Concept of Natural Law

Introduction
 Law which is in accordance in nature
 Body of jurisprudential doctrine based on the acceptance of absolute value
judgements said to be in accordance with ‘nature’ and ‘reason’
 Reflecting the essence of the Universe
 Possesing an immutable (unchanging over time) and eternally valid character

Morrison’s
 Central point of natural law is that of an essential moral requirements in the
concept of law and legality
 Not merely that good law is moral , but morality is conceptually part of law
 The above decsription is a loose one but it gives us the connection between law
and morality

Cicero (De Re Publica)

 True law is right reason in agreement with nature
 Universal application
 Unchanging
 Everlasting
 A sin to alter this law, nor it is allowable to attempt to repeal any part of it, and it
is impossible to abolish it entirely
 God is the author of this law and its enforcing judge

-Natural law stresses on universality & immutability, its standing as higher law, and
its discoverability by reason-

What is Nature?
J.S.Mill
 That what exists in nature i.e. all that man observes in this universe can be called
as nature
 Sense of how man ought to behave

The Growth and Concept of Natural Law

(A) Greek Period

1. The Sophists
 Laid differences between “nature” and “the law”;
Nature was primary,basic and permanent while law was secondary, not original and
no permanent
Nature reflected that which was wise while law showed expedience
Nature created equality in the state of nature and law created inequality among men
 They considered law as purely utilitarian (practical) and the result of the
suitability of the conditions
 The reason for declaration of law was the self interest of the law maker
 The reason for law to be obeyed was the self interest of the governed
2. Socrates
 Similar to physical law, there is natural law
 Pleaded that principles of morality should not change
 In order for law to become the em bodiement of correct reasoning, one had to use
reason and apply “insight” into the nature of the conduct
 In other words, man possesses insights and this insight reveals to him the
goodness and badness of things and makes him know the absolute and eternal law
 Regarded law as closely associated with justice and ethics
 Natural law as acquiring compliance to positive law and authority

3. Aristotle
 Man is part of nature in two ways
He is part of the creatures of God
He possesses active reason
 Natural law has the same force everywhere and does not exist by people’s
contemplation
 Universal law is the law of nature
 Was of the opinion that postive law ought to try to incorporate the rules of natural
law
 Positive law should be obeyed even if contrary to natural law
 The ultimate aim of man should be the attainment of “state of goodness”
 A just law is that which allows individuals to develop their potentials within the
framework of the society
 This type of law is perfect, unchangeable and applicable to all mankind

(B) Roman Period

1. The Stoics
 The entire universe was governed by “reason” and man’s reason was part of the
universal reason
 When man lived accordingly to reason, he lived naturally
 Positive law must conform to the natural law
 Natural law was the law of reason

2. Cicero
 Claimed in ‘De Re Publica’ that true law is right reason in agreement with
nature.Three features of natural law;
Immutability and Universality
Its standing as higher law
Its discovery with the help of reason
 Jus Naturale- law which nature had taught all living things, a perfect type to
which the law must try to conform
 Jus Gentium- law which had universal application
 Natural law are discoverable by reason and above all human laws cannot override
these principles
 Natural law could strike down positive laws hich contravene natural law
(C) Medieval Period

1. St Thomas Aquinas
 In ‘Summa Theologica’, it was argued that man has certain inclinations such as
self-preservations, inclinations to procreate and inclination that is peculiar to
human is that to know the truth about God
 Classified law into four categories;
Eternal Law- The whole body of God’s law, God’s plan for the universe, Without this
law man will lack direction
Divine Law- God’s revelation to man through Christ and the scriptures
Natural Law- Participation of the eternal law in rational creatures, Law discoverable
by man’s reason
Human Law- Supported by reason, Enacted for common good, necessary because lex
naturalis cannot solve many day-to-day problems
 Law which fails to conform to natural law or divine law is not law at al
 Lex iniusta non est lex- Unjust law is not law

(D) Christian fathers

1. Augustine
 The perfect type of law is the law of nature and man lived in golden age, in state
of innocence and justice
 Since the concern of the State was to maintain peace among mankind, it became
necessary to defend the Church and uphold the validity of the laws made by man
 Provisions of human law were to be ignored if it came in conflict with
eternal,natural law

(E) 16th to 18th Centuries

1. Bodin
 Upheld the importance of state sovereignty
 Limited by God or divine law and naturl law
 Sovereign passeed laws for the public and could not change the “law” if reduced
the rights of his subjects

2. Grotius
 Considered natural law to be immutable and intelligible
 Matural law is based he nature of man, instinct of gregariousness which compels
a man to live in society
 Human nature is the grandfather, natural law is the parent and positive law the
child

3. Thomas Hebbes
 He believed that in a state of nature, a man’s life was full of fear and selfishness
 He would surrender his rights to a political sovereign and claims equal treatment
 Believed that there was no society distinct from state
 Every authority was vested in the sovereign
 To him, natural law was “the dictate of right reason conversant about those things
which are eitehr to be done or omitted for constant preservation of life
4. John Locke
 Disagreed with Hobbes and said that state of nature was of a golden age
 This golden age had one problem and that was of the property being not secure
 To remove this defect, people entered into “social contract”, and made pacts with
authority chosen by them
 He added that revolution is not an ‘act of revenge’ but ‘act of restoration of a
political order’
 He also said that the earth is owned by God and there can be no right of property.
If man mixes his labour with material objects, he can acquire that right
 It was God that given men a title to the ‘fruits of his labour’

Decline of Natural Law

 David Hume alleged it to be vague
 Auguste Conte said it was false, non scientific and based on super natural beliefs
 The consideration of historical school that law was a product of people’s
conscience
 Dominance of analytical positivism

Revival of Natural Law

 Exaggerated importance to historical approach giving undue significance to social
characters of legal system had given rise to fascism in Italy and Nazism in
Germany
 WW1 shattered the western society and there was a search for value-concious
legal system

Theories of Ancient Greeks and Romans

(a) Greeks

1. Socrates
 Similar to physical law, there is natural law
 Pleaded that principles of morality should not change
 In order for law to become the em bodiement of correct reasoning, one had to use
reason and apply “insight” into the nature of the conduct
 In other words, man possesses insights and this insight reveals to him the
goodness and badness of things and makes him know the absolute and eternal law
 Regarded law as closely associated with justice and ethics
 Natural law as acquiring compliance to positive law and authority

2. Aristotle
 Man is part of nature in two ways
He is part of the creatures of God
He possesses active reason
 Natural law has the same force everywhere and does not exist by people’s
contemplation
 Universal law is the law of nature
 Was of the opinion that postive law ought to try to incorporate the rules of natural
law
 Positive law should be obeyed even if contrary to natural law
 The ultimate aim of man should be the attainment of “state of goodness”
 A just law is that which allows individuals to develop their potentials within the
framework of the society
 This type of law is perfect, unchangeable and applicable to all mankind
 Observed that natural processes tend towards ‘pre determined ends’
 In The Politics he was of the view that good law is where the subjects achieve
their maximum potential towards their appropiate development

(b) Romans

1. Cicero
 The highest form of reason , which may be discovered in nature, becomes, when
firmly rooted in the human mind and further developed, law
 True law came into existence simultaneously with the divine mind
 To curtail the law is unholy, to attempt to amend it is illicit, to repeal it is
impossible

Theories of Grotious, St Augustin and St Thomas Aquinas

1. Grotius
 From the nature of man which desires a peaceful society, principles of natural law
have been derived by him
 Principle of natural law can be deduced into ways
A priori- By examining anything in relaton to the rational and social nature of man
A posteriori- By examining the acceptance of these principles among the nations
 What is right or wrong depends on the nature of things and not a decree of God

2. St Augustin
 The perfect type of law is the law of nature and man lived in golden age, in state
of innocence and justice
 Since the concern of the State was to maintain peace among mankind, it became
necessary to defend the Church and uphold the validity of the laws made by man
 Provisions of human law were to be ignored if it came in conflict with
eternal,natural law
3. St Thomas Aquinas
Lex Aeterna (Divine Reason)
Lex Divina (Law of God)
Lex Naturalis (Natural Law)
Lex Humana (Positive Law)
 Known only to God
 Man is ordained to a particular end
and cannot attain this through hi own
powers alone but need Divine
guidance and protection
 Comparing to Spinoza’s sub specie
aeternitatis and sub specie durationis
Aquinas God is the Christian God
whereas Spinoza’s is not
Aquinas said that divine help is needed to
see the divine reason and only those
blessed are capable of access to divine
reason while Spinoza stated that by he
use of human reason men can develop the
ability to look into things from eternity
 The law of God
 Appear quite unlikely that Aquinas
would consider Hebraic and Quranic
Scriptures as possible sources of the
law of God
 Participation of the eternal law in
rational creatures, Law discoverable
by man’s reason
 Regards all man as rational
 Compared to John Rawls whom
assumes all man act in their self
interest
 Supported by reason, Enacted for
common good, necessary because lex
naturalis cannot solve many day-to-
day problems
Comparison between Theories of Aquinas and Islamic theories
Aquinas Islamic
Classified law into four categories Classified law into two types; mandatory
(taklifi) and declarative (wadi)
Perceived human law is secondary to Perfect and no lacuna in its operation
natural law Considered as comprehensive, flexible
and permanent in nature
Unjust laws are perversions of law and do Different in Islamic law
not bind man’s moral conscience
Uses moral criteria as a means of Does not use moral criteria bcs from a
evaluating positive law strict point of view ‘legislation’ has no
authority independent of the Shariah in
the first place
Natural law can be added to though as far There is no room for addition or
as first priciples are concerned not subtraction as far as the Shariah is
substracted form concerned
Only refer to the primary and secondary
sources of Islam