Natural School of Jurisprudence Part No.1 ( From Ancient Theories to Medieval Theories of Natural Law)
Hello readers I am Ashish Kumar doing practice as an Advocate in Kapurthala District Courts. If you want to in contact with me to get the new articles and notes on Legal subjects then share with me your e-mail id and if you have any type of doubt then you send me the mail on my email id ashishbhola786@gmail.com. I will try to give the answers of your questions as early as possible. To get the notifications of my videos subscribe my you tube channel and click on bell icon.
Schools of Law
Schools of law are nothing but different approaches of law.
Some Legal Thinkers have also used the term theory instead of School.
The most important division of different school of law is as follows:-
• Natural Law School.
• Analytical School [Imperative School].
• Historical School.
• Sociological School.
• Realist School.
These Schools reflects
the development of law at different stages.
Natural
Law School
Natural Law has been known by different names by different
Jurists.
For Stoics, it is the divine law (Jus Divindum) which
means that the Command of God is the law which is imposed upon men.
For Cicero, it is the law of reason, which means that law is
based on reason.
For Aristotle, it is unwritten law (Jus non scriptum) which
means law is not written on the pillar of stone, but in the heart of men.
For Hookes, it is the Eternal Law which means that law has been
in existence from the commencement of the world.
For some writers, it is the universal or common law (jus commune,
Jus gentium) as being of universal validity.
Moral Law : For the Modern Jurists, natural law consists of the
principles of morality.
The term natural law is derived from the Roman term jus
naturale which means a system of law based on fundamental ideas of right
and wrong.
The Jurists who support the philosophy of natural law are
known as naturalists.
It is unwritten body of universal moral principles by which
human conduct is governed.
Natural Law is often used in different form to the positive
law, which consists of the written rules and regulations enacted by the
Government.
In Legal Theory and in ancient Hindu, Greek and Roman law,
natural law has a primitive place.
Natural Law as considered by its supporter is that law, which is inherent in the nature of man
or society and is independent of convention, legislation or other institutional
devices.
Natural Law Theory is a legal theory that recognizes law and
morality as deeply connected to each other.
Morality relates what is wrong and what is right.
Natural Law Theory believes that human laws are defined by
morality and not by an authority figure, like king or a government.
Natural Law is mostly influenced by religion.
The Central idea of this theory is that there is a higher law
which is based on morality against which the validity of human law can be
measured.
According to this School of Jurisprudence if the law of
legislation is not moral, then it is not the law.
Division of Natural Law
Natural Law can be
broadly divided into 4 classes :-
• Ancient Theories.
• Medieval Theories.
• Renaissance Theories.
• Modern Theories.
Ancient
Theories of Natural Law
Greece
• The Greek thinkers developed the idea
of ‘natural law’ and laid down its essential features.
• On the one hand the instability of
political institutions and frequent changes in law and government in Greece
made some jurists to think that law was for the purpose of serving the
interests of the strong class of society only but was having no use to other
class of the society.
• But the same conditions made some
other jurists in Greece to think on a different line.
• They saw this as an opportunity to
develop new universal principles of law that would tackle and control
arbitrariness of the Government. This gave them the idea of ‘natural law’. A
very systematic and logical expression of the idea we find in the writings of Socrates.
Socrates
• Socrates said that like natural
physical law there is a natural moral law.
• According to him, man possesses ‘insight’
and this ‘insight’ of man reveals to him the goodness and badness of the
things and makes him know the absolute moral rules.
• This human insight is the basis to
the judge the law. That means by using the insight a man can conclude whether a
given law is good or not.
• But it is very important to note here
that Socrates did not say that if the positive law is not in conformity with
the moral law, then the positive law would be disobeyed.
• According to Socrates, rather it is
the appeal of the ‘insight’ of man is to obey the positive law. That was why
Socrates preferred to drink poison in obedience to law than to run away from
the prison.
• His theory was a plea for security
and stability which was one of the principal needs of the age.
• His pupil Plato supported the same
theory. But it is in writing of Aristotle where we find a proper
and logical elaboration of this theory of natural law.
Aristotle
• According to Aristotle, man is a part
of the nature in two ways:- First, he is part of the creatures of the God, and
Second he possesses active reason by which he can shape his will.
• By reason man can discover the
eternal principles of Justice.
• The man’s reason being the part of
the nature, so the law discovered by man’s reason is called ‘natural
Justice law.’
• So far as the relation of natural law
with positive law is concerned, then according to Aristotle positive law should
try to incorporate in itself the rules of natural law.
• It is very important to note here
that according to Aristotle even if the positive law is deficient or falls
short of the natural law standards or principles, even then the positive law
should be obeyed.
• According to Aristotle if there is
any deficiency in the positive law, then the positive law should be reformed
rather than to be broken.
• He argued that slave must accept
their lots for slavery was a ‘natural’ institution.
• Aristotle gave ‘natural law’ a very
solid ground to stand upon.
• The fullest elaboration of ‘natural
law theory’ in Greek Legal philosophy was made by Aristotle.
• His thesis had inspired great
philosophers even in modern times.
• Jurists like Kant, Hegel, Kelsen and
Stammler owe much from Aristotle.
• Aristotle is also considered to be
the founding father of natural Law School.
Ancient Theories of Natural Law
Rome
(Stoics)
• In Rome, Stoics built up on the
theory of Aristotle but transformed this theory into an ethical theory.
• According to Stoics, the entire
universe is governed by reason.
• Man’s reason is the part of the
universal reason, he lives according to the nature.
• Therefore it is the moral duty of man
to subject himself to the law of nature.
• The law of nature is of universal
application and is binding on all men.
• Positive law must confirm to the ‘natural
law’.
Influence of Natural Law Theory in Rome
• Natural Law effected legal
development in Rome.
• The theory of Stoics exercised great
influence upon the Jurists during Republican Period and some of them paid high
esteem to ‘natural law’.
• In Rome, the theory of ‘natural law’
did not remain confined only to theoretical discussions.
• Romans were very practical people.
• They used ‘natural law’ to transform
their narrow and rigid system into a cosmopolitan one.( Note: Cosmopolitan
means country consisting of people from many different countries)
• In this way natural law exercised a
very constructive influence on the Roman Law.
There were
three divisions of law in the ancient Rome which is as under:
1. Jus Civile: It was the civil/positive
laws which were enforceable by the Courts to regulate the relationship between
Roman Citizens themselves.
2. Jus Gentium: It was a part of the
positive law of Rome, though it was much wider in scope than the ‘Jus Civile’.
3. Jus Naturale: It was the law of nature.
It had no legal validity in the Courts, yet it formed the foundation on which
the other laws were based in Rome.
•
Jus
Civile was only for Roman Citizens, but on natural law principles Roman Magistrates applied those rules which
were common with foreign laws to foreign citizens also. The body of law which
grew up in this way was called Jus Gentium and it became a part of the Roman
Law.
•
Later
on ‘Jus Civile’ and ‘Jus Gentium’ became one when Roman Citizenship was
extended to all except few classes of people.
• But still Roman did not incorporate
natural law into their positive laws because slaves were still deprived of the
benefits of the new law.
• Even the Roman lawyers did not bother
themselves with the problem of conflict between ‘positive law’ and ‘natural
law’.
• Though there were some jurists who
considered ‘natural law’ superior to ‘positive law’ and suggested that in case
of conflict between the two then the positive law may be disregarded.
• Majority of the Jurists however did
not enter into this question.
Ancient
Theories of Natural Law
India
(Hindu System)
• Hindu Legal System is the most
ancient legal system of the world.
• Indians developed a very logical and
comprehensive body of law at very early times.
• A sense of ‘Justice’ pervades in the
whole body of ancient Indian Laws.
• But frequent changes in the political
system and governments and number of times foreign invasions one after the
other prevented the systematic and natural growth of Indian Legal System.
• Under the foreign rule no proper
attention could be paid to the study of this legal system.
• Many theories and principles of
Indian Legal System are still unknown and uninvestigated.
• Whether there was any concept of
‘natural law or not’ and if there was any concept of natural law then what was
its authority and the relation of natural law with ‘positive law’ are some
questions which can not be answered with great certainty.
• However some principles can be
pointed out in this respect to show that there was the concept of natural law
in India.
• According to Hindu Law, law owes its
existence from God.
• Law is given in ‘Shruti’ and
‘Samritis’.
• The King is simply to execute that
law which was given in religious books and he himself is bound by the law and
if he goes against the law then he should be disobeyed.
• In the ancient Hindu Samriti there
was the concept of reason and justice and it was the argument that the
decision should be based on reason and should not be given by basing on
Shastras alone. There is failure of Dharma by a Judgment which lacks reason.
• It was also the common arguments in
ancient legal system that if there is divergence between Dharamshastras, then a
principle which is based on reason has been declared to be a right one.
• Principles of Justice were considered
as guides in matter of interpretation.
• So in a different form and in a
limited way, principle of ‘natural law’ had their place in ancient Hindu Legal
System.
Ancient Theories on
Natural Law
Dark Ages
• During Dark Ages the early Christian
Fathers given the view that nature misleads and corrupts man, therefore it
should be overcome and destroyed.
• According to them, the institutions
of man, such as government or property etc. are the products of sin.
• If human laws are contrary to the
law, then the human laws are to be disregarded.
• This approach of Christian Fathers
was completely different from the approach we had discussed earlier in natural
law theories.
• Important among the Christian Father
is St. Augustine.
• According to him, the union with
divine is the end of law.
•
• This dark age period can also be said
to the Christian Period.
• Natural Law, at this stage, was
considered as the Will of God revealed to men by Holy Scriptures.
• According to Christian Father human
laws which are contrary to the Law of God were to be discarded and
ignored.
• The Church as the exponent of divine
law could override the State.
• In the Early Christian Fathers
expressed views on the ‘law of nature’ from a theological base.[Theological
means a system of religious beliefs and theory.]
• Later on, in the medieval times,
Christian Fathers modified this approach and gave a respectable place to the natural
law.
MEDIEVAL THEORIES
Christian Father : Thomas Acquinas
Church as the law Giver
• Catholic philosophers and
theologians of Middle Ages had given a new theory of ‘Natural Law’.
• Though the base of this theory was
also theological but in this period, the Christian Fathers departed from the
Orthodox view of early Christian Fathers. Their view are more logical and
systematic in relation to the concept of law.
• The Views of Thomas Acquinas may be taken
as representative of the new theory.
Natural Law according to Thomas Acquinas is based on concept
that what is naturally right or wrong.
• Religion should not be irrational.
• There is no conflict between reason
and true religion.
• Thomas Acquinas defined law as “an
ordinance of reason for the common good made by him who has the care of the
community and promulgated.”
• Natural Law is the eternal law (from
God) that can be known by humans.
• The ruler is responsible for the care
of the community.
• He divided the law into 4 categories:
• Law of God.
• Natural Law.
• Law of Scriptures or Divine Law; and
• Human Laws/Positive Laws.
According to Thomas Acquinas, natural law is revealed through
the reason of man and is a part of divine law.
Positive Law is valid only to the extent to which it is
consistent with the natural law.
According to Thomas Acquinas, Church is the authoritative
interpreter of the law given in Scriptures. Therefore, Church has the authority
to give verdict upon the goodness or badness of the positive law.
It is very important to note here that Thomas Acquinas had
justified possession of property by an individual which was considered sinful
by the early Christian Fathers.
Though Thomas Acquinas had said that human law is valid only
in so far as it is consistent with the natural law but he also added that man
should obey the human law even if it is unjust.
Merits of Thomas Acquinas Theory
Thomas Acquinas blended the political philosophy of Aristotle
with that of the Christian faith and built a very logical and elastic theory of
‘natural law’.
He pleaded for establishing the authority of the church over
the law.
He said that monarch(King) has only limited powers. He is to
proceed under the guidance of Divine Law.
Thomas Acquinas identified ‘natural law’ with reason,
although this reason was the reason of the Catholic Church. Later on, the theological
garb was shaken off and ‘reason’ became the basis of the new secularized
‘natural law’ theories.
Moreover Catholic Jurists of modern times have built upon the
theory of Thomas Acquinas but they have modified it considerably which was
necessary under the changed conditions.
Criticisms to the theory of Thomas Acquinas
• The theory given by Thomas Acquinas
was opposed by the German Emperors.
• They contended that the State was
sovereign in all legal matters and it has exclusive authority over the law.
Comments
Post a Comment