propositions are the bearers of objective truth-value; that is, moral propositions can be
objectively true or false. The second thesis constituting the core of natural law moral theory is
the claim that standards of morality are in some sense derived from, or entailed by, the nature of
the world and the nature of human beings. St. Thomas Aquinas, for example, identifies the
rational nature of human beings as that which defines moral law: "the rule and measure of human
acts is the reason, which is the first principle of human acts" But there is another kind of natural
law theory having to do with the relationship of morality to law. According to natural law theory
of law, there is no clean division between the notion of law and the notion of morality. Though
there are different versions of natural law theory, all subscribe to the thesis that there are at least
some laws that depend for their "authority" not on some pre-existing human convention, but on
the logical relationship in which they stand to moral standards. Otherwise put, some norms are
authoritative in virtue of their moral content, even when there is no convention that makes moral
merit a criterion of legal validity. The idea that the concepts of law and morality intersect in
some way is called the Overlap Thesis.
Natural Law theory and its influence in Indian laws

In Indian laws especially in Indian constitution there has been a largely impact of natural law
theory. The articles like Article 14,19and 21 has been widen widely interpreted in the Indian
scenario especially by the Indian judiciary. This could be found through the case laws In the case
of Air India v. Nargis Mirza the Supreme Court had struck down the Air India and Indian
Airlines regulations on the retirement and pregnancy bar on the services of airhostess as
unconstitutional on the ground that the regulations were arbitrary and unconstitutional under
Article 14 of the Indian constitution.

Now if one analyzes Stammler s four point principle with special reference to “principles of ‟
respect”: 1) the content of the person s volition must not be against the arbitrary will of another.
‟ Thus in this case the natural law theory has been applied by Indian Judiciary.

In the case of Maneka Gandhi v. Union of India the meaning and content life and personal
liberty under article 21 of Indian constitution came up for consideration and the supreme court
held that the law established by the state should be just fair and reasonable .

If one analyses the judgement one would find reference of LOCKE’S theory whereby the
natural ‟ rights of man such as right to life, liberity and property remained with him. So in
Meneka Gandhi case also the natural law theory principles could be evolved.

In case of Indian Express Newspaper v. Union of India the theory of Rousseau in which he
mentioned of freedom and liberty (freedom of speech and expression) has been applied, the
Rousseau s theory of freedom of speech and expression was said to be natural right ‟ of every
citizen by the Supreme court which is also been conferred upon under Article 19 of Indian
constitution, wherein the freedom of speech and expression is said to be among the basic right of
a human being to live in a society with dignity.

The popular Habeas Corpus case ADM Jabalpur v. Shivakant Shukla the question was
whether there was any rule of law in India apart from article 21. This was in context of
suspension of enforcement of Art. 14, 21 and 22 during the proclamation of emergency. The
answer is even in absence of article 21 of constitution the right to life and liberty of a person
could not be deprived without authority of law. Without such sanity of life and liberty the
distinction between lawless society and one governed by laws would cease to have meaning.
Thus in this case Stammler s four point principle with special reference to “principles of respect”
‟: 1) the content of the person s volition must not be against the arbitrary will of another. Thus in
‟ this case the natural law theory has been applied by Indian Judiciary.

Conclusion

Apart from its criticism the use of natural law has been prevalent since ages, even in the present
legal system the natural law is used extensively. The modern judicial system have been founded
on the British Pattern the fine principles of equality, justice and good conscience and natural
justice occupy an importance in Indian law. The higher values of universal validity,
righteousness, duty, service to mankind, sacrifice, non-violence etc. were already incorporated in
ancient legal system. The principles of natural law are embodied in dharma referred to duties of
man towards gods, sages, man and lower animals and creatures. During the Mughal period there
was a temporary clash between the philosophies but after British invasion of India they tried to
imply their laws over here, they started codification of laws denying the supremacy of old Indian
laws. As due to long rule of British in India and incorporation of their rules in here certain
principles of English Natural law found its place in Indian laws. The principle of natural justice,
the doctrine of bias, judicial review, reasoned decision and many other precepts of administrative
laws are based on natural law. It is also finds a prominent place in Directive principles of state
policy and the fundamental right under Indian constitution in which various rights and duties are
put up by the framers. Thus we can say that although the theory of natural law is said to be vague
and sometimes irrational but in Indian legal system the implication of Natural law theory has a
great role to play.
 Bibliography

Books

1) RWM Dias, Dias Jurisprudence, LexisNexis, New Delhi, 5th Edn., 2013.

2) Dr. JN Pandey ,The constitutional law of india, Central Law Agency, New Delhi,9th Edn.,
2018

3) Mani Tripathi, Jurisprudence Legal Theory, Central Law Agency, New Delhi, 6th Edn., 2016.

4) Dr. G.P. Tripathi, Legal Method, central law publication, Allahabad, 4th Edn., 2014.

Web Sources

1) Indiankanoon.com

2) Legalservicesindia.com

3) Joshua J. Mark, Ancient History Encyclopedia, Available at: https://www.ancient.eu/aristotle/

(Last Updated 22 May 2019).

4) Mayank Sen, Aristotle’s Philosophy of Law, Available at: https://lawexplores.com/aristotles-

philosophy-of-law/ (Last Updated 22nd Oct 2015).

Cases

1) Air India v. Nargis Mirza, AIR 1981 SC 438.

2) Maneka Gandhi v. Union of India, AIR 1978 SC 597.

3) Indian Express Newspaper v. Union of India, AIR 1986 SC 515.

4) ADM Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207.