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    Natural Law

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    Natural Law

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    © All Rights Reserved
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    of 3

    63

    Chapter III

    A- Definition of Law In various schools of Jurisprudence


    I. Natural Law
    Natural law means the law which is unwritten and consists of the principles of ought

    as revealed by the nature of man or reason or derived from God etc. It is known to be the

    higher law. The term morality, justice, ethic, right reason, good conduct, equality, liberty,

    freedom, social justice, democracy etc. are included under the natural law. Italian jurist Del

    Vecchio observes 1 that - "Natural law is criterion which permits us to evaluate positive law

    and to measure its intrinsic justice". Black stone remarked 2 - "This law of nature being
    coeval with mankind, dictated by God himself, is of course superior in obligation to any

    other. It is binding over all the globe in all countries, and at all times, no human laws are of

    any validity, it contrary to this, and such of them as are valid derive all their force and all their

    authority, mediately or immediately from this orginal.

    Ancient Age
    (Greece)

    (i) Heractlitus 3 (530-470 B.C.) Pointed out that natural law philosophy is based on

    the rhythem of events. This was termed as desting order and reason of the world. Nature is

    not just substance but a relation of order of things.

    (ii) Socrates 4 (470-399 B.C.) said that-like natural physical law, there is a natural

    moral law. Man possesses insight and this insight" reveals to him the goodness and badness

    of things and makes him know the absolute and eternal moral rules the absolute and eternal

    moral rules. This human insight is the basis to judge the law.

    (iii) Plato 5 (427-347 BC) observed that justice is harmony of mans inner life, and

    harmony is the quality of justice and it is achieved byreason and wisdom over desire.

    (iv) Aristotle6 (384-322 B.C.). To him the law is reason unaffected by desires and

    embodied the basic principles of justice and morality which were of universal validity and

    independent of time and place.

    1 Duoted by Dr. S.N. Dhyani : Fundamentalof Jurisprudence P. 1-52 (1992) Central Law Agency Allahabad.
    2 Duoted by Dr. S.N. Dhyani: Fundamental of Jurisprudence P. 1-52 (1992) Central Law Agency Allahabad.
    3 Quoted by Dr. S.N. Dhyani. Fundamental of Jurisprudence Edn 1992 P.54 : Central Law Agency, Allahabad.
    4 Tripathi _ V.N.M.-" Jurisprudence" P-59, (1993) Central Law Agency, Allahabad
    5 Quoted by Dr. S.N. Dhyani. Fundamental of Jurisprudence Edn 1992 P.54 : Centrel Law ~ AIIehabMI
    6 Quoted by Dr. S.N. Dhyani. Fundamental of Jurisprudence Edn 1992 P.54 : Central Law ~ AIWIMIed
    64
    Rome

    (I) Stoics ' - Observed the entire universe is governed by "reason". Man's reason is
    a part of the universal reason. Therefore, where he lives according to reason, be lives
    according to nature or lives naturally.
    (ii) Gene (350-260 B.C.) To him man as a part of cosmic nature was rational creature.

    Dark Age:
    (i) St. Augustine, 2 Ex pressed that the union with divine is the end of law. To attain

    this end the physical instincts of the body should be suppressed. If human laws are contrary

    to the law of God, they are to be disregarded.

    Medieval Period
    (i) Thomas Acquinas 3 (1225 -1274): He defined law as "an ordinance of reason for the

    common good made by him who has the case of the community and promulgated". He

    divided law into four categories - (1) Law of God. (2) Natural Law, which is revealed thought

    the reason of man, (3) Law of Scriptures or Divine Law and (4) Human Law. Natural law is

    a part of divine law. This part is applied by human beings to govern their affairs and relations.

    This human law or positive law therefore must remain within the limits of that of which it is a

    part It means that positive law must conform the law of the scriptures. Church is the

    authoritative interpreter of the law in scriptures.

    Renaissance
    (i) Gretius4 (1583-1645) : His view is based on Social Contract. He says that political

    Society rests on a social contract. It is the duty of sovergin to safeguard the citizen because

    the former was given power only for that purpose.

    The sovergin is bound by natural law. The law ofthe nature is discoverable by man's
    reason.

    1 Dr. Dhyan~ S.N. : Fundamental of Jurisprudence 1992 Central Law Agency Allahabad
    2 Quoted by Dr. S.N. Dhyani. Fundamental of Jurisprudence Edn 1992 P.54: Central Law Agency, AlIahabIId
    3 Tripathi: V.N.M. Jurisprudence 1993 P.82: C.LA. Allahabad
    4 Tripathi : V.N.M. Jurisprudence 1993 P.82: C.LA. Allahabad
    65
    (iI) Hobbes 1 (1588-1673) : To him law of the nature can be discovered by reason
    which says what a man should do and what he should not do. Man has natural desire for
    security and order. This can be achieved only by establishing superior authority which must
    command obedience.

    (iii) Lock 2 (1632-1704) : To him the purpose of government and law is to upheld and
    protect the natural right (freedom, equality, liberty etc.) of the subjects. So long as the
    government fulfills this purpose, the laws given by it are valid and binding but when it ceases
    to do that its laws have no validity and the Government may be overthrown.

    (iv) Rousseau 3 (1712-1778) He observed that by the social contract, man united for

    the preservation of their rights offreedom and equality. For this they surrendered their rights

    not to a single individual sovereign butto a community to which Rousseau given the name

    of general will. It the Government and laws do not conform to the general will, they are to be

    over thrown. Thus his natural law theory stands for the freedom and equality of men.

    Modern Period
    (i) Kant: (1724-1804) To 4 - Law of reason is a moral imperative, it is command
    directing the human will to do what is morally good for all at all times and places irrespective
    of ends consideration on self desire.
    (ii) Starn mler: All positive law is an attempt at just law and that is just law or justice is
    harmony of wills or purposes within the fram work of social life.
    (iii) Kohler: Defines law as the standard of conduct which is consequence of the inner

    impulse that urges towards a reasonable form of life, emanates from the whole, and is

    forced upon the individual.


    Natural law in classical or modem era because a theory of natural right of men and

    states which dominated the British, the French and American revolutions in seventeenth

    and eighteenth centuries. Natural law powerfully supported the theory of natural rights of

    men and states whose cult was freedom liberty and equality of both individual and states.

    As already stated that Grotius , Hobbes, lock, Rousseau Kant etc were the pioneers of
    these modern thoughts.

    1 Tripathi: V.N.M. JUrisprudence 1993 P.62: C.LA. Allahabad


    2 Tripathi: V.N.M. JUrisprudence 1993 P.62: C.LA. Allahabad
    3 Tripathi: V.N.M.Jurisprudence 1993 P.62: C.LA. Allahabad
    4 Dr. Dhyani, S.N. : Fundamental of Jurisprudence 1992CLA Allahabad

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