Natural School of Jurisprudence Part No.1 ( From Ancient Theories to Medieval Theories of Natural Law)


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 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.

 

      Saint Augustine is a saint of the Catholic Church and his authority in theological matters was universally accepted till the nineteenth century.

      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.










                                             

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