INTRODUCTION

The concept of natural law has taken several forms. The idea began with the
ancient Greeks' conception of a universe governed in every particular by an
eternal, immutable law and in their distinction between what is just by
nature and just by convention. Stoicism provided the most complete
classical formulation of natural law. The Stoics argued that the universe is
governed by reason, or rational principle; they further argued that all
humans have reason within them and can therefore know and obey its law.
Because human beings have the faculty of choice (a free will), they will not
necessarily obey the law; if they act in accordance with reason, however,
they will be "following nature."

Christian philosophers readily adapted Stoic natural law theory, identifying

natural law with the law of God. For Thomas Aquinas, natural law is that part
of the eternal law of God ("the reason of divine wisdom") which is knowable
by human beings by means of their powers of reason. Human, or positive,
law is the application of natural law to particular social circumstances. Like
the Stoics, Aquinas believed that a positive law that violates natural law is
not true law.

With the secularization of society resulting from the Renaissance and

Reformation, natural law theory found a new basis in human reason. The
17th-century Dutch jurist Hugo Grotius believed that humans by nature are
not only reasonable but social. Thus the rules that are "natural" to them --
those dictated by reason alone -- are those which enable them to live in
harmony with one another. From this argument, by the way, Grotius
developed the first comprehensive theory of international law.

Natural law theory eventually gave rise to a concept of "natural rights." John
Locke argued that human beings in the state of nature are free and equal,
yet insecure in their freedom. When they enter society they surrender only
such rights as are necessary for their security and for the common good.
Each individual retains fundamental prerogatives drawn from natural law
relating to the integrity of person and property (natural rights). This natural
rights theory provided a philosophical basis for both the American and
French revolutions. Thomas Jefferson used the natural law theory to justify
his trinity of "inalienable rights" which were stated in the United States
Declaration of Independence.

During the 19th century natural law theory lost influence as utilitarianism
and Benthams, positivism, materialism, and the historical school of
jurisprudence became dominant. In the 20th century, however, natural law
theory has received new attention, partly in reaction to the rise of

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totalitarianism and an increased interest in human rights throughout the
world. With this contemporary interest in mind, let's now turn to our
attention to the natural law theory as understood by the tradition of
Classical Realism.

In its simplest definition, natural law is that "unwritten law" that is more or
less the same for everyone everywhere. To be more exact, natural law is the
concept of a body of moral principles that is common to all humankind and,
as generally posited, is recognizable by human reason alone. Natural law is
therefore distinguished from -- and provides a standard for -- positive law,
the formal legal enactments of a particular society.

Since law must always be some dictate of reason, natural law also will be
some dictate of reason. In fact, it is the law discovered by human reason.
Our normal and natural grasp of the natural law is affected by reason, that
is, by the thinking mind, and in this service reason is sometimes called
"conscience." We, in all our human acts, inevitably see them in their relation
to the natural law, and we mentally pronounce upon their agreement or
disagreement with the natural law. Such a pronouncement may be called a
"judgment of conscience." The "norm" of morality is the natural law as
applied by conscience. Lastly, we can say that the natural law is the
disposition of things as known by our human reason and to which we must
conform ourselves if we are to realize our proper end or "good" as human
beings.

To sum it up, then, we can say that the natural law:

is not made by human beings;

is based on the structure of reality itself;

is the same for all human beings and at all times;

is an unchanging rule or pattern which is there for human beings to

discover;

is a means by which human beings can rationally guide themselves to

their good.

It is interesting to note that virtually everyone seems to have some

knowledge of natural law even before such knowledge is codified and
formalized. Even young children make an appeal to "fair play," demand that
things be "fair and square," and older children and adults often apply the
"golden rule." When doing so, they are spontaneously invoking the natural

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law. This is why many proponents of the natural law theory say it is the law
which is "written upon the hearts of men."

1. Kinds of Natural Law Theory

The first is a theory of morality. First, moral propositions have what is
sometimes called objective standing in the sense that such propositions are
the bearers of objective truth-value; that is, moral propositions can be
objectively true or false. Though moral objectivism is sometimes equated
with moral realism, the relationship between the two theories is
controversial. Geoffrey Sayre-McCord, for example, views moral
objectivism as one species of moral realism, but not the only form; on Sayre-
McCords view, moral subjectivism and moral intersubjectivism are also
forms of moral realism. Strictly speaking, then, natural law moral theory is
committed only to the objectivity of moral norms.

The second thesis constituting the core of natural law moral theory is the
claim that standards of morality are in some sense derived from, or entailed
by, the nature of the world and the nature of human beings. St. Thomas
Aquinas, for example, identifies the rational nature of human beings as that
which defines moral law: the rule and measure of human acts is the reason,
which is the first principle of human acts. On this common view, since
human beings are by nature rational beings, it is morally appropriate that
they should behave in a way that conforms to their rational nature. Thus,
Aquinas derives the moral law from the nature of human beings (thus,
natural law).

But there is another kind of natural law theory having to do with the
relationship of morality to law. According to natural law theory of law, there
is no clean division between the notion of law and the notion of morality.
Though there are different versions of natural law theory, all subscribe to
the thesis that there are at least some laws that depend for their authority
not on some pre-existing human convention, but on the logical relationship
in which they stand to moral standards. Otherwise put, some norms are
authoritative in virtue of their moral content, even when there is no
convention that makes moral merit a criterion of legal validity. The idea that
the concepts of law and morality intersect in some way is called the Overlap
Thesis.

As an empirical matter, many natural law moral theorists are also natural
law legal theorists, but the two theories, strictly speaking, are logically
independent. One can deny natural law theory of law but hold a natural law
theory of morality. John Austin, the most influential of the early legal

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positivists, for example, denied the Overlap Thesis but held something that
resembles a natural law ethical theory.

Indeed, Austin explicitly endorsed the view that it is not necessarily true
that the legal validity of a norm depends on whether its content conforms to
morality. But while Austin thus denied the Overlap Thesis, he accepted an
objectivist moral theory; indeed, Austin inherited his utilitarianism almost
wholesale from J.S. Mill and Jeremy Bentham. Here it is worth noting that
utilitarians sometimes seem to suggest that they derive their utilitarianism
from certain facts about human nature; as Bentham once wrote, nature has
placed mankind under the governance of two sovereign masters, pain and
pleasure. It is for them alone to point out what we ought to do, as well as to
determine what we shall do. On the one hand the standard of right and
wrong, on the other the chain of causes and effects, are fastened to their
throne (Bentham 1948, 1). Thus, a commitment to natural law theory of
morality is consistent with the denial of natural law theory of law.

Conversely, one could, though this would be unusual, accept a natural law
theory of law without holding a natural law theory of morality. One could, for
example, hold that the conceptual point of law is, in part, to reproduce the
demands of morality, but also hold a form of ethical subjectivism (or
relativism). On this peculiar view, the conceptual point of law would be to
enforce those standards that are morally valid in virtue of cultural
consensus. For this reason, natural law theory of law is logically independent
of natural law theory of morality. The remainder of this essay will be
exclusively concerned with natural law theories of law.

2. Conceptual Naturalism

a. The Project of Conceptual Jurisprudence

The principal objective of conceptual (or analytic) jurisprudence has
traditionally been to provide an account of what distinguishes law as a
system of norms from other systems of norms, such as ethical norms. As
John Austin describes, conceptual jurisprudence seeks the essence or
nature which is common to all laws that are properly so called. Accordingly,
the task of conceptual jurisprudence is to provide a set of necessary and
sufficient conditions for the existence of law that distinguishes law from non-
law in every possible world.

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While this task is usually interpreted as an attempt to analyze the concepts
of law and legal system, there is some confusion as to both the value and
character of conceptual analysis in philosophy of law. As Brian Leiter points
out, philosophy of law is one of the few philosophical disciplines that take
conceptual analysis as its principal concern; most other areas in philosophy
have taken a naturalistic turn, incorporating the tools and methods of the
sciences. To clarify the role of conceptual analysis in law, Brian Bix
distinguishes a number of different purposes that can be served by
conceptual claims: (1) to track linguistic usage; (2) to stipulate meanings;
(3) to explain what is important or essential about a class of objects; and (4)
to establish an evaluative test for the concept-word. Bix takes conceptual
analysis in law to be primarily concerned with (3) and (4).

In any event, conceptual analysis of law remains an important, if

controversial, project in contemporary legal theory. Conceptual theories of
law have traditionally been characterized in terms of their posture towards
the Overlap Thesis. Thus, conceptual theories of law have traditionally been
divided into two main categories: those like natural law legal theory that
affirm there is a conceptual relation between law and morality and those like
legal positivism that deny such a relation.

b. Classical Natural Law Theory

All forms of natural law theory subscribe to the Overlap Thesis, which
asserts that there is some kind of non-conventional relation between law
and morality. According to this view, then, the notion of law cannot be fully
articulated without some reference to moral notions. Though the Overlap
Thesis may seem unambiguous, there are a number of different ways in
which it can be interpreted.

The strongest construction of the Overlap Thesis forms the foundation for
the classical naturalism of Aquinas and Blackstone. Aquinas distinguishes
four kinds of law: (1) eternal law; (2) natural law; (3) human law; and (4)
divine law. Eternal law is comprised of those laws that govern the nature of
an eternal universe; as Susan Dimock (1999, 22) puts it, one can think of
eternal law as comprising those entire scientific (physical, chemical,
biological, psychological, etc.) Laws by which the universe is ordered.
Divine law is concerned with those standards that must be satisfied by a
human being to achieve eternal salvation. One cannot discover divine law
by natural reason alone; the precepts of divine law are disclosed only
through divine revelation.

The natural law is comprised of those precepts of the eternal law that
govern the behavior of beings possessing reason and free will. The first

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precept of the natural law, according to Aquinas, is the somewhat vacuous
imperative to do well and avoid evil. Here it is worth noting that Aquinas
holds a natural law theory of morality: what is good and evil, according to
Aquinas, is derived from the rational nature of human beings. Good and evil
are thus both objective and universal.

But Aquinas is also a natural law legal theorist. On his view, a human law
(that is, that which is promulgated by human beings) is valid only insofar as
its content conforms to the content of the natural law; as Aquinas puts the
point: every human law has just so much of the nature of law as is derived
from the law of nature. But if in any point it deflects from the law of nature,
it is no longer a law but a perversion of law. To paraphrase Augustines
famous remark, an unjust law is really no law at all.

The idea that a norm that does not conform to the natural law cannot be
legally valid is the defining thesis of conceptual naturalism. Blackstone
articulates the two claims that constitute the theoretical core of conceptual
naturalism: 1) there can be no legally valid standards that conflict with the
natural law; and 2) all valid laws derive what force and authority they have
from the natural law.

It should be noted that classical naturalism is consistent with allowing a

substantial role to human beings in the manufacture of law. While the
classical naturalist seems committed to the claim that the law necessarily
incorporates all moral principles, this claim does not imply that the law is
exhausted by the set of moral principles. There will still be coordination
problems (e.g., which side of the road to drive on) that can be resolved in
any number of ways consistent with the set of moral principles. Thus, the
classical naturalist does not deny that human beings have considerable
discretion in creating natural law. Rather she claims only that such
discretion is necessarily limited by moral norms: legal norms that are
promulgated by human beings are valid only if they are consistent with
morality.

Critics of conceptual naturalism have raised a number of objections to this

view. First, it has often been pointed out that, contra Augustine, unjust laws
are all-too- frequently enforced against persons. As Austin petulantly put the
point:

Now, to say that human laws which conflict with the Divine law are not
binding, that is to say, are not laws, is to talk stark nonsense. The most
pernicious laws, and therefore those which are most opposed to the will of
God, have been and are continually enforced as laws by judicial tribunals.
Suppose an act innocuous, or positively beneficial, be prohibited by the
sovereign under the penalty of death; if I commit this act, I shall be tried

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and condemned, and if I object to the sentence, that it is contrary to the law
of God, who has commanded that human lawgivers shall not prohibit acts
which have no evil consequences, the Court of Justice will demonstrate the
inconclusiveness of my reasoning by hanging me up, in pursuance of the
law of which I have impugned the validity (Austin 1995, 158).

Of course, as Brian Bix points out, the argument does little work for Austin
because it is always possible for a court to enforce a law against a person
that does not satisfy Austins own theory of legal validity.

Another frequently expressed worry is that conceptual naturalism

undermines the possibility of moral criticism of the law; inasmuch as
conformity with natural law is a necessary condition for legal validity, all
valid law is, by definition, morally just. Thus, on this line of reasoning, the
legal validity of a norm necessarily entails its moral justice. As Jules
Coleman and Jeffrey Murphy (1990, 18) put the point:

The important things [conceptual naturalism] supposedly allows us to do

(e.g., morally evaluate the law and determine our moral obligations with
respect to the law) are actually rendered more difficult by its collapse of the
distinction between morality and law. If we really want to think about the
law from the moral point of view, it may obscure the task if we see law and
morality as essentially linked in some way. Moral criticism and reform of law
may be aided by an initial moral skepticism about the law.

There are a couple of problems with this line of objection. First, conceptual
naturalism does not foreclose criticism of those norms that are being
enforced by a society as law. Insofar as it can plausibly be claimed that the
content of a norm being enforced by society as law does not conform to the
natural law, this is a legitimate ground of moral criticism: given that the
norm being enforced by law is unjust, it follows, according to conceptual
naturalism, that it is not legally valid. Thus, the state commits wrong by
enforcing that norm against private citizens.

Second, and more importantly, this line of objection seeks to criticize a

conceptual theory of law by pointing to its practical implications a strategy
that seems to commit a category mistake. Conceptual jurisprudence
assumes the existence of a core of social practices (constituting law) that
requires a conceptual explanation. The project motivating conceptual
jurisprudence, then, is to articulate the concept of law in a way that
accounts for these pre-existing social practices. A conceptual theory of law
can legitimately be criticized for its failure to adequately account for the
pre-existing data, as it were; but it cannot legitimately be criticized for
either its normative quality or its practical implications.

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A more interesting line of argument has recently been taken up by Brian Bix.
Following John Finnis, Bix rejects the interpretation of Aquinas and
Blackstone as conceptual naturalists, arguing instead that the claim that an
unjust law is not a law should not be taken literally:

A more reasonable interpretation of statements like an unjust law is no law

at all is that unjust laws are not laws in the fullest sense. As we might say
of some professional, who had the necessary degrees and credentials, but
seemed nonetheless to lack the necessary ability or judgment: shes no
lawyer or hes no doctor. This only indicates that we do not think that the
title in this case carries with it all the implications it usually does. Similarly,
to say that an unjust law is not really law may only be to point out that it
does not carry the same moral force or offer the same reasons for action as
laws consistent with higher law (Bix 1996, 226).

Thus, Bix construes Aquinas and Blackstone as having views more similar to
the neo- naturalism of John Finnis discussed below in Section III.
Nevertheless, while a plausible case can be made in favor of Bixs view, the
long history of construing Aquinas and Blackstone as conceptual naturalists,
along with its pedagogical value in developing other theories of law, ensures
that this practice is likely, for better or worse, to continue indefinitely.

Critical Appraisal of Natural Law Theory

The concept of natural law has been used to support different ideologies
from time to time. It has been used not only to support absolutism,
individualism but also to overthrow government. The natural law philosophy
has contributed a lot in the development of law and legal system. The
natural law principles of justice, morality and conscience have been
embodied in various legal systems. Man-made positive laws are arbitrary
ant contingent whereas natural being regulated by laws of nature is
inevitable and obligatory. Natural law emanating from human reasoning
which is known for its uniformity and general acceptance is not variable.
Natural law helped in denouncing the divine authority of the Church. It
helped in generating a favorable climate for reformation, renaissance and
provided a sound foundation for fundamental human rights.

Natural law also played an important part in the development of modern

law. Legal history testifies that it was natural law which directly or indirectly
provided a model for the first man-made law. Appreciating the contribution
of natural law Roscoe Pound said, The uncertainty of the higher law is
preferable to the arbitrariness and insolence of naked force.

Despite the merits of natural law philosophy, it has been criticized for its
weakness on the following grounds:-

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 1. Ought to be may not always necessarily conform to the needs of the
society. For instance. It is natural for men to beget children, as it is for
trees to bear fruit. But many would like to take the help of family
planning measures in order to restrict the growth of population but no
one would like to restrict the growth of fruit on trees. Therefore, giving
birth to children may be a natural phenomenon but it may not always
be considered as obligatory moral duty of men to conform to this
conduct.

2. The rules of morality embodied in natural law are not amenable to

changes but the legal rules do need a change with the changing
needs of society.

3. The concept of morality is a varying content changing from place to

place; hence, it would be futile to think over the universal applicability
of law. It depends on the society. One society may adhere to
monogamy while the other one may permit plurality of marriages.

4. Disputes relating to laws of nature and morality cannot be subjected

to judicial scrutiny as the verdict may always be questioned since it is
based on subjective discretion of the judge.

Despite the above shortcomings, it cannot be denied that natural law

has played a crucial role in shaping the law. Its significance lies in the
fact that an unjust law may not last long and it is bound to lose public
support in the absence of obedience by the people.

Natural Law Ideas in English Law

In some braches of modern English law, principles of natural justice
are openly invoked to test the validity of legal acts but that does not
apply to test the validity of any Act of parliament as Parliament is
supreme in England. A custom is not permitted by courts if it is not
reasonable. By means of an order of prohibition or certiorari, the high
court in England can control administrative acts and quasi-judicial
decisions of administrative bodies which are contrary to the rules of
natural justice.

Natural law ideas have exercised the most profound and enduring
influence upon English law as guiding principles in law making. The
attempt of Lord Mansfield to introduce the doctrine of unjust
enrichment in English law was an applications of the principles of
natural justice.

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 The concept of quasi-contract in English law is based on natural law
principles. The principles of justice, equality and good conscience
are based on natural law ideas. While welcoming the American Bar
Association in London in 1957, Lord Kilmaur, referred to the doctrine
which we share with a wider community even that of the common law
but which has for various reasons become a little dusty and old-
fashioned in recent years and which I myself would like to see
refurbished and restored to the position which it once used to occupy.
I refer to the doctrine of the law of nature, one of the nobles
conceptions in the history of jurisprudence.

Natural Law and the Supreme Court of India

In recent years, the ideas of natural justice have become more and
more important and have been relied upon by the Supreme Court of
India and High Courts in their decisions. In A.K.Kraipak v. Union of
India, the Supreme Court observed that the aim of the rules of natural
justice is to secure justice or to put it negatively, to prevent
miscarriage of justice. These rules can operate only in areas not
covered by any law validly made. They do not supplant the law of the
land but supplement it.

The concept of natural justice has undergone a great deal of change in

recent years. In the past it was thought that it included just two rules,
namely:

1. No one shall be a judge in his own cause(nemo debet esse judex

propria causa).

2. No decision shall be given against a party without affording him a

reasonable hearing(audi alteram partem).

Very soon thereafter, a third rule was added which provides that
quasi-judicial enquiries must be held in good faith, without bias and
not arbitrarily or unreasonably.

In Maneka Gandhi v. Union of India, the Supreme Court observed

that natural justice is a great humanising principle intended to
invest law with fairness and to secure justice. Over the years, it has grown
into a widely pervasive rule affecting large areas of administrative action.
The soul of natural justice is fairplay in action and it has received widest
recognition throughout the democratic world. The Supreme Court held that
even the procedure laid down by law must be right, just and fair. It is liable
to be set aside on the ground that it is not reasonable.

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 BIBLIOGRAPHY
Books:

1. Jurisprudence and Legal Theory by V.D.Mahajan.

2. The Province of Jurisprudence Determined.
3. Jurisprudence: The Philosophy & Method of the Law by Edgar
Bordenheimer

Websites:

1. www.legalserviceindia.com
2. www.radicalacademy.com

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