Natural School of Jurisprudence Part No.2 ( From Renaissance Theories to Modern Theories of Natural Law)

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3. Renaissance Theories

Rationalism and Other New Idea and developments.

•      This period marks a general awakening of new ideas in all the field of knowledge.

•      In this period new and developed branches of knowledge and discoveries of science laid down the foundation of established values.

•      The development in the field of commerce created new classes in the society which wanted more protection from the State.

•      Colonization caused a rivalry among the States, which gave birth to the concept of nationalism, which argued that the State must have full sovereign powers.

•      These all above stated factors when combined together created forces to overthrown the dominance of the Church.

•      During this period various new theories which supported the sovereignty of the State were propounded by various jurists.

•      “Reason” was the foundation stone of all these theories.

•      But it is very important to note here that the reason which was the foundation stone of all these theories was secularized reason and not the theological reason as was alleged during the dark ages and medieval theories by Catholic Christian Fathers.

•      These theories proceed from the supposition that a ‘social contract’ is the basis of society.

Social Contract

•      The concept of Social Contract can be understand by the following points :-

•      In the beginning man lived in the natural state.

•      They has neither any government nor any law.

•      This beginning state of human beings has been described in two ways by jurists.

•      In the first way, the beginning state of human beings was in the nature of hardship and oppression, hence the Jurist came in the support of the absolute power of the State to protect the man.

•      Whereas in the Second way, the Other Jurists considered the beginning life of man as of bless and Joy, and they support the freedom of the individual.

•      With the passage of time, the men entered into agreement with each other for the protection of their lives and property. This agreement between men is called “Pactum Union is”. By this agreement society came into existence. Under this agreement men undertook to respect each other and also undertook to live in peace with each other.

•      Then men entered into a second agreement by which who had united together earlier, undertook to obey an authority and surrendered the whole or a part of their freedom and rights and the authority on the other hand given the guarantee to everyone of them the protection of their life, property and to a certain extent their liberty. Thus in this way, “Government/Sovereign/Ruler” came into existence. This second agreement is known as “ Pactum Subjection is”

Implications of Social Contract Theory

 There are two implications of Social Contract Theory

•       That the people are the sources of political power.

•       That the concept of society of these philosophers is individualistic.

Theory of Social Contract by Grotius

Hugo Grotius [ 1588-1679]

 Hugo Grotius was a 17th  Century a Dutch legal Scholar and philosopher.

He is considered to be the father of modern international law.

He advocated for keeping the peace and was against the war.  

He built his legal theory on ‘Social Contract’.

According to Grotius political society is based on social contract.

According to him, it is the duty of the Sovereign to safeguard the citizens because the sovereign was given power to safeguard the citizens. 

  The Sovereign is bound by the principles of natural law.

 According to Grotius the law of nature is discoverable by the reason of man which is self-supporting reason of the man.

Now it is very important to note here that whether according to Grotius Should the Ruler be disobeyed if he does not act in conformity with the natural law.

Grotius says that however bad the ruler may be but it is the duty of the subject to obey him. Subject has no right to repudiate this social agreement or to take away the power.

This view of Grotius was criticised on the ground that this view of Grotius creates an inconsistency in his theory. On the one hand, he says that the ruler is bound by the ‘natural law’ and on the other hand, he gave the view that, in no case, the ruler be disobeyed by his subject.

But it is very important to note here that although there was some inconsistency in the theory of Grotius but this inconsistency was propounded for the stability of the political order.

This inconsistency was essential for establishing international peace and order.

Contribution of Grotius Theory

On the basis of this theory, Grotius laid down the foundations of International Law.

From the ‘Social Contract’ Theory Grotius deduced number of principles in this regard:

1. That the Governments are equal;

2. That the Governments in their foreign relations are perfectly free;

3. That the promises made between Governments are of a binding nature because to fulfill a promise is a principle of ‘natural law’.

•      Grotius considered divine law as the grandmother, natural law the parents and positive law as the child.

•      Grotius held that natural law was not merely based on ‘reason’ but on ‘right reason’ i.e. self supporting reason of man.

Theory of Social Contract by Hobbes

Thomas Hobbes[ 1558-1679]

•      Thomas Hobbes theory of Jurisprudence also proceed from the ‘ Social Contract’.

•      According to Hobbes, man lives in a state of complete confusion and disorder.

•      According to him, man’s life in a state of nature was one of fear and selfishness. It was solitary, poor and short.

•     

•      The idea of self preservation and avoiding misery and pain are inherent in the nature of man.

•      He desire the society also to protect his life.

•      These natural tendency of security of man induced him to enter into a contract and surrender his freedom and power to some authority.

•      Therefore, Hobbes is a supporter of absolutism.

•      According to Hobbes Subjects has no rights against the sovereign and the sovereign in no case can be disobeyed by the subjects.

•      According to Hobbes the Church too has no power over the sovereign.

•      Though the Church can make suggestions to the Sovereign that the sovereign should be bound by ‘natural law’ but that suggestions is not more than a moral obligations and is not binding on the sovereign.

Contributions of Hobbes

•      During the Civil War in Britain the theory of Hobbes which supports absolutism had supported the Monarch( Sovereign).

•      The Theory of Hobbes also stood for stable and secure government.

•      Austin and many other later Jurists have also taken inspiration from the theory of Hobbes.

Interpretation of Social Contract by Locke

Locke [ 1632-1704]

Need of new interpretation

•      Before Locke all other Jurists strongly advocated for the sovereignty of State.

•      By the result the State emerged very powerful but the State undermines the importance of the individual.

•      The number of subsequent developments which had been taken place all over the world made the individual with the desire to have some freedom.

•      A new interpretation was necessary in respect of ‘natural law theory’ which will support the individual against the power of the sovereign.

•      Locke done this new interpretation and he interpreted the ‘natural law’ and the ‘social contract’ in a new way.

•      It was argued by Locke that the State of nature was a golden age only the property of the individual was insecure.

•      For the purpose to protect this property men entered into the ‘ Social Contract’.

•      It is very important to note here that according to Locke, man under this Social Contract did not surrender all his rights before the Sovereign but only surrender part of his rights, just only to maintain the order in the society and to enforce the law of nature.

•      Man retained with himself his natural rights i.e. right to life, liberty and property.

•      The purpose of Government and law is to uphold and protect the natural rights of the individual.

•      So long as the Government fulfills this purpose, the law given by it are valid and binding on the subjects but when the Government fails to fulfill this purpose the laws promulgated by the Governments will have no validity and the Government may be overthrown.

Contribution of Locke’s Theory

•      Locke’s theory of natural law is contrary to the theory given by Hobbes. Locke’s theory supports the liberty of individual whereas Hobbes’s theory supports the authority of sovereign.

•      Locke argued for a sovereign who will have constitutionally limited powers.

•      In this way the writing of Locke got almost scriptural respect in the 18^th Century and his writing also exercised great influence upon the future Jurists in their writing.

•      The theory of Locke led to parliamentary democracy.

•      His ‘inalienable rights’ of the individual came to be embodied in many constitutions and were guaranteed to the individual.

•      The 19^th Century laissez faire theory in economics derived inspiration from his views.[ Laissez- faire is an economic system in which transactions between private parties are free from any form of government intervention.]

Concept of General Will by Rousseau

ROUSSEAU [ 1712-1778]

•      Rousseau was a French philosopher.

•      He argues in favour of direct democracy.

•      He is the great French writer of 18^th Century.

•      He elaborated his theory in his famous work “ The Social Contract” which was published in 1762.

•      ‘Social Contract’ and ‘Natural Law’ received a new interpretation from Rousseau.

•      According to him, ‘Social Contract’ is not a historical fact but a hypothetical [Imagined] construction of reason.

•      According to Rousseau, before this ‘Social Contract’ man was happy and free and there was equality among men.

•      By the ‘Social Contract’ men united for the preservation of their rights of freedom and equality, for this purpose men surrendered their rights not to a single individual-sovereign but to the community to which Rousseau gives the name of ‘ General Will’

•      According to him, it is general duty of every individual to obey the ‘General Will’ because in doing so he directly obey his own will.

•      Therefore while the individual parts with his natural rights, but he gets in return Civil liberties.

•      The existence of the State is for the protection of freedom and equalities.

•      The State and the laws made by the State both are subject to the ‘General Will’ which creates the State.

•      If the State and laws of the State do not conform to the General Will then both are to be overthrown.

•      His theory of natural law stands for the freedom and equality of men.

Importance to The Theory of Rousseau

•      Though Rousseau’s theory of natural law was full of inconsistencies, but in reality there was great influence of his theory to French and American Revolutions and it gave birth to the concept of Nationalism.

•      His theory prepared ground for new theories of Government and law to come. 

4.                                               Modern Theories of Natural Law

•      Modern Theories of Natural Law can be classified into two centuries i.e. in 19^th and 20th Century.

•      The 19th Century had been regarded as a century in which the concept of natural Law had been rejected by the Jurists.

•      Whereas in the 20th century the concept of natural law had been once again revived by the jurists.

Rejection of Natural Law

•      During the 18^th century, Natural Law theories brought great social, economic and political changes which had been taken place in Europe.

•      “Reason or Rationalism” was the spirit of the 18^th century thought.

•      But in the 19^th century the popularity of natural law theories suffered a great decline.

•      The problems created by the new changes and developments demanded practical solutions to the problems.

•      Jurists of 19^th Century preached that there are no absolute and unchangeable principles of natural law as it was argued by the previous jurists.

•      On the other hand, the historical researches disclosed that there was not any concept of ‘Social Contract’ in the history and it was only a myth.

•      During 19^th century the historical and analytical approaches to the study of law were more realistic and attracted Jurists.

•      After getting the government, capitalists thought that now there is no need of Natural Law. According to them, they could make their own laws.

•      After the Bourgeoisie Revolution in America, all philosophies in natural law was rejected.

•      John C. Calhoom criticized Thomas Hobbes and his work. He argued that for  the predominant of individuals over the others to continue without conflict there is need for a controlling power i.e. the State. He is interested on the control.

•      According to them, there must be some power of control by the State.

•      Focus is now on the State and not on natural law.

•      After basically rejecting natural law motion: the ruling Bourgeoisie adopted positivism as their legal philosophy.

•      The Bourgeoisie adopted positivism and they look at law as it is. After rejecting the concept of Natural Law, Jurisprudence was limited to the technical analysis of positive law which was laid down by the State.

•      According to positivism philosophers there was no need to find the value of law beyond the law itself.

•      In this way in this changed climate of thought it became difficult for the ‘natural law’ theories to survive and the 19^th century was in general, prove to be hostile to the ‘natural law theories’.

Revival of Natural Law

20^th Century is regarded as revival of ‘natural law theories’.

Towards the end of the 19^th century a revival of the ‘natural law’ theories took place.

The revival of natural law had been taken place due to rise of capitalism that created class of rich and poor.

Conflict of interest between nations eventually led to wars, sufferings and property destructions.

These situations made capitalists to re-think on how to solve these problems of sufferings and losses.

They were interested to find a philosophy of politics to show the people that despite what have happened, capitalism as a system was still a face of human.

Therefore Natural law had to be brought back.

It is very important to note here that natural law was not resumed as it was not but it was modified to suit the new conditions.

According to Salmond this revival of natural law was due to the following reasons:-

1.     The desire to re-establish the closer relationship between law and morality.

2.     There was dissatisfaction with the command theory of law (as given by Austin) which has destroyed the concept of morality from the positive law.

3.     There arises the need for a juristic basis for a progressive interpretation of positive law in those cases in which law could not be strictly applied. This has particularly important in America.

4.     The development of sociological theories and sciences; and

5.     The development of the idea of relatively in modern jurisprudence which means that laws are universal and vary in their content with time and place.

The modern theory of natural law rejects the older conception of natural law, according to which natural law was immutable (not able to change), eternal and universal.

Now in 20^th century, natural law is not considered as absolute but it is considered as relative which means that it has variable contents.

Kohler, Geny, Stammler are the main exponents of the revived natural law theory.

The revival of natural law principles has also greatly influenced the judicial system of our country.

Now our Supreme Court and other courts frequently observe the rules of natural Justice- which is an outcome of natural law principles.

In a number of cases, the Supreme Court of India has observed the importance of the principles of natural justice and also applied these principles.

In England positivism still remains dominant and natural law or justice is rarely involved by the Judges or practicing lawyers.

In the United States the existence of fundamental rights in the constitution has given more scope for the natural lawyers and the Universal Declaration of Human Rights is essentially a natural law document.

Among the philosophers who have given their theories in the present century Stammler and J. Kohler hold important place

Rudalf Stammler [ 1856-1938]

•      He was a German Professor of Law and is regarded as father of contemporary natural law.

•      He accepted the notion that law is a regulation of external conduct while ethics as having to do with the intention of the actor.

•      According to him, law should be sovereign without interference and inviolable [never to be broken].

•      A theory of law must consider every specific legal rule as a means to an end and for this purpose there is need to look or find a universal method of Just law.

•      Once law is made or enacted then the law is compulsory and binding to all whether they intends to follow it or not.

•      According to Stammler the aim of justice is to create harmony in the society and that harmony can be achieved by adjusting the desire of the individual with the aim of the community.

•      In realization of Justice the specific content of a rule of law will vary from place to place and from age to age.

•      The aim of Just law is to achieve the highest possible harmony in the society.

•      There must be free will of men to obey the law in order to build a harmonious society.

•      Obedience to law should not depend on the arbitrariness of another. That means don’t harass the people to obey the law.

•      If you want to make your law to run then ensure that the dignity of any person should be maintained.

•      When you enact the law then don’t segregate people. Don’t degrade anybody in the society.

•      Stammler says that “ all positive law is an attempt at Just Law.”

•      Just Law means justice law in which there is ‘harmony’ of Wills or purposes within the framework of the social life.

•      The harmony of wills or purposes varies according to time and place.

•      For the knowledge of Wills and purpose one must come in actual contact of the living social world.

•      By this method one can find out what is relatively just, and it is this ‘just’ which the law should endeavor to attain.

•      Law is valid even if it does not conform to this ‘Just’ but attempt should be made to bring the law near to its aim.

•      This concept has been called by Stammler as natural law with a variable content.

J. Kohler [ 1849-1919]

•      J.Kohler gave a new interpretation to the legal history.

•      According to him legal interpretation should not be materialistic.

•      He said that in course of evolution, society advances morally and culturally as well.

•      He argued that taking the requirements of culture into consideration law can serve its purpose better.

•      According to Kohler there is no eternal law.

•      The law that is suitable for one period is not so for another period, we can only evaluate every culture with its corresponding system of law.

•      He built his theory on the idea that law is a process of evolution, and that law must change with time and vary with the cultures of countries.