Natural Law Theory

Natural Law Theory: Natural law (Latin: ius naturale, lex naturalis) is a philosophy asserting that certain rights are inherent by virtue of human nature, endowed by nature—traditionally by God or a transcendent source—and that these can be understood universally through human reason. As determined by nature, the law of nature is implied to be objective and universal; it exists independently of human understanding, and of the positive law of a given state i.e. law given by the government, political order, legislature or society at large. Historically, natural law refers to the use of reason to analyze human nature to deduce binding rules of moral behavior from nature's or God's creation of reality and mankind. The concept of natural law was documented in ancient Greek philosophy, including Aristotle, and was referred to in Roman philosophy by Cicero. References to natural law are also found in the Old and New Testaments of the Bible, later expounded upon in the Middle Ages by Christian philosophers such as Albert the Great and Thomas Aquinas. The School of Salamanca made notable contributions during the Renaissance. Modern natural law theories were greatly developed in the Age of Enlightenment, combining inspiration from Roman law with philosophies like social contract theory. Key proponents were Alberico Gentili, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, Matthew Hale, John Locke, Francis Hutcheson, Jean Jacques Burlamaqui, Emmerich de Vattel, Cesare Beccaria and Francesco Mario Pagano. It was used to challenge the divine right of kings, and became an alternative justification for the establishment of a social contract, positive law, and government—and thus legal rights—in the form of classical republicanism. Conversely, the concept of natural rights is used by others to challenge the legitimacy of all such establishments. Contemporarily, the concept of natural law is closely related to the concept of natural rights. Indeed, many philosophers, jurists and scholars use natural law synonymously with natural rights (Latin: ius naturale), or natural justice. PLATO: Although Plato did not have an explicit theory of natural law, his concept of nature, according to John Wild, contains some of the elements found in many natural law theories. According to Plato, we live in an orderly universe. The basis of this orderly universe or nature are the forms, most fundamentally the Form of the Good, which Plato describes as "the brightest region of Being". The Form of the Good is the cause of all things, and when it is seen it leads a person to act wisely. In the Symposium, the Good is closely identified with the Beautiful. In the Symposium, Plato describes how the experience of the Beautiful by Socrates enabled him to resist the temptations of wealth and sex. In the Republic, the ideal community is "a city which would be established in accordance with nature". ARISTOTLE: Aristotle is often said to be the father of natural law. Aristotle's association with natural law may be due to the interpretation given to his works by Thomas Aquinas. But whether Aquinas correctly read Aristotle is in dispute. According to some, Aquinas conflates natural law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics (Book IV of the Eudemian Ethics). According to this interpretation, Aquinas's influence was such as to affect a number of early translations of these passages in an unfortunate manner, though more recent translations render those more literally. Aristotle notes that natural justice is a species of political justice, specifically the scheme of distributive and corrective justice that would be established under the best political community; were this to take the form of law, this could be called a natural law, though Aristotle does not discuss this and suggests in the Politics that the best regime may not rule by law at all. The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric, where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature. Contemporary jurisprudence: In jurisprudence the term ‘Natural Law’ means those rules and principles which are supposed to have originated from some supreme source other than any political or worldly authority. It accepts things or conclusions in relation to a subject as they are without any need or enquiry or observation without trying to find out the causes and reason in relation to the subject matter. It symbolizes Physical Law of Nature based on moral ideals which has universal applicability at all places and terms. Natural Law is eternal and unalterable, as having existed from the commencement of the world, uncreated and immutable. Natural Law is not made by man; it is only discovered by him. Natural Law is not enforced by any external agency. Natural Law is not promulgated by legislation; it is an outcome of preaching of philosophers, prophets, saints etc. and thus in a sense, it is a higher form of law. Natural Law has no formal written Code. Also there is neither precise penalty for its violation nor any specific reward for abiding by its rules. Natural Law has an eternal lasting value which is immutable. Natural Law is also termed as Divine Law, Law of Nature, Law of God, etc. Divine Law means the command of God imposed upon men. Natural Law is also the Law of Reason, as being established by that reason by which the world is governed, and also as being addressed to and perceived by the rational of nature of man. It is also the Universal or Common Law as being of universal validity, the same in all places and binding on all peoples, and not one thing at Athens. Lastly in modern times we find it termed as “moral law” as being the expression of the principles of morality. The Natural Law denies the possibility of any rigid separation of the ‘is’ and ‘ought’ aspect of law and believes that such a separation is unnecessarily causing confusing in the field of law. The supporters of Natural Law argue that the notions of ‘justice’, ‘right’ or ‘reason’ have been drawn from the nature of man and the Law of Nature and, therefore, this aspect cannot be completely eliminated from the purview of law. It has generally been considered as an ideal source of law with invariant contents. Positive Law Theory: Positive laws (Latin: ius positum) are human-made laws that oblige or specify an action. It also describes the establishment of specific rights for an individual or group. Etymologically, the name derives from the verb to posit. The concept of positive law is distinct from "natural law", which comprises inherent rights, conferred not by act of legislation but by "God, nature or reason." Positive law is also described as the law that applies at a certain time (present or past) and at a certain place, consisting of statutory law, and case law as far as it is binding. More specifically, positive law may be characterized as "law actually and specifically enacted or adopted by proper authority for the government of an organized jural society. This term is also sometimes used to refer to the legal philosophy legal positivism, as distinct from the schools of natural law and legal realism. Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (1790-1859) formulated it thus: “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.). Realism denounces traditional legal rules and concepts and concentrates more on what the courts actually do in reaching the final decision in the case. In strict sense, realists define law as generalized prediction of what the courts will do. Realists believe that certainty of law is a myth and its predictability depends upon the set of facts which are before the court for decision. It presupposes that law is intimately connected with the society and since the society changes faster than law so there can never be certainty about law. They do not support formal, logical and conceptual approach to law. The realist school evaluates any part of law in terms of its effect. Jerome Frank has stated, “Law is what the court has decided in respect of any particular set of facts prior to such a decision, the opinion of lawyers is only a guess as to what the court will decide and this cannot be treated as law unless the Court so decides by its judicial pronouncement.” The judges’ decisions are the outcome of his entire life history.” BASIC FEATURES OF REALIST SCHOOL: Realism denounces traditional legal rules and concepts and concentrates more on what the courts actually do in reaching the final decision in the case.

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