161

NATURAL LAW PHILOSOPHY

INTRODUCTION

The natural law philosophy has occupied an important place in the realm of politics, law,

religion and ethics for the earliest times. It has played the role of harmonizing,

synthesizing and promoting peace and justice in different periods and protected public

against injustice, tyranny and misrule. Commending the function of natural law in

liberating people from politico-legal disorder and tracing its evolution. BLACK STONE

observed, “the natural law being co-existent with mankind and emanating from God

Himself is superior to all other laws. It is binding over al the countries at all the times and no man made law will be valid if it is contrary to the law of nature”1. The natural

law theory reflects a perpetual quest for absolute justice. Thus, it should not be

misconceived that natural law has a mere theoretical significance. Its practical value is a

historical fact as it generated a wave of liberalism and individual freedom and inspired

people to revolt against totalitarian rule in France and Germany. The international law

owes its origin, development and validity to the natural law philosophy. The law of

nations derives its force and authority from the natural law.

Dr.FREEDMANN has stated that the history of natural law is a tale of the search of

mankind for absolute justice and its failure. Therefore, with the changes in social and

political conditions, the notions about natural law have also been changing. Thus, natural

law has acted as a catalyst for bringing about transformation of the old prevailing legal

system. It brought about a change in the old Roman law of Justinian period. The greatest

contribution of natural law theory to the legal system is is ideology of a universal ordergoverning all men and the inalienable rights of the individual2.

*

Legal thinkers have expressed on divergent views regarding the extent of natural law. The natural law philosophy dominated in Greece during 5th B.C. when it was believed

1 BLACKSTONE : Commentaries, Introduction, P.392 FREEDMAN : Legal Theory, PP43-45

162

that it is something external to man. SOPHISTS called it as an order of things which

embodied reason.

SOCRATES, PLATO and ARISTOTLE also accepted that postulates of reason have a

universal force and men are endowed with reason irrespective of race or nationality.

CICERO supported natural law since it is the creation of reason of the intelligent man

who stands highest in creation by virtue of his faculty of reasoning. He believed in

universal applicability of natural law because it is based on the general morality of the

human society.

In the ancient societies, natural law was believed to have a divine origin. During the

medieval period it had a religious and super natural basis but in modem times it has a

strong political and legal moorning. It has been rightly pointed out by Lord LLOYD that

natural law has been deviced as a mere law of self-preservation or a law restraining

people to a certain behaviour. It has found expression in modem legal systems in the

form of socio-economic justice. The entire human rights philosophy is an outcome of

the growing importance of the principles of natural justice. The natural law theory acts as

a catalyst to social transformation thus saving the society form stagnation.

NATURAL LAW - ITS MEANING AND DEFINITION

There is no unanimity about the definition and exact meaning of natural law and the term

“natural law theory” has been interpreted differently at different times depending on the

needs of the developing legal thought. But the greatest attribute of the natural law theory is its adaptability to meet new challenges of the transient society1

t

According to COHEN, natural law is not a body of actual enacted or interpreted law

enforced by courts, it is in fact a way of looking at things and a humanistic approach of

DIAS R.W.M.: jurisprudence, P.65

163

judges and jurists1. It embodies within it a host of ideals such as morality justice, reason,

good conduct, freedom, equality, liberty, ethics and so on.

From the jurisprudential point of view, natural law means those rules and principles

which are supposed to have originated from some supreme source other than any political

or worldly authority. Some thinkers believe that these rules have a divine origin, some

find their source in nature while others hold that they are the product of reason. Even the

modem sociological jurists and realists have taken recourse to natural law to support their

sociological ideology and the concept of law as a means to reconcile the conflicting

interests of individuals in the society.

Natural law in common sense means the law that is largely unwritten and consists of

principles of “ought" as revealed by the nature of man or reason or derived from God,

etc. The Italian jurist DELVECCHIO ATPLY defines the legal ideas of natural law. He

observes, “natural law ... is the criterion which permits us to evaluate positive law and to

measure its intrinsic justice". In fact, “natural law" term is analogous to band-stand

with which a number of high ideals are mixed up. These are labelled as morality, justice,

ethics, right reason, good conduct, equality, liberty, freedom, social justice, democracy,

etc. Natural law as such is not a body of actual enacted or interpreted law enforced by

courts. It is rather as EARNEST BAKER remarks, “a way of looking at things - a spirit

of 'human interpretation ’ in the mind of the judge andjurists ”. It is this way of “looking

at thing ” that is basic essential not only for Romans but European traditions. It is this way of looking at things which RADBRUCH, FULLER or even HART2 have

emphasized in their quest for morality and natural justice. .Even the contemporary

sociological thinkers and realists have looked at natural law in terms of prevailing ideas

about social justice - “balancing of conflicting interests" and “felt-necessities”.

1 COHEN & COHEN : Reading in Jurisprudence and Legal Philosophy2 Tire Common Concept of Law PP.181-207 (1961)

164

NATURAL LAW AND POSITIVE LAW

There is another way of looking at natural law. It is viewing at it form positivistic or

empiricist angle abstract metaphysical ideals and notions which is described generally as

natural law.

According to FULLER1 “by legal positivism I mean that direction of legal thought which

insists on drawing a sharp distinction between law that 'is' and that 'ought' to be,,

natural law on the other hand is the view which denies the possibility of a rigid

separation of the 'is ’ and the 'ought ’ and which tolerates a confusion of them in legal

discussion. There are of course, many 'systems ’ of natural law. Men have drawn their

criteria of justice and of right law from many sources from the nature of things, from the

nature of man, form the nature of God But what unites the various schools of natural

law and justifies brining them under a common rubric, is the fact in all of them a certain

coalescence of the 'is ’ and 'ought ’ will be found.

There is one fundamental different, says SUNDARAM, between natural law and other

forms of law. Common, canon law, constitutional law, international law are all subject

to periodical amendments and alterations. Natural law is eternal and unalterable. A

second basic difference is that all other laws of the second group are created, evolved,

modified and altered by man. natural law is only discovered by man

A third and most vital difference is that obedience to natural law is not enforced by an

external agency while conformity to every other form oj law can be brought about by

coercion..Lastly, any form of law that rules contrary to natural law may seemingly

succeed for a time but it is doomed to fail ultimately. Natural law has no precise

penalties of offender, no outward regards for those who conform to it. Natural law is

promulgated not by legislation, but by teaching. The teachers are those we call seers,

sages, prophets, mystics, philosophers, law-givers, saints and sons of God. ’’

LON L. FULLER : The Law in Quest of Itself, PP.5-11 (1940)1

165

In short natural law1 is a body of higher law in subordination to which all human laws

must be made and not merely “a brooding omnipresence in the skies It is a concept of

merely value helping mankind to control its political destiny, liberties, human rights and

fundamental freedoms from all omnipotent police states, legislatures and dictators.

NATURAL LAW - INDIAN CONCEPT AND PERCEPTION

THE CONCEPT OF NATURAL LAW

Higher moral law over and above the positive law embodying certain values of universal

validity like dharma "righteousness”, artha “wealth”, kama "desires" and moksha

"salvation " were expounded by ancient Indian philosophers and thinkers - 5000 years

ago with a view to harmonious social order by striking a balance between inner and outer,

spiritual and material aspects of life. The quest for equilibrium, harmony, knowledge and

truth inspired the Indian minds more than their counter-parts the Greeks and the Romans.

The major goals of life were to be attained, controlled and regulated according to the

dictate and direction of dharma. The immortal Veda Vyasa declared artha and kama flow

from dharma and so why not follow dharma?

gsmfefsm msm qr tosf s\

In other words gSOTfefezf that is first follow dharma, and dharma will also give

artha and kama. Thus, ethos of Indian way of life was characterized by an all pervading

law - dharma. It this law of dharma - the Hindu's natural law was neither a cult or creed

nor a code in the western sense but the right law of life and true ideal of living and social

ordering. It is this law of dharma which is neither static nor rigid nor absolute but

relative, dynamic and evolving - always changing according to the needs and

development of society. Thus Hindu no less than Greeks and Romans excelled in

propounding philosophical ideals and constructing scientific concepts and methods which

have deeply influenced the law and life of people. The spirit of intellectual inquiry

which possessed the Hindu mind led them to question experience, to question the

1 See D’ Entreves, Natural Law, 1951, Friedman, Legal Theory PP95-I52 (511’ Ed.), Bodenheimer, E; Jurisprudence 1962, Bryce, Law ofNature, 2 Essays in History and jurisprudence (1901), PP112-71, Gierke, Natural Law and Theory of Society (1934); Stone Julius, Province and Function of Law, 1946,Hart, Concept of Law, 1961; Fuller, The Law in Quest of Itself, 1940, Morality of Law, 1964, etc.

166

environing world, to question their gods and the tenets and of their traditional faith. They

were not hampered by the tyranny of religious dogmas or political authority or even

pressure of public opinion. They sought and elaborated the law of dharma and with

single minded devotion rare in the history of thoughts. As Yajurveda declared

i.e. son of immortality all should listen the message of truth. In the words5 of MAX

MULLER "six systems of Indian philosophy".

It is surely astounding that such a system as the Vedanta should have been slowly

elaborated by the indefatigable and intrepid thinkers of India thousand years ago, a

system that even now makes us feel gidely, as in mounting the last steps of swaying spire

of an ancient Gothic Cathedral. None of our philosophers, not excepting HERACLITUS

PLATO, KANT or HEGEL has ventured to erect such a spire, never frightened by storms

or lightenings. Stone follows on stone after regular succession after once the first step

has been made, after once it has been clearly seen that in the beginning there can have

been but one, as there will be but one in the end, whether, we call it atman or brahman.

RITA - EXPLAINED

Much earlier to Greeks and Roman the early Rigveda thinkers were also deeply

impressed by the forces and powers of nature. They began to wonder as the natural

forces like sun, the moon, the rains, the storms, lightening, etc. They felt they were

surrounded on all sides by the mysteries of the universe and that they were natural

dependent on these natural phenomena. They began to put themselves the original

question such as “where is the sun by right? Where go the stars by day? Why does the

sun not fall down?”, etc. They thought that the forces of nature were all represented by

mysterious divine forces. They began to' posit a God for each of these natural powers and

forces of the universe e.g. Mitra “agent of bright sky and day", Varuna “the agent of

dark sky and evening”, Surya “agent of son", etc. It is the God “varuna” who was very

important and extolled by vedic stages. He is considered in the “vedas" as the apostle of

justice, virtue and righteousness in the universe. He is the sky guardian of “rita” in

1 Bhavan Journal, PI23 (Annual cum-Independence Day Number Vol. X No-1, Aug 51973)

167

Vedas. “Rita"is cosmic order, the ordered course of things in the universe as revealed

regular alteration of day and night, the pageantry of seasons and all other disciplines as

represented by laws of uniformity of nature and universal causation. “Rita” also mans

moral order in the individuals in the society. It is the trust, the truth of the world in men

and matter included. The contrast of “rita” is ‘anrita” - lie, untruth falsehood. "Rita"

is “satya” and “dharma” truth, justice and equity. The vedic gods are not only the

maintained of the cosmic order but also the upholders of the moral law. They have the

double responsibility of maintaining both physical and moral order. God “varuna" is

considered the accredited trustee of this “rita". He has fixed the laws of the physical

universe. The sea does not flow back into rivers, nor does the wind cease to blow. So

also he is holding the reins of righteousness in men. He is the guardian and champion of

“rita ”.

However, vedic seers were not polytheistic but they also moved to monotheism and

pantheism and still further to find out the source of this entire universe, of all being and

existence. Thus, the vedas. represent at an early stage in the history of man, the worship

of the great powers of nature personified. The idea of Rigvedic man is to become like

Gods not only through worship but also by way of life. Virtue is obedience to the law of

God which includes love of man also. Vice is disobedience to law. “Rita" furnish the

measure of morals. It is “satya Anrita” is opposite to “rita", the opposite of truth. It is

disorder disquietude. An ordered conduct is “vrata“Varuna” is the guardian of

“rita" and himself a person of unalterable ways. All good habits like speaking the truth,

self-restraint, benevolence to neighbours, charity, kindness, etc. All malpractices like

adultery, seduction, sorcery, witchcraft, etc. are considered as evils. Even gambling is

denounced.

“PARA” AND “APRA” VIDYA AND THEORY OF KNOWLEDGE

The Upanishads also contain noblest thought and philosophy revealed and experienced

by ancient mystics, seers and sages in their discourse concerning truth - SANKARA

derives the word upnishad as substantive from the root “sad” to destroy and interprets

the term as "brahma ” - knowledge by which ignorance of the individual is destroyed.

168

Upnishads emphasize the path of knowledge “jnana marga”. In fact Upanishads make a

distinction between two types of knowledge,

i) Para, and

ii) Apra vidya

Higher and lower wisdom. The Mondaka Upanishad points out that alone is higher

knowledge which relates to the imperishable “akshara". The lower knowledge of

empirical things, of “nama-rupa-prapaneca”. Higher knowledge may not enlighten us

about the details of particulars but does provide an insight into the principle of their very

being, just as the knowledge of the lump of clay for example, is enough to explain every

other things made of clay. It is the knowledge of the original source of all manifestations,

of the absolute self in comparison with which, the lower knowledge become ne-science,

“avidya” - false wisdom. Higher wisdom - “para vidya’’ , is the true knowledge.

“Apara vidya’’ is knowledge of empirical sciences and arts relating to material and

ephemeral pleasure. The upanishadic doctrines of “alma 'individual souls”' and

“Brahman 'universal souls”’ embody the universal principles of unity between inner and

outer universes namely “alma”and “Brahman" are the same. They are identical in

essence.

The famous quotations from Upanishads like,

ddr^R-S

That thou art

3lg3Tsl^lR-^i

I am that brahman

I am that brahman

That is the real - “oom tat sat’’, etc. are to their essential inner identity. The Upanishads

invariably invoke God for the ridelance of “avidya" - individual ignorance and for

conferring light, truth and knowledge which is power e.g.

169

"Lead me from unreal to real

Lead me from darkness to light

Lead me form death to immorality”

The case of evil lies in equity "ahamkara ” and egoity is itself rooted in "avidya (ne­

science) ” . In short though upanishads emphasize knowledge as an essential means of

self-realisation they consider that it is not the only means. They insist on right living

also. There is an important place for morality in upanishadic scheme of life. The

mundaka and katha Upanishads rightly point out that self cannot be gained by knowledge

of veda alone, by mere understanding or much learning only. They insist that both

knowledge "jnana” and works "kama” are necessary for the realization of the soul

"liberation". The upanisadic morality is based on complete freedom of the will for the

soul. Man is free to act and as he acts so he earns "karma". The brihadaranyaka

Upanishad says "everyone becomes good by good deeds and bad by bad deeds - punyo

vaipunyena karmana bhavati;papahpapeneti - every one has to reap what he sows".

LAW OF RITA “PHARMA”

Law of Rita or dharma in ancient India made a bold attempt of building an organized

social life wherein each individual realized his goods within the parameters of social

norms or morality. It is this supreme law which sustained individuals together in society

that is:

awf S31TI

Rita is the vedic legal concept which can be described as the law of nature. Rita literally

means "the straight line ".

MAX MULLER points out how Rita in vedas applies to the straight line of the Sun in its

daily course, to the straight line followed by day and night, to the straight line that

regulates seasons, to the straight line which was discovered to run through the whole

realm of nature. Rita thus refers to law of nature, the law of the uniformity of nature.

170

When applied to the moral world the same Rita signifies the moral law “the law on which

our life Is founded, the eternal law of right and reason that which makes for

righteousness both within us and without".

Rita in the morality of the Vedas is just the unerring inner voice of conscience in each

and every individual. When within us the inner voice of conscience tell us “this is Rita ”

it means simply, “this is right”, “this is true ”, and nothing more.

PHARMA - CONCEPT AND MEANING

Side by side of the vedic “rita” the concept of "dharma" was also evolved especially by

Manu. Dharma hereby came to be known as custom, moral laws, laws or duties in

general, what is right. The term - dharma is derived from the root dhri means to sustain,

uphold, hold together corresponding its predecessor the early vedic concept of "rita ", In “hrahmanas ” the concept of dharma largely supersedes1 the vedic concept of “Rita ", As

the complexity of social organization increased the old concept of “Rita" was found to be

inadequate whereas the concept of dharma was able to answer practically all needs of the

evolving situation. Dharma gradually emerges as a code of duties towards gods, sages, men, lower orders of creatures. PANINI - the great Sanskrit grammarian of the 5th

century BC interprets dharma as an act of religious merit, custom and usage. Thus,

dharma came to mean “moral proper, ethical duty, religious virtue idea, absolute truth,

universal law as principle, divine justice, conventional code of customs and traditions ”,

Mahabharata describes it as being ordained for the advancement and growth of all

creatures "for restricting creatures from injuring one another ” and to uphold all

creatures. It is not a simple and unitary but manifold and complex and relates to the

behaviour of the state and its subjects, castes, families, groups and orders of life, charity,

and expediency, salvation, duties of ltien and women and duties of human beings in

general. But in essence the Indian thinking about dharma may be expressed “as a belief

in the conservation of moral values". Dharma in other words pre-supposes “an eternal

moral order which is based on cosmic archetypal ideation which persists immutability

which is utterly independent of and indifferent to merely human preferences,

1 GOKHALE G.B.: Indian Thought Through Ages, P.24-27 (Asia Publishing House, New Delhi, 1961)

171

conveniences and manipulations". Thus, dharma has been the regulator of all human

activities, whether social or individual, rational or mystical, mundane or spiritual. It is

dharma that great men like Dilip, Bharat, Rama, Yudhisthira, Ashoka, Harsh and

Gandhiji sought inspiration for establishing justice and moral order. Its principles are

eternal, immutable based on reason, truth and morality to sustain the moral order on

which social structure was based on. It infused an ideal of higher law by which the ruler

and the ruled were equally bound and it was the model indicator to distinguish between

evil and good, right and wrong, just and unjust. It is dharma which has impelled men

since vedic ages to strive for "righteousness ”. In short, the Indian view of dharma is of a

very high order which strikes a golden mean between two extremes of..

1) Pravaritti and

2) Nivritti

Pravaritti means action which motives and intentions for realizing ones’ desires. Nivritti

means renunciation, sanyasa giving up everything. It strikes a balance between self

indulgence as in prevalent in the materialistic west and self negation as is preached by

Buddhism and Jainism. It underlines self control and dharma is the guiding standard for

realizing Artha and Kama. Such a higher law of dharma has always been an inspiring,

controlling and guiding factor for realizing righteousness and justice. Lord Krishna

himself declared, "whenever righteousness is on the decline and unrighteousness is on

the ascendant for the sake of upliftment of righteousness and destruction of the evil

powers and for the purpose of establishing dharma God incarnates and come into being

on the earth from age to age It is this higher law of morality, justice and righteousness

which has been continuously guiding and directing Hindu thought, spirit and action from

times immemorial and would continue to mould for the realization of dharma in a

timeless fashion.

NATURAL LAW DISTINGUISHED FROM OTHER LAWS

The natural law by its very nature and contents, differs from the positive law in the sense

that the former denies the possibility of any rigid separation of the "is" and "ought”

aspect of law and believes that such a separation is unnecessarily causing confusion in the

172

field of law, while the latter draws a sharp distinction between "is" and "ought to be"

and refuses to accept morality or "justness” as an essential element of law. The

supporters of natural law theory 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.

Natural law differs from other forms of law such as the canon law, common law,

constitutional law, international law, etc. in the following aspects

1) Natural law is eternal and unalterable but the other forms of laws are subject to

periodical changes and alterations.

2) Natural law is not made by man, it is only discovered by him, whereas other laws

are created, evolved, modified and altered by man.

3) Natural law is not enforced by external agency but every other form of law is

enforced by state, sovereign or ruler and there is coercive force behind it.

4) Natural law is not promulgated by legislation, it is an outcome of preachings of

philosophers, prophets, saints, etc. and thus in a sense it is a higher form of law to

which all forms of man-made laws should pay due obedience.

5) Unlike all other forms of laws, natural law has no formal written code. Also there

is no precise penalty for its violation nor any specific reward for abiding by its

rules.

6) Natural law has an eternal lasting value which is immutable and it has been

generally accepted that any man-made law which runs contrary to natural law

may succeed for the time-being, but it is likely to fall soon or later.

HISTORICAL EVOLUTION OF NATURAL LAW THEORY

ANCIENT PERIOD

HERACLITUS (530-470 BC)The idea of natural law was developed by Greek philosophers around 4th century BC.

HERACLITUS was the first Greek philosopher who pointed at the three main

characteristic features of law of nature, namely

173

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. The instability and frequent changes in

the early small states of Greece made legal philosophers to think that law was meant to

serve the interests of those who were in power and the people are incessantly struggling

for a better life. Therefore, there should be some immutable principle which may have

universal application for all the persons so that peace and tranquility may prevail. Thus,

these unstable political conditions gave birth to the idea of natural law which aimed at

morality and righteous conduct in human life.

SOCRATES (470 399 BC)

The name of SOCRATES occupies a prominent place among the STOIC philosophers of

the ancient time. He was a great admirer of truth and moral values. He argued that

natural physical law, there is a natural moral law. It is because of the "human insight”

that a man has the capacity to distinguish between good and bad and he is able to

appreciate the moral values. Thus, according to SOCRATES, “virtue is knowledge " and

“whatever is not virtuous is sin”. To him, justice may be of two kinds, namely,

i) Natural justice, and

ii) Legal justice.

The rules of natural justice are uniformly applicable to all the places but the notion of

legal justice may differ from place to'place depending on the existing statutory law and

social conditions of the place.

It is a variable content which changes with time and place. The reasonability of

particular law is judged by human insight and only those laws would be deemed proper

which are inaccordance with the principles of law of nature and are supported by human

174

reasoning. Thus, natural law is a specie of law which is universal and immutable and

uniformally applicable to all the persons at all the place and times. However,

SOCRATES did not deny the authority of the positive law but he pleaded for the

necessity of natural law for security and stability of the country.

PLATO (427-347 BC)

SOCRATES’ disciple, PLAOT carried further the natural law philosophy through his

concept of ideal state which he termed as “republic”. PLATO extended that only

intelligent and worthy person should be the king. He argued that justice lies in ordaining

man's life through reason and wisdom and motivating him to control his passion and

desires. In his republic, PLATO emphasized the need for perfect division of labour and

held, "each man ought to do his work to which he is called upon by his capacities ". In

other words, every person should mind his own work and not unnecessarily meddle with

other's work.

ARISTOTLE (384-322 B.C.)

STOICE had widened the meaning and scope of natural law, which no longer remained a

mere knowledge of universal and ultimate laws but extended to man’s insight which

enables him to appreciate the absolute eternal moral rules. ARISTOTLE cam out with a

more logical interpretation of the natural law theory. According to him, a man is a part of

nature in two ways.

Firstly, he is a creation of God, and

Secondly, he possess insight and reason to which enable him to articulate his actions.

ARISTOTLE defined natural law as reason unaffected by desires”. It embodies the

basic principles of justice and morality which have universal validity independent of time and place1. But ARISTOTLE did not categorically state that the positive law which is

contrary to principles of natural law, is invalid. To quote his words, ARISTOTLE said,

1 W.U.C.H.: Cases & Materials on Jurisprudence (1958) P.311

175

“so far its relation with positive law is concerned, natural law is originally different but

once the positive law has been laid down, it is not different1

Positive law should try to incorporate within it, the fine principles of natural law but it

should be obeyed even if it is devoid of the standard principles of natural law. He

pleaded that the correct approach is to reform or amend the law and not to break it. He

justified slavery and argued that slaves must accept their lot for slavery was a natural

institution. This view is, however, not tenable in the present civilized societies.

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.

Commenting on the salient features of the Greek natural law philosophy, RASCOE POUND made the following observations2 3:

1) It was the result of the view sand ideas expressed by thinkers, philosophers or

orators and not of jurists or lawyers.

2) It was influenced by politically declared laws and tribal custom which was not

differentiated in social order of those times.

3) Enacted laws were in fact the declared customs the validity of which was not

effected by their indifference to natural law principles.

4) There was a growing consciousness that law was a product of wisdom and reason

which is conferred validity.

Truly speaking, it was ARISTOTLE and not PLATO who relieved natural law from

oracular1 mess and founded it on reason. Later STOICE identified natural law with

reason which governs the entire universe and man being a part of universe, is also governed by reason. ZENO1 emphasized that man by nature is a rational creature.

Therefore, by following the dictates of his reason, he was regulating his life according to

1 Quoted by Lloyd Dennis in Introduction to Jurisprudence, (1959) P.64j ROSCOE POUND : Jurisprudence 91959) P.203 According to Greek Mythological Oracle was a place where ancient Greek consulted Gods for advice and prophecy.

176

the laws of his own nature. STOICE philosophy further paved way for the Roman legal

philosophers to develop their own theory of natural law.

STOICE CONCEPTION OF NATURAL LAW

The STOICES gave a well-defined direction and content to the words nature and natural

law. Nature was the “manifestation of the single and homogeneous spirit of the world

whose several phenomena are connected together through the common law of right

reason". The law of nature is, therefore, that “common, universal, divine and good rule

of reason which governs creatures combined in a natural association". It is not against

reason. In fact, natural law is objective reason. Brotherhood of man depends on the

observance of natural law. Civil law must be based on natural law which is sovereignty

and immutable. No legislator or government could contravene natural law which served

as a common, universal standard of right or wrong, just or unjust.

NATURAL LAW IN ROMAN SYSTEM

The theory expounded by STOICE had a great influence on the contemporary Roman

legal system. The Romans did not confine their study of natural law theory merely to

theoretical discussion but carried it further to give it a practical shape by transforming

their rigid legal system into cosmopolitan living law. The natural law philosophy

founded an expression in the Roman legal system through division of Roman law into

three distinct divisions, namely:

i) Jus civile,

ii) Jus gentium, and

iii) Jus naturale

The 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 confirmed to natural law or law of

(350-260 BC)

177

reason. Later, both these were merged to be known as “jus naturals” as Roman

citizenship was extended to everyone except a few categories of persons1.

It was due to the efforts of the Roman magistrates who were called "praetor perigrinus2 ” and "praetor urbanus3” and Roman lawyers that natural law developed systematically on

a scientific basis which finally led to the famous code of Justinian.

JULIUS STONE has assessed the contribution of Roman jurists to the development of

natural law philosophy and observed, "Greek law hardly survived as a system because it

never found its class of legal specialists, while Roman law developed the efforts of 'jursi

consults ’ and praetors into a permanent heritage of western society". Thus natural law

remained a philosophers speculation with Greeks who were living in unsettled conditions

due to political disorder at that time. The Romans, on the other hand, assigned natural

law a revolutionary role to develop legal system by active participation of praetors,

lawyers and ‘juris consults” and modifying the old “jus civile” to the changing needs of the developing society4. The Roman lawyers of the time did not think it necessary to

enter into the controversy 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.

CICERO

MARCUS TULLIUS CICERO was a great Roman lawyer, statesman and orator. His

legal philosophy is contained n his famous work “de legibus". According to him, “true

law is right reason in agreement with nature; it is of universal application, unchanging

and everlasting., and there would not be different laws at Rome and Athens, but one eternal and unchangeable law which will be valid for all nations at all times”1. Thus

CICERO supported natural law because it was creation of “reason” of the intelligent

man who stands highest in the creation by virtue of his faculty of reasoning. He believed

1 Lord LLOYD : Introduction to Jurisprudence P.83 tl Praetor Perigrims administered jus gentium that is,,law applicable to both, Roman citizens as well as the foreigners; Praetor urbanus administered jus civile4 IULIUS STONi: The Povince and Function of Law (1946) P 217

178

in the universal applicability of natural law based on general morality of the human

society.

His most profound contribution to political philosophy was his conception of natural

law. In developing his conception of natural law, he followed the idea of PLATO that the

principles of right and justice are internal and took from STOICES that a supreme

universal law existed in nature. To quote DUNNING, in Greek philosophy the

distinction between right had been regarded as source and content antecedent etc. largely

independent of law....CICERO reversed the earlier Greeks conception of the relation

between law and rights and proceeded to make right in every sense subordinate to and

dependent upon law.

Conception of natural law was taken by CICERO from STOIC philosophy, but through

him its idea spread in whole Europe and held field upto 19th century. He believed that

single universal law governs the whole universe. It is based on rational and social nature

of man divinely bestowed upon him. To quote SABINE, ‘‘it (natural law) is same

everywhere and unchangeable binding upon all men and nations. Legislation that

contravenes it, is entitled to the name of law, for no ruler and no people can make right

led to the name of law or wrong”. CICERO stated true law is right reason consonant

with or nature diffused among all men, constant and eternal, which summons to its duty

by its command and hinders form fraud by its prohibition.... To invalidate this law, by

human legislation is never right. He terms it as law of God and states that God is the

author of this law, its interpreter and its sponser. The man who will not obey it will

abandon his innerself. Thus he places emphasis on natural law in most forceful language.

He discarded theory of inequality o PLATO and ARISTOTLE and gave crowned glory

to natural law.

He believes that natural law governs the entire universe to which all human beings have

an obligation to conform. Inanimate things obey it due to natural necessity; animals due

to instinct and man should obey it due to reason. He felt that citizens obligation to state

Quoted in Lloyd's Jurisprudence (1959) P.65

179

law is not absolute but conditional. But his obedience to natural law is unconditional and

absolute. Man is not bound to obey state made laws, if these do not conform to natural

law. He goes a step further and states if state laws do not conform to natural law these

law do not deserve to be called laws. According to GETTLE, CICERO believed that

moral principles are as applicable to political matters and that true law is right reason,

comfortable to natural, universal and eternal.

INDIA

HINDU SYSTEM; SOURCE OF LAW IS GOD

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 invasion, 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 and

uninvestigated. Whether there was any conception of “natural law" (in the sense in

which the term is understood in modem times) or not, and if there was any, what was its

authority and its relation with “positive law" are the question which cannot be answered

with great certainty. However, some principles and provisions can be pointed out in this

respect. According to Hindu view, law owes its existence to God. Law is given in

“shristi” (this which is heard-known as Vedas) and “smritis”. The king is simply to

execute that law and he himself is bound by it and it and goes against this law he should

be disobeyed. “Pitranas" are full of instances where the kings were dethroned and

beheaded when they went against the established law.

TEXTS SHOWING THE IMPORTANCE OF REASON AND JUSTICE

Reason and justice have been considered by ancient Hindu smritkars guides in legal

maters.

^Srbeflff) 3 atfglfflt* fft II

180

’’Decision should not be given by basing it on shastras alone; there is failure ofdhamra

by a judgement devoid of reason

3yfrfHJrbiftfe :f3g?n ll SW: II

"In the case of divergence between "Dharmashaslras ”, a principle based on reason has

been declared lo be the right one ”

Manu also says

TTTHmflraTfi levels I

^ wsnnspfRTsrsRjni

"The "Vedas, Smritis”, approved usages, and what is agreeable to one’s soul ‘good

conscience ", the wise have declared to be the quadruple direct evidence of law”

What is agreeable to one’s “soul” suggests reason.

Though the reason used in above texts is not the same sense in which it has been

used by STOICE or ARISTOTLE, it plays a very important part in interpretation.

Principles of justice were considered as guides in matters of interpretation. So in a

different form and in a limited way principle of “natural law” had their place in ancient

Hindu legal system.

DARK AGES

NATURE TO BE OVERCOME

During dark ages the early Christian Fathers expressed views on the “law of nature”

from a theological base. Important of them is ST.AUGUSTINE. According to him, thee

union with divine is the end of law. To attain this end the physical instincts of the body

should be suppressed. Nature misleads and corrupts man, and, therefore, it should be

overcome and destroyed. The institutions of man, such as government, or property, etc.

are the products of sin. If human laws are contrary to the law of God, they are to be

disregarded. This approach is completely in contrast to the theories we have discussed

181

earlier. Later on, in medieval time, Christian Fathers modified this approach and gave a

respectable place to “natural law” .

MEDIEVAL PERIOD

The period from 12th century to mid-fourteenth century is reckoned as the “medieval

age " in the European history. This period was dominated by the ecclesiastical doctrines

which the Christian Fathers propagated for establishing the superiority of Church over eh

state. They used natural law theory to propagate Christianity and to establish a new legal

order and political ideology based on morals and theology. The Christian saints

especially AMBROSE, St;AUGUSTINE and GREGORY propagated a view that divine

law was superior to all other laws. According to them all laws are either divine or

human. Divine laws are based on nature while human laws on custom. It is the divine

nature of the natural law which makes it binding over-ruling all other laws. Saint

AUGUSTINE pointed out that divine wisdom was revealed in the scriptures. The moral

precepts or holy scriptures were in fact the principles of natural law. GIERKE remarsk

that the medieval period Christian theology centered round two fundamental principles,

namely:

1) Unity derived from God, involving one faith, one church and one empire; and

2) The supremacy of law both, divine and man-made, as a part of unity of universe.

The main tenets of the natural law theory of the medieval period may be stated as

follows:-

1) The supporters of tire theory believed that the institutions of slavery, property,

state, etc. represented the evil desires because they are not the creation of nature,

nevertheless, they are necessary for preventing or limiting the vicious tendencies

of men. The existence of state'and society is essential for the development of

morals and ethical values in man. CICERO and SENECA supported this

contention.

2) “Law” is the greatest binding force both for those who govern and the governed.

Thus the natural law theory, accepted the supremacy of law.

182

3) The greatest problem before the medieval legal thinkers and philosophers was the

correct interpretation of law. They believed in two facts of the human activities,

namely,

a) Worldly, and

b) Godly.

They are radically different from one another and there arises no question of

conflict or clash between the two. State i.e. ruler is supreme in the field of

worldly activities whereas Pope held supreme authority in the realm of Godly

activities.

4) As to the question about the exact source of legal authority in a developed society,

the majority view was that state and law were the gift of the people who agreed to

subdue themselves to their authority.

ST-THOMAS AQUINAS (1225-1274)

Among the theologicians of the medieval period, the name of THOMAS AQUINAS

deserved a special mention. He is considered to be the representative of the natural law

theory of his age. In his view, social organization and state are natural phenomenon.

AQUINAS pointed out that man can control his own destiny to a considerable extent but

it is subject to certain basic impulses such as impulse of the self-preservation,

reproduction of his species, bringing up children etc. for improving his future and

attainment of perfection. He defined law as “an ordinance of reason for the common

good made by him who has the care of the community and promulgated through reason

He maintained that “the primary precept of law is that good should be done and pursued

and an evil be avoided”. Man’s activities are directed to ensure his survival, continuity

and perfection. He must do things to achieve them and doing anything against the ends

shall be morally wrong.

St.THOMAS AQUINAS gave a fourfold classification of laws, namely

i S3

1) Law of God or external law;

2) Natural Law, which is revealed through “reason”;

3) Law of Scriptures or Divine Law, and

4) Human Laws which we now called “positive law”.

Like his predecessors, St.AQUINAS agreed that natural law emanates from “reason”

and is applied to human beings to govern their affairs and relations. He opined that

positive law should be accepted only to the extent to which it is compatible with natural law or essential law1. He regarded church as the authority conclusions were drawn from

the study of human nature. He considered “reason ” as the sole repository of social life

of man. St.AQUINAS believed in the supremacy of law because it is a means to attain

common good. He supported property rights and upheld acquisition of property by man

as he derives satisfaction from it which is helpful in maintenance of peace and order in

the society. He, however, held that use and enjoyment of property should not be confined

only to the person acquiring it but it should extend for the common benefit of all the

members of the society. Thus, it may be summed up that primary of natural law was the

fundamental starting pint of the legal philosophy of St.THOMAS AQUINAS.

SUAREZ (IN THE 16TH CENTURY)

NATURAL LAW

"Natural law is that law implanted in human soul through which right is distinguished

from wrong. Its source is God the creator, and its end is the good of the creature ”, It

represents not only a judgment of human reasons, but also a command of God. Natural

law is, therefore, divine law, for it has a divine mandate and cannot be dispensed with by

any early authority. It embraces various classes of principles and precepts and constitutes

a code of conduct applicable to all times, places and men. It is immutable. According to

SUAREZ, the “jus naturale ” and “jus 'gentium ’’ are distinguishable from each other, for

jus gentium, unlike jus naturale is a product of human need and human will, its principles

owing origin to social interests and requirements.

1 FREEDMAN . Legal Theories, VoI-II by W.A. Dunning P.I36

184

‘‘The distinct ion jus naturale and jus gentium is primarily that between what is morally

necessary and what is socially expedient The former must always be obeyed, the latter

is obeyed when it becomes a part of civil law. The jus gentium may be distinguished

from the civil law because jus gentium embodies “the sense of customary right no of one

nation or province, but of all”. It grows up as an unwritten usage. The precepts of jus

gentium are the common judgments or all or nearly all people, and therefore, SUAREZ

assigns to jus gentium a position near to jus naturale than to jus civile. To him private

property and slavery represent jus gentium.

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. General awakening among the masses coupled with new discoveries of science during the 14th and 15th centuries shattered the foundation of

established values. That apart, tremendous growth of trade and commerce in European

countries created new classes in the society which needed greater protection from the

state. The cumulative effect of all the developments was that there was a general wave of

nationalism and a demand for absolute sovereignty of the state and supremacy of the

positive law overthrowing the dominance of the church. New theories supporting the

sovereignty of the state were propounded by rationalist politico-legal thinkers such as MACHIAVELLI, JEAN BODIN1. As a result of these developments temporal authority

of the church and the theological natural law received a serious blow and finally it

dwindled giving way to natural rights of man and the state. The natural law theories

propounded by GROTIUS, LOCKE and ROUSEAU revolutionized the existing

institutions and held that “social contract" was the basis of the society. HOBBES used

natural law theory to perpetuate reactidnary movement and justify “status quo" for the

preservation of peace and protection of individuals from perpetual conflict and chaos.

HUGO GROTIUS (1583-1645)

1 MACHIAELLl wrote Prince in 19S3 supporting the authority of the state and natural rights of man. Jean Bodin’s La Republique published in 1577 also supported absolute authority of the state over the temporal church

185

HUGO GROTIUS was a great statesman, philosopher and jurist of his time. He was

Dutch scholar and a staunch supporter of renaissance and reformation. He propounded

the theory of functional natural law in the Laws of War and Peace (1625) and formulated

the principles of international law which were equally applicable to all states, both,

during war and peace. He referred these principles of law as nations of natural law. He

departed from St. THOMAS AQUINAS scholastic concept of natural law and “reason ’’

and held that natural law was not just based on “reason’’ but on “right reason” i.e. “self-

supporting reason” of man. As to the question whether the subjects should disobey the

ruler who did not act in conformity with the principles of natural law, GROTIUS answers

that howsoever bad a ruler maybe, it is the duty of the subjects to obey him. Though

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 tire 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.

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 states and their freedom to regulate internal as well as external

relations.

GROTIUS believed that man, by nature is peace loving and desires to live according to

dictates of reason. He, therefore, treated “natural law as so immutable that it cannot be

changed by God himself’. GROTIUS advocated a view that natural law is based on the

nature of man and his urge to live in peaceful society. He considered divine la as the

grand mother, natural law the parent and positive law as the child. Thus, he placed

natural law at a higher footing as compared with the positive law.

GROTIOUS classified all law as being natural i.e. based on reason and volitional i.e.

based on will. He called the law of nature as “jus natural” and defined as “the dictate of

186

right reason, indicating that any act, from its argument and disargument with the

national nature, has in its moral turpitute or moral necessity’'.

GROTIUS’s law conceded that there is a body of universal law, the law of nature or

right reason which equally applied to all people and is absolute as supreme reason itself.

He believes that the law of nature again is unchangeable.

GROTIUS formulated his conception the law of nature on the basis of right and justice

embodied in the essential, universal and unchangeable quality of human nature. He

rejected the idea that all law, justice and rights have their basis in utility or expediency.

Human nature and reason constitute the original fountain of all laws, utility is necessary.

Civil law, to GROTIUS is rooted in the law of nature. He held that there were certain

principles of universal recognition. If they represent the necessary deduction form the

principles of nature, they fell under the category of law of nature, if they represent the

deliberate choice of all men, they belong to the law of nations.

He defined natural law in these words, "the law of nature is a dictate of right reason

which points out that an act according to it is or is not in conformity with rational nature,

has in it a quality of moral baseness or moral necessity and that in consequence such an

act is either forbidden or enjoyed by the author of nature i.e God”.

Regarding distinction with voluntary laws, he says, “the distinction between these kinds

of law is not to be drawn from the testimonies themselves... but fro the character of the

nature. For whatever cannot be deducted from certain principles by a sure process of

reasoning and yet it is clearly observed everywhere, must have its origin in the free will

of man...the volitional law is not based upon absolute reason but upon universal consent

rendered by unbroken custom and testiihony of those who are skilled it”. Any institution

of universal acceptance is national law if it satisfies reason, otherwise it represents jus

gentium. He distinguished even jus natural as:

1) Pure law of nature representing state of nature prior to the formation of society,

and

187

2) Law of nature after the formation of society but prior to civil law

He suggested that criterion for recognition of natural law is conscience of normal

individual and general among best minds and practice of most civilized nations. In short

his criteria was “common dictates of conscience”. He based his theory on international

law on this.

Following facts may be noted about jus natural.

1) The natural law is the dictate of right reason, agreeing with rational nature and as

such with God.

2) Natural law is permanent, eternal, universal, authoritative and absolute reason

itself and is unchangeable.

3) Its sanction is to be found in rational nature. It is based on ideal of peace and

harmony all over the world.

THOMAS HOBBES (1588-1679)

HOBBES theory of natural law was based on natural right of self-preservation of person

and property. He used natural law to justify the absolute authority of the ruler by

endowing him power to protect his subjects. Thus he completely denouned the religious

and metaphysical character as natural law.

HOBBES based his theory on social contract. He had himself participated in the civil

war between King Charles-I and British Parliament and supported the former. Therefore,

he obviously supported the absolute power and authority of the ruler. He accepted the

ideal principles underlying natural law' but did not give it much credence for it lacked

sanction which, in his view was essential to command obedience from the people.

According to HOBBES, prior to “social contract", man lived in chaotic condition of

constant fear. The life in the sate of nature was “solitary, poor, nasty, brutish and

short”. In order to secure self-protection and avoid misery and pain, men voluntarily

188

entered into a contract and surrendered their freedom to some mightiest authority who

could protect their lives and property. This led to the emergence of the institution of the

"ruler" which later assumed the form of the state. Thus HOBBES was a supporter of

absolute power of the ruler and subjects had no rights against the sovereign who had to be

obeyed howsoever bad or unworthy he might be. Obviously, church also had no power

or authority over the sovereign.

It would thus be evident that HOBBES used natural law theory to support absolute

authority of the ruler. In his famous work ”leviathan” which appeared in 1651.

HOBBES observed that law is depended upon the sanction of the sovereign. In his

opinion, "governments without sword are but words, and of no strength to secure a man at all”1. He, therefore, reiterated that civil law is the real law because it is commanded

and enforced by the sovereign. Taking inspiration from HOBBES theory, later writers

and legal thinkers propounded their theories of utilitarianism, materialism and

absolutism. The AUSTIN’S imperative theory of law is essentially based on HOBBES’

doctrine of absolutism of the sovereign.

NATURAL RIGHTS AND NATURAL LAW

As law of nature is a precept or general rule, found out by reason by which a man is

forbidden to do that which is destructive to his life or takes away the means for

preserving the same; and to omit by which he thinks it ma be best preserved. According

to HEARNSHAW, ‘‘the right of nature... is the liberty, each man hath, to use his power

as he will himself for the preservation of his own nature i.e. to say of his own life Right

consiseth in liberty to do or to forbear: whereas law determineth and bindeth to one of

them; so that law and right differ as much, as obligation and liberty. Right at best

implies a treacherous liberty whereas 'the natural law implies rule found by reason.

Natural right entitles to discord everything that leads to war. But war can be avoided if

each individual abandons his natural right to all things and his abandonment is

reciprocal and universal which forces him to enter into a convent. ”

1 Quoted from Freedman’s Legal Theory (3rd Ed.) P.121

189

The law of nature presents individual other to care for his own absolute liberty and

defend it with all his power and resources or to enter into contract and surrender a part of

liberty to common power which might serve the liberty of all. Justice and injustice

implies the keeping or breaking of comments and necessitates, some power to enforce

that common power there is no justice or injustice. “Convents without the sword are but

words and of no strength to secure a man at all". This points to the necessity of common

authority. Thus, according to HOBBES to quote Wayper “natural laws are only

counsels of prudence They do not imply anything like common good. They only seek

to bring into being those circumstances - necessary to fulfill each individual government.

JOHN LOCKE (1632-1704)

As stated earlier, the new political theories which emerged as a result of renaissance,

favoured absolute sovereignty of the state - undermining the importance of the

individual. Therefore, in order to support the rights of individual against the absolute

power of the sovereign, a new interpretation of the natural law and social contract

theories became more or less necessary. JOHN LOCKE had witnessed glorious

revolution of 1688 and the wave of individualism in England which had permeated the

political and legalities in Britain at that time. He, therefore, come out with a new

interpretation of the social contract rejecting HOBBES’s earlier concept of state of

nature. He stated that the life in state of nature was not as miserable and brutish as stated

by HOBBES, instead it was reasonably good and enjoyed except that the property was

insecure. In order to ensure proper protection of property man entered into the “social

contract” surrendering only a part of his rights, and not all the rights as contemplated by

HOBBESIAN theory.

Thus, the natural rights of men such as'rights to life, liberty and property remained with

him and only the right to maintain order and to enforce the law of nature was surrendered

by him. The purpose of the state and law was to uphold and protect the natural rights of

men. So long as the state fulfils this purposes, its laws were valid and binding but when

190

it ceases to do so, the people have a right to revolt against the government and overthrow it1. Thus LOCKE emphasized on the protection of three main rights, namely,

i) Right to life;

ii) Liberty, and

iii) Property

Which were inalienable and necessary for the well being of the individual.

LOCKE pleaded for a constitutionally limited government. The nineteenth 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.

LOCKE’s conception of nature of state has been criticized by some jurists on the ground

that if the life in the state of nature was happy and enjoyable, where was the necessity to

install a government or state? Besides, LOCKE’s theory gives an impression as if there

might have been a social contract actually, which in fact is only a historical fact.

VICO

GIAN BATTISTA VICO, an Italian jurist and philosopher, founded the psychological

historical method in the study of political philosophy. His “scienza nuova” is a

philosophy of history, containing a body of philosophical principles to explain the course

of human progress. To VICO, the phenomena of humanity are reducible to three

categories, i.e.

i) Knowledge,

ii) Will, and

iii) Power

VICO ON THE LAW OF NATURE - VARIABLE

1 LOCKE’s famous work Two Treatises of government which appeared in 1776 became a model for the American Bill of Rights, 1776 and inspired American revolutionaries to fight against the British consequently leading to the American Declaration of Independence in 1776

191

VICO is concrete and historical to him, the law of nature, like al laws applicable to

human beings, is not stationary but progressive, varying with the stage of the growth of

the community. The law of nature is not the same for all men, all places and al times.

Governments and human laws, like the law of nature, vary according to the development

of human mind and human intelligence as also according to the needs of the times.

VICO does not believe in the universal validity of reason and, therefore, holds that in al

human affairs conceptions of law, authority and rights must vary. As to the origin of the

state VICO believes that it is not isolated individuals but whole families, built already on

half civic basis, which come together.

JEAN ROUSSEAU (1712-1718)The changed circumstances and political upheavals of the 18Ul century brought about a

rational transformation in the thinkers of that time. ROUSSEAU gave a new

interpretation to “social contract” and “natural law” to suit the new situations. He

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 this 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, state and law are the product of general will1 of the people and not of "reason" as proclaimed by the 17th century legal

philosophers. The essence of ROUSSEAU's theory of general will was that while the

individual parts with his natural rights, in return he get civil liberties such as freedom of

speech equality, assembly etc. The state 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. It would thus be' seen that while LOCKE laid emphasis on the

individual. ROUSSEAU favoured people's sovereignty. His natural law theory is

confined to the freedom and liberty of the individual. For him, state, law, sovereignty,

general will, etc. are interchangeable terms.

1 ROUSSEAU’s general will was called vo lonte generate.

192

His theory is considered to be the fore-runner of the modem jurisprudential thought and legal theory1. It generated a wave of nationalism in Europe and America which

eventually led to French revolution against state tyranny and American war of

independence.

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 acquired rights and recognized only the former which were necessary for the

freedom of individual. He favoured separation of powers and pointed out that the

1 unction of state should be to protect the law. KANT’s philosophy destroyed the foundation of natural law theories towards the end of 18th century which suffered a death

blow at the hands of BENTHAM in the early 19Ul century because of his theory of

hedonistic individualism. He propounded his famous theory of “categorical imperative ”

in his book entitle “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 and does not 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 die state, according to him, is to ensure observance of law.

1 SEAL C.W.: Foundation of modern jurisprudence (1958) P.72

193

KANT’S DOCTRINE OF MORAL REASON - CATEGORICAL IMPERATIVE

In KANT the law of nature is conceived as a principle of human reason - kind of rational

system capable of rational deductions on ethical lines. Such a “pure reason ” cannot be

derived from empirical observations or by a process of induction. According to him the

law of reason is a purely logical category not influenced by external factors or ends or

empirical choices or experiences. Law of reason is a moral imperative - it is categorical,

obligatory in the form of command directing the human will to do what is morally good

fro all at all times and places irrespective of ends, considerations or selfish desire. KANT

in his "foundation of the metaphysics of morals" makes a distinction between

“hypothetical and categorical imperatives" He says "all imperative command either

hypothetically or categorically. The former present the practical necessity of possible

action as a means to achieving something else which one desires 'or which one may

possibly desire ’ The categorically imperative would be one which presented an action

as of itself objectively necessary without regard to any other end". He distinguishes

“categorical imperative” from “hypothetical imperative" the latter says “ifyou want to

do this". The “hypothetical imperative" is selfish, interest originated and can never be

universal imperative. “Categorical imperative" considers duty without any particular

regard. It is to be done simply because it is a command of free will. It is to be done for

its own sake because it is a dictate of one’s own reason. The call is imperative or

obligatory since it has to be compiled with in ail times and at all places. It is of

unexceptionable nature it is categorical. Thus, KANT’s test of rationality of a imperative

is its universally. Take an imperative, make it universal, so as to be acceptable to all and

its moral test is complete. KANT, therefore, was of the view that the absolute imperative

duty has no reference to any external ends to which the will is directed, but simply the

right direction of will itself.

It follows from this that moral law cannot have any particular content. It cannot tell us

any particular things that we are to do or to abstain from doing; because all particular

things have in them an empirical and contingent element, and the moral law can have no

reference to any such element. Hence moral law cannot tell us what the “matter” or

194

content of our actions ought to be; it can only instruct us with regard to the “farm ”. But

a pure form, without any matter, must be simply the form of law in general. That is to

say, the moral law can tell us nothing more than that we are to act in a way that is

comfortable to law. And this means simply that our actions must have a certain self

consistency - i.e. that the principles on which we act must be principles that we can adopt

throughout the whole of our lives, and that we can apply to the lives of others. KANT is thus led to give as the content of the “categorical imperative" this formula1. “Act only

on that maxim 'or principle’ which thou const as the same time will to become a

universal law ”. He illustrates the application of this formula by giving few examples.

It is wrong to break a promise, because the breach of a promise is a kind of action which

could not be universalized. If it were a universal rule that everyone were to break his

promise, whenever he felt inclined, no one would place an reliance on promise.

Similarly, we could not without a certain absurdity, have universal suicide or universal

stealing or even indifference to the misfortunes of others. Since then, we cannot really

will that such acts should be done by every one, we have no right to will that we

ourselves should do them. In fact moral law - act only in such a way as you could will

that everyone else should act under the same general conditions.

Thus ''categorical imperative" is not a subjective choice but an objective necessity.

Being objective it is an end in itself. The individual, who is an embodiment of this

imperative is consequently an end in itself. KANT accordingly propounded two

principles.

a) Act in such a way that maxim “principle " of your action can be made the maxim

of general action. This is his farrfous “categorical imperative ”.

b) The other principle which KANT expounded was the doctrine of the “autonomy

of the will”. This, however,, did not mean the freedom to do as one pleases. An

action to be free is an action emanating from reason. “There can be nothing more

dreadful” said KANT “than that actions of a man should be subject to the will of

1 Metaphysics of Moral, Section - II

195

another”. The freedom of will is to follow one’s own determination. Of course,

reason calls a man to act as a consistent whole. He ought to regulate his conduct

by making some agreement with himself. Such agreement is the only test which

distinguishes a same man from an insane. As a corollary of the "categorical

imperative” KANT also postulated the basic concept of ‘‘innate right” belonging

to early one by nature independent of all juridical acts of experience, "the birth

right of freedom” that is in dependence of the arbitrary will of another.

c) “An action is right” and KANT “only if it co-exist with each and every man’s

free will according to the universal law”. This was his “principle of innate right

or freedom”. This principle of innate right or freedom from restraint or

subjection is mean to maxim individual freedom and individual rights so as to

prevent the emergence of despotic regime. Hence the sole function of the state is

to ensure the observance of law. KANT by his theory of natural rights ensure

that individual should not allow himself to be made the means to an end since he

is an end in himself.

MODERN PERIODThe natural law theory received a set back in the wake of 19lh century pragmatism. The

propounders of analytical positivism, notably, BENTHAM and AUSTIN rejected natural

law on the ground that it was embiguous and misleading. BENTHAM called it as

"simple non-sense” since absolute equality and absolute liberty were repugnant to the

existence of the state. The doctrines propagated by AUSTIN and BENTHAM

completely divorced morally from law. The historical researches concluded that social

contract was a myth. All these development shattered the very foundation of the natural law theory in 19lh century.

f 9TH CENTURY HOSTILITY OF NATURAL LAW

DAVID HUME rejected the theory of natural law alleging that it was vague, obscure and

contrary to empirical approach to law. Thus he destroyed the theoretical basis of natural

196

law by his analytical positivism. The evil effect of individualism gave way to the new

ideology of collectivism.

The theory propounded by the great French philosopher AUGUST COMPETE further

struck a severe blow to the dwindling natural law theory. He denounced natural law

theory as false, non-scientific and based on super natural beliefs.

The emerging trend of acknowledging the importance of historical school which

considered law as a product of people’s conscience, brought further decline of natural

law. The roots of natural law lay in precepts like morality, justice, reason, etc. which the

positivists denounced as being unreal, unhistorical and non-scientific. The dominance of

analytical positivism had completely divested law from morality and justice, thus

destroying the very foundation of the natural law.

20TH CENTURY REVIVAL OF NATURAL LAW

The nineteenth century legal theories which over-emphasized positivism failed to satisfy

the aspirations of the people because that exaggerated importance to historical approach

giving undue importance to cultural and social characters of legal system had given rise

to Fascism in Italy and Nazism in Germany. The impact of materialism on the society

and the changed socio-political conditions legal thinkers to look for some value-oriented

ideology which could prevent general moral degradation of the people. The world war-I

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 form the earlier one. The new approach is obviously concerned

with the practical problems of the society and not with abstract ideas. As Dr.ALLEN

rightly pointed out, "the new natural'law is value loadedvalue-oriented and value-

conscious and is relativistic and not absolute, changing and varying and not permanent

and everlasting in character. It represents a revolt against the determination of

historical school on the one hand and artificial finality of the analytical school on the other hand1". The main exponents of the new revived natural law were RUDOLF

1 ALLEN C.K : Law in the Making (1964) P.22

197

STAMMLER, Prof. RAWLS, KOHLER and a few others whose contributions are

discussed herein.

RODOLF STAMMLER (1856-1938)

STAMMLER was professor of Roman law in various universities of Germany. He

succeded Prof KOHLER as professor of law in the university of Berlin. He defined law

as, "species of will, other-regarding, self-authoritative and iviolable”. For him, a just

law was the highest expression of man’s 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 respect, and

2) The principle of immunity participation.

With a view to distinguishing the new revived natural law from the older one, he called

the former as “natural law with variable content According to him, law of nature

means "fust 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 all1.

PROFESSOR RAWLSthProfessor RAWLS made significant contribution to the revival of natural law in the 20

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 maxim

benefit of the community as a whole.*

FRANCOIS GENY (1861-1944)

GENY was greatly impressed by the STAMMLER’s natural law with variable content

and he devoted himself to the revised natural law. He was opposed to the empiricism of

the historical and analytical schools. He believed that law has to be relativistic and not

1 LLOYD DENIS : Introduction to Jurisprudence : (1959) P.87

198

static or immutable like the 19lh century natural law. He underlined the importance of

judicial decisions in moulding a legal system. GENY developed his natural law theory

within the frame work of the positive law.

JOSEPH KOHLER (1849-1919)

As a neo-Hegelian, KOHLER defined law as "the standard of conduct which in

consequence of the inner impulse that urges man 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 it shapes itself as the society advances morally and culturally in course of evolution. He tried to free the 19th century natural law form the "rigid” and “a priori”

approach and attempted to make it relativistic, adapting itself to the changing norms of

the society.

DE VECCHIO asserted that natural law is the principle of legal evolution which guides

mankind and law towards greater autonomy of the individual.

GUSTRAY RADBRUCH (1878-1949) was initially a positivist and treated “law as law”

(Gasetz as Gasetz). But the mass-massacre during the Nazi regime turned him to a

moralist and he discarded separation of morals from law. He upheld the right of the

citizens to disobey such positive laws if they are contrary to ultimate rules of justice.

Another twentieth century natural law jurist FINIS interpreted natural law as a set of

principles of practical reasonableness in ordering human society. He emphasized on six

values, namely;

1) Life,

2) Knowledge, that is perfect truth over false,

3) Performance,

4) Appreciation for beauty,

5) Practical reasonableness in shaping ones own character,

6) Religious freedom.

199

The function of law according to FINIS is to promote those values and ensure justice and

order in the society.

LON LUVQIS FULLER (1902-1978)

Professor FULLER is also considered as one of the leading supporters of the modem

natural law philosophy. He emphasized on the role of "reason" in legal learning and

believed that law and morality are necessarily co-related. He said that good order is law

which corresponds to justice or morality. Thus he denied any rigid separation between

“is" and "ought” aspect of law. He brought out an excellent exposition of “legal

positivism" and “natural law” which according to him, were two different legal

philosophies competing at that time. FULLER pointed out that the essence of legal

positivism is sharp distinction between law “as it is” and 'as it ought to be’ whereas

natural law theory desires this rigid separation of “is” and “ought” which has been a

cause of great confusion in the existing legal system.

Professor FULLER analyzed the concept of morality and its relation with law in great

detail. He distinguishes morality as it is from morality as it ought to be and calls the

former as "morality of duty” and the latter as "morality of aspiration”. He further sub­

divides moral duties into affirmative actions or duties and forbearances which he called

"negative duties ”.

According to him, morality of duty includes basic requirements of social living whereas

morality of aspiration mean good life of excellence e.g. forbearing from indulging into

extra-marital sex activities. Morality of duty can be generally enforced by law but not the

morality of aspiration.•r

FULLER believes that law is a purposive system, the purpose being "to subject human

conduct to the control and guidance of legal rules ". He thinks that every workable legal

system must comply with eight requirements in order to make the law really effective.

These requirements are:-

1) There must be rules definite rules.

200

2) The rules must be well published.

3) There should be no abuse of retrospective legislation.

4) The rules must be easily understandable,

5) The rules must be practicable and not require a person to do something which is

beyond his power or capacity,

6) The rules must not be contradictory or inconsistent with any other existing rule.

7) The rules should not be subject to frequent changes, and

8) There must be congruence between the rules promulgated and their actual

administration.

Thus, FULLER emphatically sated that fulfillment of all these requirements is necessary

for establishing rule of law in the society. He calls these requirements as "inner morality

of law" which represents the procedural aspect of the modem natural law theory.

Professor H.L.A. HART has criticized FULLER’S theory of natural law for it confuses

"morality" with "efficiency”. Unlike FULLER, he does not advocate any minimum

universal rules but considers "human conditions ” necessary for an orderly society.

H.KRABB

The Dutch jurist H. KRABBE believes strongly in the “social conscience" or

"recognition ” of law by those to whom it applies, that he admits no other authority as

true source of law. The collective conscience - the natural law has to be explored by

judges, legislators, intuitively depending on their moral sense and intelligence.

GUSTAV RADBRUCH (1878-1949)

German jurist and philosopher GUSTAV RADBRUCH is the principle exponent, of the

revival of natural law doctrine in the post-war Germany. RADBRUCH was a witness to

the collapse of the Weimer Republic in 1933 and HITLER’s coming into power. Under

HITLER Nazi Germany embarked on committing atrocities against individuals, racial

group like Jews on an unprecedented scale depriving them of their life, liberty, property,

freedom and dignity. The World War II also witness crimes against humanity, crimes

201

against peace and war crimes perpetrated by Nazi Germans in complete violation of law,

justice and moral rules finally culminating in the Nuremburg Trial 1946 for the

punishment of Nazi men. As a reaction against the horrors, of Nazi period GUSTAV

RADBRUCH expounded the doctrine of “higher law ” to demonstrate that all the Nazi

acts were contrary to all canons of natural law and severely condemned the Nazi rule.

RADBRUCH declared that a general acceptance of positivistic philosophy in the pre-

Nazi Germany made smoother the route to dictatorship. He in the post-war period,

enunciates the doctrine of "higher law, inner morality it law”, to demonstrate that

outrageous Nazi laws were not laws as they were obvious to the moral and natural justice.

He declared the right of the citizens to disobey such positive laws if they are contrary to

ultimate rules of justice for “lawless law" must, therefore yield to justice.

PABIN

The Beligian jurist JEAN DABIN declares that positive law has to be inconformity with

rules of justice and ethics. He identifies rules of natural law with higher rules of ethics

postulated by reason. The positive law ought to reflect the higher values of society and

be a reflection of public good and justice. He says "natural law dominates positive law

in the sense that, while positive law may add to natural law, or even restrict it, it is

prohibited from contradicting it".

DUGUIT

The Belegian jurist JEAN DABIN’s concept, similarly DUGUIT’s “social solidarity"

and version of natural law with socialized content.

Even positivist like... HART has expounded the doctrine of “minimal version ” of natural law in The Concept of Law saying1 that a legal system must satisfy certain moral

requirements. He is of the view that extra legal moral standards may be appropriate in

the statutory or constitutional interpretation. He says there are certain natural facts and

1 HART, The Concept of Law, PP 189-195 (1972)

202

aims of “being constituted as men are...in which certain content of natural law is a

necessary " and there are...

a) Human vulnerability,

b) Approximate equality,

c) Limited sources

d) Limited human understanding, and

e) Desire for social life

CRITICAL APPRAISAL OF NATURAL LAW THEORY

A brief survey of the natural law theories would reveal that the concept has been used to

support different ideologist from time to time. It has been used to support absolutism,

individualism and has even used by revolutionists to overthrow the government. The

contribution of natural law philosophy to the development of law and legal system is by

no means les important. The natural law principles of justice, morality and conscience

have been embodied in various legal systems. Natural law being regulated by law of

nature is inevitable and obligatory whereas man-made positive laws are arbitrary and

contingent. The natural law is not variable since it emanates from “human reasoning”

which is known for its uniformity and general acceptance. Natural law also helped in

denouncing the divine authority of the Church. It generated a favourable climate for

reformation, renaissance and provides foundation for fundamental human rights.

Despite the merits of natural law philosophy, it has been criticized for its weakness on the

following grounds:-

1) The moral propositions i.e. “ought to be " may not always necessarily conform to

the needs of the society. For instance, it is natural for men to beget children as it

is for trees to bear fruit. But the factual position may be different since many

countries including India may like to restrict the growth of their population by

resorting to family planning devices. While on the other hand, no one would ever

like to restrict the growth of fruits on trees. Therefore, giving birth to children

may be a natural phenomenon but it may not always be considered as obligatory

moral duty of men to conform to this conduct.

203

2) The concept of morality is a varying content changing from place to place,

therefore, it would be universal applicability of law. For example, one society

may adhere to monogamy while another may permit plurality of marriages1.

3) The rules of morality embodied in natural law are not amenable to change but the

legal rules do need a change with the changing needs of the society.

4) Legal disputes may be settled by law-courts but the disputes relating to morality

and law of nature cannot be subjected to judicial scrutiny, and even if they are

challenged in a court of law, the correctness of the verdict may always be

questioned since it is based on subjective discretion of the judge.

5) Though apparently law and morality may appear to be in conflict with each other,

the fact remains that in order to decide whether a particular law is "just" or

"irtjust ”, it has to be tested on the basis of the principles of morality.

But that as it may it cannot be denied that natural law has played a crucial role in shaping

the law. Its significance lies in the fact that an unjust law may not last long and it is

bound to lose public support and in absence of obedience by the people, it is bound to

wither away sooner or later.

NATURAL LAW IN ENGLISH, AMERICAN & INDIAN LEGAL SYSTEMS

The principles of natural law have been incorporated in most of the legal systems of the

world. Notably in England, America and India, the natural law philosophy occupies a

dominant place in the justice delivery system. A brief account of the natural law as

embodied in the legal systems of England, America and India is given below.

ENGLAND

Natural law never flourished as a theofy in England, nevertheless its principles have

found their place in the body of the English law. Many concepts of the English law such

as "quasi-contract”, the doctrines of unjust enrichment, trust, etc. are founded on

"natural law ” principles. Again, the emergence of equity law in England and principle

of "equity, justice and good conscience" has exercised great influence on the English

1 In India, bigamy is an offence but Muslim law permit a Muslim to have more than one wife

204

judicial system and development of common law in that country. The doctrine of judicial

control of administrative tribunals, conflict of laws, recognition of foreign judgments, etc.

are essentially based on the principle of natural justice.

AMERICA

The American legal system has also been greatly effected by the natural law philosophy.

In fact the American war of independence has been fought under the umbrella of natural

law theory which justified people’s revolt against an irresponsive and irresponsible ruler.

The American bill of right which guarantees certain inalienable rights such as right to

life, liberty, equality, etc. is essentially an outcome of the acceptance of natural law

philosophy in United States. The supreme court’s power of judicial review which

reasonably limits the power of legislation, derives its force from the principles of natural

law. The principles of natural justice are being extensively used by American courts in

determining the validity of executive actions of the government and the laws enacte dby

the legislature.

INDIA

Apart from the fact that modem Indian judicial system having been founded on the

British pattern, the fine principles of equality, justice and good conscience and natural

justice are bound to find place in the Indian law. the higher values of universal validity,

righteousness, duty, service to mankind, sacrifice, non-violence, etc. were already

incorporated in the ancient legal system. For ancient Indian philosophers, natural law

"i.e. the clharma" was neither a cult, nor a creed or an ideology in Western sense of the

term, but it was righteous code of conduct prescribed for living an orderly life in the

society. The vedic concept of "Rita’' has reference to law of nature which when applied

to mortal world, signifies the moral law or the external law of right and "reason ”, The

principles of natural law embodied in “dharma ” referred to duties of man towards gods,

sages, men, lower animals and creatures. It has been characterized "as a belief in the conservation oj moral values ”1.

1 GOKHALE B.G.: Indian Thought Through Ages (1961) P.24

205

During the medieval and British period in India, natural law found its expression in the

religious preaching of RAMANUJA, SANKARA, KABIR, NAYAK, SWAMI

DAYANAND, RAJA RAM MOHAN ROY, etc. who reiterated the vedic philosophy to

re-establish the age-old Indian values of life. The “hhakti culture” in India re-enforced

the old Indian values of truth, righteousness, morality and justice. Gandhiji laid great

emphasis on truth, non-violence and righteous conduct.

The natural law philosophy suffered a temporary set back during the Mughul rule in

India. The vast majority of Hindu population was left untouched by Muslim rule because of the internal dynastic clashes and political upheavals1 which made things were. The

advent of the British rule in India, however, brought a sign of relief against irrational

Mohammedan laws. The British ruler gradually introduced their own laws replacing the

Islamic laws. The personal laws of Hindus and Muslims were, however, left untouched

as a matter of political expedience, since it was likely to antagonize the sentiments of the

indigenous native population. The British adopted two methods to remove the defects in

the then existing Indian law. In matters, not governed by any law, they applied the

doctrine of equality, justice and good conscience in order to introduce English law in

India. Secondly, they started codification of laws in order to ensure certainty, uniformity

and rationality of laws. The Indians were, however, denied their civil liberties and

political rights and their nationalist movement was ruthlessly suppressed in order to retain

British supremacy in India.

POST-INDEPENDENCE PERSPECTIVE

As a result of long British rule in India, certain principles of natural law enshrined in the

English law' automatically found place in the Indian law which was broadly modified on the British laws. The principles of natural justice2 *, doctrine against bias, judicial review,

reasoned decisions and many other precepts of administrative law are based on principles of natural law. The law of trusts'5, specific relief4, doctrine of election1, rule against

1 Dr DHYANI S.N;: Fundamentals of Jurisprudence - The Indian Approach (1992) P.87 ■ These principles are contained in the maxim “nemo judex m causa sua" i.e. no person shall be a judge inhis own cause and “audi alteram partem " which means “hear the other side "■’ The Indian Trusts Act 18724 The Specific Relief Act, 1963

206

perpetuity1 2 etc, have been borrowed from the English doctrine of equity, justice and good

conscience.

It must be stated that the principles of natural law find a prominent place in the

constitution of India. The provisions relating to preamble, fundamental rights (part III)

and directive principles of state policy (part-iv) amply show that the framers of the Indian

constitution were particularly conscious about the inclusion of natural rights in the

constitutional document. The right to equal justice and free legal aid (Art.39A) and

workers participation in management of industries (Art.43A) have further been inserted in the constitution by the 42nd constitution "amendment” Act, 1976 to ensure adequate

protection to poor and indigent persons.

The provision of Art-31 of the constitution which provides adequate protection to civil

servants against arbitrary dismissal, removal or reduction in rank is also based on the

principle of natural justice.

The basic structure theory propounded by the supreme court of India in “Kewawananda Bharti V. Slate of Kerala3" furnishes the best illustration of judiciary’s zeal to incorporate

the principles of natural law in the constitutional jurisprudence. Adopting the 20th century

revivalist approach to the natural law philosophy, the Apex Court ruled that fundamental

rights are not absolute and immutable but they are relative in nature and changeable in order to build a "just” social order4. The supreme court affirmed the doctrine of basic

structure in Minerva Mill Ltd. V. Union of India-1. The court held that fundamental right

enshrined in Part III and the directive principles of state policy contained in part IV of the

constitution, taken together constitute the core of the Indian constitution and form its

conscience. The doctrine has given a new shape to tire Indian constitutional mechanism

1 Section 35 of the Transfer of Property Act2 Section 14. Ibid3 AIR-1973 SC 1461. The basic structure may be said to consist of (1) supremacy of the constitution, (2) democratic republican form ol government (3) secularism (4) separation of powers and (5) federal character of the constitution4 observations of Mathew J. m Keswanand Bharti's case which is also called the Fundamental Rights case (AIR 1976 SC 1461)"AIR 1980 SC 1789

207

by postulating new ideals and values in order to strengthen the cause of democracy. It

has become a sheet anchor of individual liberty and social justice1.

The principle of natural justice was earlier confined to only judicial and “quasi-judicial"

enquiries and did not extend to administrative actions. But with the decision in Menaka Gandhi case2, the scope of natural justice principle now extends even to purely

administrative actions. The supreme court, in this cases noted, “in applicability of the

doctrine natural justice, there can be no distinction between 'quasi-judicial’ and an

administrative function. The aim of both administrative enquiry as well as 'quasi-

judicial’ enquiry is to arrive at a just decision and if a rule of natural justice is calculated

to secure justice, or to put in negatively, to prevent miscarriage of justice, it is difficult to see why it should not be applicable to an administrative function3.

The setting up of the administrative tribunals, family courts, consumer redressal forums,

free legal aid services, lok adalats, human rights commissions, etc. are directed towards

promoting the cause of justice and providing speedy relief to aggrieved persons against

injustices. The supreme court’s contribution to human rights jurisprudence through judicial activism and public interest litigation4 has revived people’s faith in justice

delivery system in India. These new developments evince that the principles of natural

law and natural justice embody higher values of life, liberty, equality and justice have

gained increasing importance in the Indian legal system so that a social order with just

and humane conditions may be accomplished as contemplated by the framers of the

constitution.

1 Article-392 Menaka Gandhi V Union of India. AIR 1978 SC 597 (626)3 Menaka Gandhi V Union ofindia. AIR 1978 SC 597 (626)4 Examples are. S P Gupta V. Union of India & others, AIR 1982 SC 149 (Judge’s transfer case), Hussainara Khatoon V. State of Bihai. AIR 1979 SC 360 (miserable condition of undertnals in jaiisf Asaid cas, ARI 1982 SC 1483 (Discrimination m payment of wages to labourers, Bandhua Mukti Morelia V. Union of India, (! 984) 3 SCC 161; Neerja Chadhary. AIR 1984 SC1099; Sheela Barse V.State of Maharashtra, AIR 1983 SC 1360 (adequate protection and security to [uvenile offenders) Doon valley case, AIR 1985 SC 1295 (Protection of Environment), MC.Mehta V. Union of India (1987) 4 SCC 463 (Prevention of Water Pollution); Rudulshah V. State of Bihar, AIR 1983 SC 1986; Sabistien Hongery, AIR 1984 SC 1026. Bhin Singh V. State of J&K, AIR 1986 SC 494 etc (compensation for illegal detention)

207-a

Alien, C.K.

BIBLIOGRAPHYNATURAL LAW PHILOSOPHY

Law in the Making, 7th Ed. Oxford, 1964

Blackstone Commentaries, IntroductionCohen, M.R.Cohen & Cohen

Reason and Nature, Kegal Paul, French and Trubner & Co. Ltd. 1931 Readings in Jurisprudence and Legal Philosophy

Ritchite, D.G.Rommen, H.A.Roscoe Pound

Natural Rights, Allen & Unwin Ltd. 1894The Golden Law, trans, T.R.HanIey & B Herdern Buck Co,, 1947 Jursiprudence (1950)

Windolph, F.G.

Wright, B.F.

Wii.J.C.H.

Leviathan and Natural Law, Princeton University Press, 1951

American Interpretation of Natural Law, Harvard Uni Press,1931

Foundation of Justice, A Study in Natural Law, Sheed & Ward, 1955

Pound An Introduction to the Philosophy of Law (1946)

Pound Roscoe Interpretation of Legal History

Julius Stone The Province and Function of Law (1946)

Seal C.W. Foundations of Modem Jurisprudence, 1958

Gokhale, B.G. Indian Thought Through Ages (1961)

Korkunov General Theory of Law, Trans. By W.G.Hastings, Boston Book Co.(1909)

Paton, G.W. A Text Book of jurisprudence, 4* Ed.

Josephcharmont Modern French Legal Philosophy, trans by Mrs.Franklin W.Scott &Joseph

P. Chamberlain (1921)

Bentham Principles of Morals and Legislation

H L.A.Hart The Concept of Law

W Windelband A History of Philosophy,Trans by Tufts (1936)

H.FJolowicz Historical Introduction to Roman Law, 2nd Ed. 1954

St.Thomas Aquinas

Brierly J.L.

Huntington Cairns

Stammler, Rodoff

The Summa Theologica, Part II(Eng. Ed. London, 1927)

The Law ofNations

Legal Philosophy from Plato to Hegel

Tire Theory of Justice

Del Vecchio Formal Bases of Law

Lon L Fuller Anatomy of Law