UNIT- II

(2) NATURAL LAW SCHOOL : classical natural law school, revival of natural law
school : Rudolf Stammler and Kohler.

NATURAL LAW–ITS MEANING AND DEFINITION

There is no unanimity about the definition and exact meaning of Natural Law. In jurisprudence
the term ‘Natural Law’ means those rules and principles which are supposed to have originated
from some supreme source other than any political or worldly authority.
It is basically a priori method different from empirical method, the forms, accepts things or
conclusions in relation to a subject as they are without any need or enquiry or observation while
empirical or a posteriori approach tries to find out the causes and reason in relation to the
subject matter. It symbolizes Physical Law of Nature based on moral ideals which has universal
applicability at all places and terms. It has often been used either to defend a change or to
maintain status quo according to needs and requirement of the time.
For example, Locke used Natural Law as an instrument of change but Hobbes used it to
maintain status quo in the society. The concepts of ‘Rule of Law’ in England and India and
‘due process’ in USA are essentially based on Natural Law. Natural Law is eternal and
unalterable, as having existed from the commencement of the world, uncreated and immutable.
Natural Law is not made by man; it is only discovered by him. Natural Law is not enforced by
any external agency. Natural Law is not promulgated by legislation; it is an outcome of
preaching of philosophers, prophets, saints etc. and thus in a sense, it is a higher form of law.
Natural Law has no formal written Code. Also there is neither precise penalty for its violation
nor any specific reward for abiding by its rules. Natural Law has an eternal lasting value which
is immutable.
Natural Law is also termed as Divine Law, Law of Nature, Law of God, etc. Divine Law
means the command of God imposed upon men. Natural Law is also the Law of Reason, as
being established by that reason by which the world is governed, and also as being addressed
to and perceived by the rational of nature of man. It is also the Universal or Common Law as
being of universal validity, the same in all places and binding on all peoples, and not one thing
at Athens. Lastly in modern times we find it termed as “moral law” as being the expression of
the principles of morality.
The Natural Law denies the possibility of any rigid separation of the ‘is’ and ‘ought’ aspect of
law and believes that such a separation is unnecessarily causing confusing in the field of law.
The supporters of Natural Law argue that the notions of ‘justice’, ‘right’ or ‘reason’ have been
drawn from the nature of man and the Law of Nature and, therefore, this aspect cannot be
completely eliminated from the purview of law. It has generally been considered as an ideal
source of law with invariant contents.
EVOLUTION, GROWTH AND DECLINE OF NATURAL LAW
The content of ‘Natural Law’ has varied from time to time according to the purpose for which
it has been used and the function it is required to perform to suit the needs of the time and
circumstances. Therefore, the evolution and development of ‘Natural Law’ has been through
various stages which may broadly be studied under the following heads:

(1) Ancient Period

(2) Medieval Period
(3) Renaissance Period
(4) Modern period

(1) ANCIENT PERIOD

Heraclitus (530 – 470 B.C.)
The concept of Natural Law was developed by Greek philosophers around 4th century B.C.
Heraclitus was the first Greek philosopher who pointed at the three main characteristic features
of Law of Nature namely,
(i) destiny,
(ii) order and
(iii) reason.

He stated that nature is not a scattered heap of things but there is a definite relation between
the things and a definite order and rhythm of events. According to him, ‘reason’ is one of the
essential elements of Natural Law.

Socrates (470 – 399 B.C.)

Socrates said that like Natural Physical Law there is a Natural or Moral Law. ‘Human Insight’
that a man has the capacity to distinguish between good and bad and is able to appreciate the
moral values. This human ‘insight’ is the basis to judge the law. Socrates did not deny the
authority of the Positive Law. According to him, it was rather the appeal of the ‘insight’ to obey
it, and perhaps that was why he preferred to drink poison in obedience to law than to run away
from the prison. He pleaded for the necessity of Natural Law for security and stability of the
country, which was one of the principal needs of the age. His pupil Plato supported the same
theory. But it is in Aristotle that we find a proper and logical elaboration of the theory.
Aristotle (384 – 322 B.C.)
According to him, man is a part of nature in two ways;
firstly, he is the part of the creatures of the God, and
secondly, he possesses insight and reason by which he can shape his will.
By his reason man can discover the eternal principle of justice. The man’s reason being the part
of the nature, the law discovered by reason is called ‘natural justice’. Positive Law should try
to incorporate in itself the rules of ‘Natural Law’ but it should be obeyed even if it is devoid of
the standard principle of Natural Law. The Law should be reformed or amend rather than be
broken. He argued that slaves must accept their lot for slavery was a ‘natural’ institution.
Aristotle suggested that the ideals of Natural Law have emanated from the human conscience
and not from human mind and, therefore, they are far more valuable than the Positive Law
which is an outcome of the human mind.

NATURAL LAW IN ROMAN SYSTEM

The Romans did not confine their study of ‘Natural Law’ merely to theoretical discussions but
carried it further to give it a practical shape by transforming their rigid legal system into
cosmopolitan living law.
In this way Natural Law exercised a very constructive influence on the Roman law through
division of Roman Law into three distinct divisions namely ‘Jus civile’, ‘Jus gentium’ and
‘Jus naturale’. Civil law called ‘Jus civile’ was applicable only to Roman citizens and the law
which governed Roman citizens as well as the foreigners was known as ‘Jus gentium’. It
consisted of the universal legal principles which conformed to Natural Law or Law of Reason.
Later, both these were merged to be known as ‘Jus naturale’ as Roman citizenship was extended
to everyone except a few categories of persons. Roman lawyers did not bother themselves with
the problem of conflict between ‘Positive Law’ and ‘Natural Law’. Though there was a general
feeling that natural law being based on reason and conscience was superior to Positive Law
and therefore, in case of a conflict between the two, the latter should be disregarded.

NATURAL LAW IN INDIA

Hindu legal system is perhaps the most ancient legal system of the world. They developed a
very logical and comprehensive body of law at very early times. A sense of ‘Justice’ pervades
the whole body of law. But the frequent changes in the political system and government and
numerous foreign invasions, one after the other prevented its systematic and natural growth.
Under the foreign rule no proper attention could be paid to the study of this legal system. Many
theories and principles of it are still unknown, uninvestigated. Whether there was any
conception of ‘Natural Law’ or not, and if there was any, what was its authority and its relation
with ‘Positive Law’ are the questions which cannot be answered with great certainty. However,
some principles and provisions can be pointed out in this respect. According to the Hindu view,
Law owes its existence to God. Law is given in ‘Shruti’ and ‘Smritis’. The king is simply to
execute that law and he himself is bound by it and if goes against this law he should be
disobeyed. Puranas are full of instances where the kings were dethroned and beheaded when
they went against the established law.

(2) MEDIEVAL PERIOD

Catholic philosophers and theologicians of the Middle Ages gave a new theory of ‘Natural
Law’. Though they too gave it theological basis, they departed from the orthodoxy of early
Christian Fathers. Their views are more logical and systematic. Thomas Acquinas views may
be taken as representative of the new theory. His views about society are similar to that of
Aristotle. Social organization and state are natural phenomena. He defined law as ‘an ordinance
of reason for the common good made by him who has the care of the community and
promulgated’.
St. Thomas Aquinas gave a fourfold classification of laws, namely,
(1) Law of God or external law,
(2) Natural Law which is revealed through “reason”,
(3) Divine Law or the Law of Scriptures,
(4) Human Laws which we now called ‘Positive law’.
Natural Law is a part of divine law. It is that part which reveals itself in natural reason. Like
his predecessors, St. Aquinas agreed that Natural Law emanates from ‘reason’ and is applied
by human beings to govern their affairs and relations. This Human Law or ‘Positive Law’,
therefore, must remain within the limits of that of which it is a part. It means that Positive Law
must conform to the Law of the Scriptures. Positive Law is valid only to the extent to which it
is compatible with ‘Natural Law’ and thus in conformity with ‘Eternal Law’.
He regarded Church as the authority to interpret Divine Law. Therefore, it has the authority to
give verdict upon the goodness of Positive Law also. Thomas justified possession of individual
property which was considered sinful by the early Christian Fathers.

(3) THE PERIOD OF RENAISSANCE

The period of renaissance in the history of development of Natural Law may also be called the
modern classical era which is marked by rationalism and emergence of new ideas in different
fields of knowledge.

Hugo Grotius (1583 – 1645)

Grotius built his legal theory on ‘social contract’. His view, in brief, is that political society
rests on a ‘social contract’. It is the duty of the sovereign to safeguard the citizens because the
former was given power only for that purpose. The sovereign is bound by ‘Natural Law’. The
Law of Nature is discoverable by man’s ‘reason’.
He departed from St. Thomas Aquinas scholastic concept of Natural Law and ‘reason’ but on
‘right reason’, i.e. ‘self-supporting reason’ of man. Now the question may arise: Should
disobey the ruler who did not act in conformity with principles of ‘Natural Law’? Grotius
believed that howsoever bad a ruler may be, it is the duty of the subjects to obey him. He has
no right to repudiate the agreement or to take away the power. Although there is apparent
inconsistency in the Natural Law propounded by Grotius because on the one hand, he says that
the ruler is bound by the ‘Natural Law’, and, on the other hand, he contends that in no case the
ruler should be disobeyed, but it appears that Grotius’s main concern was stability of political
order and maintenance of international peace which was the need of the time. Hugo Grotius is
rightly considered as the founder of the modern International Law as he deduced a number of
principles which paved way for further growth of International Law. He propagated equality of
State and their freedom to regulate internal as well as external relations.

Thomas Hobbes (1558 – 1679)

According to Hobbes, prior to ‘social contract’, man lived in chaotic condition of constant
fear. The life in the state of nature was “solitary, poor, nasty, brutish and short”. Therefore, in
order to secure self-protection and avoid misery and pain, men voluntarily entered into contract
and surrendered their freedom to some mightiest authority that could protect their lives and
property. Thus Hobbes was a supporter of absolute power of the ruler and subjects had no rights
against the sovereign. Though he makes a suggestion that the sovereign should be bound by
‘Natural Law’, it is not more than a moral obligation. It would thus be seen that Hobbes used
Natural Law theory to support absolute authority of the sovereign. He advocated for an
established order. During the Civil War in Britain, his theory came to support the monarch. In
fact, it stood for stable and secure government. Individualism, materialism, utilitarianism and
absolutism all are interwoven in the theory of Hobbes.

John Locke (1632 – 1704)

According to Locke, the state of nature was a golden age, only the property was insecure. It
was for the purpose of protection of property that men entered into the ‘social contract’. Man,
under this contract, did not surrender all his rights but only a part of them, namely, to maintain
order and to enforce the law of nature. His Natural Rights as the rights to life, liberty and
property he retained with himself. The purpose of government and law is to uphold and protect
the Natural Rights. So long as the government fulfils this purpose, the laws given by it are valid
and binding but when it ceases to do that, its laws have no validity and the government may be
overthrown. Locke pleaded for a constitutionally limited government. The 19th century
doctrine of ‘laissez faire’ was the result of individual’s freedom in matters relating to
economic activities which found support in Locke’s theory. Unlike Hobbes who supported
State authority, Locke pleaded for the individual liberty.
Jean Rousseau (1712 – 1778)
Rousseau pointed out that ‘social contract’ is not a historical fact as contemplated by Hobbes
and Locke, but it is merely a hypothetical conception. Prior to the so called ‘social contract’,
the life was happy and there was equality among men. People united to preserve their rights of
freedom and equality and for this purpose they surrendered their rights not to a single
individual, i.e. sovereign, but to the community as a whole which Rousseau named as ‘general
will’. Therefore, it is the duty of every individual to obey the ‘general will’ because in doing
so he directly obeys his own will. The existence of the State is for the protection of freedom
and equality. The Sate and the laws made by it both are subject to ‘general will’ and if the
government and laws do not conform to ‘general will’, they would be discarded. Rousseau
favored people’s sovereignty. His ‘Natural Law’ theory is confined to the freedom and equality
of the individual. For him, State, law, sovereignty, general will etc. are interchangeable terms.

Immanuel Kant (1724 – 1804)

The Natural Law philosophy and doctrine of social contract was further supported by Kant and
Fichte in 18th century. They emphasized that the basis of social contract was ‘reason’ and it
was not a historical fact. Kant drew a distinction between Natural Rights and the Acquired
Rights and recognized only the former which were necessary for the freedom of individual.
He favored separation of powers and pointed out that function of the State should be to protect
the law. He propounded his famous theory of Categorical Imperative in his classic work entitled
Critique of Pure Reason.

Kant’s theory of Categorical Imperative was derived from Rousseau’s theory of General Will.
It embodies two principles:-

1. The Categorical Imperative expects a man to act in such a way that he is guided by dictates
of his own conscience. Thus it is nothing more than a human right of self-determination.
2. The second principle expounded by Kant was the doctrine of ‘autonomy of the will’ which
means an action emanating from reason but it does mean the freedom to do as one pleases.
In essence, Kant held that “an action is right only if it co-exists with each and every man’s
free will according to the universal law”. This he called as “the principle of Innate Right”.
The sole function of the state, according to him, is to ensure observance of law.
 (4) MODERN PERIOD
19th Century Hostility towards Natural Law
The Natural Law theory received a setback in the wake of 19th century pragmatism. The
profounder of analytical positivism, notably, Bentham and Austin rejected Natural Law on
the ground that it was ambiguous and misleading. The doctrines propagated by Austin and
Bentham completely divorced morality from law.
In the 19th century, the popularity of Natural Law theories suffered a decline. The ‘Natural
Law’ theories reflected, more or less, the great social economic and political changes which
had taken place in Europe. ‘Reason’ or rationalism was the spirit of the 18th century thought.
A reaction against this abstract thought was overdue. The problems created by the new changes
and individualism gave way to a collectivist outlook. Modern skepticism preached that there
are no absolute and unchangeable principles. Priori methods of the natural law philosophers
were unacceptable in the emerging age of science.
The historical researches concluded that social contract was a myth. All these developments
shattered the very foundation of the Natural Law theory in 19th Century. The historical and
analytical approaches to the study of law were more realistic and attracted jurists. They
heralded a new era in the field of legal thought. In this changed climate of thought it became
difficult for the ‘Natural Law’ theories to survive. Therefore, though solitary voices asserting
the superiority of ‘Natural Law’ are still heard, the 19th century was, in general, hostile to the
‘Natural Law’ theories.

2ND TOPIC- 20TH CENTURY REVIVAL OF NATURAL LAW

Towards the end of the 19th century, a revival of the ‘Natural Law’ theories took place. It was
due to many reasons:
First, a reaction against 19th century legal theories which had exaggerated the importance of
‘positive law’ was due and theories which over-emphasized positivism failed to satisfy the
aspirations of the people because of their refusal to accept morality and ‘reason’ as element of
law;
Second, it was realized that abstract thinking or a priori assumptions were not completely
futile; Third, the impact of materialism on the society and the changed socio-political
conditions compelled the 20th century legal thinkers to look for some value-oriented ideology
which could prevent general moral degradation of the people. The World War 1 further
shattered the western society and there was a search for a value-conscious legal system. All
these factors cumulatively led to revival of Natural Law theory in its modified form different
from the earlier one.
The main exponents of the new revived Natural Law were Rudolf Stammler, Prof. Rawls,
Kohler and others.
Rudolf Stammler (1856 – 1938)
Stammler defined law as, “species of will, others-regarding, self-authoritative and
inviolable”. For him, a just law was the highest expression of man’ social life and aims at
preservation of freedom of individuals. According to him, the two fundamental principles
necessary for a just law were:
(1) principles of respects, and
(2) the principle of community participation.
With a view to distinguishing the new revived Natural Law from the old one, he called the
former as ‘Natural Law with variable content’. According to him, law of nature means ‘just
law’ which harmonizes the purposes in the society. The purpose of law is not to protect the will
of one but to unify the purposes of all.

Professor Rawls
Professor Rawls made significant contribution to the revival of Natural Law in the 20th century.
He propounded two basic principles of justice, namely,
(1) equality of right to securing generalized wants including basic liberties, opportunities,
power and minimum means of subsistence; and
(2) social and economic inequalities should be arranged so as to ensure maximum benefit to
the community as a whole.

Kohler
As a neo-Hegelian, Kohler 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”. He says that there is no eternal law and the law
shapes itself as the society advances morality and culturally in course of evolution. He tried to
free the 19th century Natural Law from the rigid and a priori approach and attempted to make
it relativistic, adapting itself to the changing norms of the society.
The approaches of these philosophers are very scientific and logical and are free from the right
and a priori principles.
Lon Luvois Fuller (1902 – 1978)
He rejected Christian doctrines of Natural Law and 17th and 18th century rationalist doctrines
of Natural Rights. He did not subscribe to a system of absolute values. His principal affinity
was, with Aristotle. He found a “family resemblance” in the various Natural Law theories, the
search for principles of social order. He believed that in all theories of Natural Law it was
assumed that “the process of moral discovery is a social one and that there is something akin
to a ‘celebrative articulation of shared purposes’ by which men come to understand better their
own ends and to discern more clearly the means for achieving them.” To fuller, the most
fundamental tenet of natural law is an affirmation of the role of reason in legal ordering.

Hart
Hart, the leader of contemporary positivism, though critical of Fuller’s formulation, has
attempted to restate a national law position from a semi-sociological point of view. Hart points
out that there are certain substantive rules which are essential if human beings are to live
continuously together in close proximity. “These simple facts constitute a case of indisputable
truth in the doctrines of natural law”. Hart places primary emphasis here on an assumption of
survival as a principal human goal. “We are concerned”, he says, “with social arrangements for
continued existence and not with those of suicide clubs. There are, therefore, certain rules
which any social organization must contain and it is these facts of human nature which afford
a reason for postulating a ‘minimum content’ of Natural Law”

Finnis
Finnis who in his writing ‘Natural Law and Natural Rights’, restated the importance of
natural law. For Finnis, ‘Natural’ is the set of principles of practical reasonableness in ordering
human life and human community. Drawing on Aristotle and Aquarius, Finnis sets up the
proposition that there are certain basic goods for all human beings. The basic principles of
Natural Law are pre-moral. These basic goods are objective values in the sense that every
reasonable person must assent to their value as objects of human striving.

INDIAN PERSPECTIVE OF NATURAL LAW SCHOOL

The natural law principles have been embodied in legal rules in various legal systems and have
become their golden principle. In India, a number of legal principles and concepts have been
borrowed from England and many of them are based on Natural law principles.
Indian Constitution And Natural Law:
The Indian Constitution is based on the pillars of natural justice, which is a revised version of
natural law. There exists a clear link between the basic structure of the Indian Constitution and
the natural law.
The Preamble:
Starting from the preamble, the words justice inclusive of social, economic and equality of
status...etc. prove that natural law principles are present there in the Indian Constitution.
The Fundamental Rights:
Apart from the preamble, Article 14 ensures equality before law to all the citizens without any
sort of discrimination. Then there is Article 21 which guarantees the right to life and personal
liberty, which is also the most comprehensive article of the whole Constitution. This is based
on the premises of natural justice. Article 14,19,21 which is also the golden triangle of the
Constitution has drawn inspiration from the natural law.
Article 32 & 226:
The Constitution empowers the High Courts and the Supreme Court to exercise control over
the administration and quasi judicial tribunals and one of the grounds on which orders passed
by the later may be set aside is the violation of the principles of natural justice.
Article 311:
The principles of natural justice have been incorporated in Article 311 which says that no civil
servant can be dismissed or removed or reduced in rank until he has been given reasonable
opportunity of showing cause against the action proposed to be taken against him.
JUDICIAL INTERPRETATION AND NATURAL LAW:
By the process of judicial interpretation two rules have been evolved as representing the
principles of natural justice in judicial process. They constitute the basic elements of fair
hearing having their roots in the innate sense of man for fair play and justice.
The first rule is "nemo judex in causa sua" which means no man shall be judge in his own
cause and the second rule is "audi alteram partem" i.e. hear the other side. In other words,
as it is now expressed, "justice should not only be done but should manifestly be seen to be
done. " [Canara Bank v. Debasish Das, AIR 2003 SC 2041]

The basic structure theory propounded by the Supreme Court of India in Kesawananda
Bharati v. State of Kerala, [AIR 1973 SC 1461] furnishes the best illustration of judiciary's
zeal to incorporate the principles of natural law in the constitutional jurisprudence.
In Minerva Mill Ltd. V. Union of India [AIR 1980 SC 1782] the court held that fundamental
rights are enshrined in the part III and DPSP in part IV taken together constitute the core of the
Indian Constitution and form it's conscience.
In Air India v. Nargis Mirza, [AIR,1981 SC 1829] the Apex Court had struck down the Air
India and Indian Airlines Regulation on the retirement and pregnancy bar on the services of
air-hostess as unconstitutional on the ground that the regulation was arbitrary under Article 14.
In the case of Maneka Gandhi v. Union of India, [AIR 1978 SC 597] the meaning and content
of life and personal liberty under Article 21 came up for consideration and the Supreme Court
held that the law established by the state should be just fair and reasonable.
ADM Jabalpur v. Shivakant Shukla, [1976 SCC 521] is one of the important cases where
the Court held that even in absence of Article 21 the right to life and personal liberty of a person
could not be deprived without authority of law
In R L Sharma V. Managing Committee Dr. Harilal H.S. school [1993 AIR 2155] the Apex
Court has observed: In administrative law the rules of natural justice are foundational and
fundamental concept and law is now well settled that the principles of natural justice are part
of the legal and judicial procedure.
Conclusion
This brief survey of the content of ‘Natural Law’ has varied from time to time. It has been used
to support almost any ideology, absolutism, individualism and has inspired revolutions and
bloodshed also. It has greatly influenced the positive law and has modified it. The law is an
instrument not only of social control but of social progress as well, it must have certain ends.
A study of law would not be complete unless it extends to this aspect also. The ‘Natural Law’
theories have essentially been the theories regarding the ends of law. The ‘Natural Law’
principles have been embodied in legal rules in various legal systems and have become their
golden principles.