4/20/2021 Development of Natural Law theory - iPleaders

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Development of Natural Law theory 

By Diva Rai - November 4, 2020

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This article is written by Aryan Solanki.

Table of Contents 

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1. Introduction
2. Natural law theories in Ancient Period
2.1. Ancient theories of Greek period
2.2. Socrates
2.3. Aristotle
2.4. Plato
3. Natural law in Ancient Rome
3.1. Cicero
3.2. Stoics
4. Natural Law in Ancient India
4.1. Law of Rita
4.2. Dharma
5. Natural law in medieval Period
5.1. Thomas Aquinas
6. Natural law and Social Contract theory
6.1. Hobbes
6.2. John Locke
6.3. Rousseau
7. Decline of Natural of Natural law theory in 18th Century
8. Revival of natural law in 19th century
9. Conclusion
10. References

Introduction
The natural thing in the theory of natural law is its universal applicability. It is considered
divine law, eternal law and the law of nature. Natural law is the product of reason. It has been
gone through different stages and it is defined by men in different ways. Morality is the central
idea of this theory. Morality is considered as the higher law under which the validity of human
laws can be measured. In ancient time natural law was considered religious or supernatural. In
modern, it is responsible for the modern political and legal ideology. Natural law is based on
reason and good conscience which measures what should do or not to do. It is the reason
which distinguishes between good and bad.

In this article an attempt has been made to conduct a detailed study regarding the
development of natural law theory in Ancient, Medieval and Modern period. There has never
been unanimity among the jurists regarding the meaning of natural law. During the period of
renaissance, the social contract theories came into picture and these theories were
contradictory to each other. What was the understanding of natural law in Greece, Roman and

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in ancient Indian scriptures regarding the natural law? What were the causes of its decline in
19th century? All these questions are answered in this article.

Natural law theories in Ancient Period 

Ancient theories of Greek period

It is believed that the Greeks were the first Ancients who discovered the concept of natural law
and developed its essentials. At that time in Greece, there was no political stability which
made jurists think to develop new universal principals that would tackle and control the
arbitrariness and tyranny. The philosophy developed by the Greek thinkers was that if there is
anything universally valid, that is valid by Nature for all men irrespective of time and country.
And nature is something which is outside the control of men.

Socrates
He was a rational thinker and an enlightened master believed in human ‘insight’. He believed
that moral is the higher law. According to him man has his own insight which help him to know
what is good or what is bad, thus man should act accordance with his insight. He believed that
through his insight a man is able to inculcate moral values in him.

Aristotle
Aristotle is considered to be the founding father of natural law. In his logic, the whole world is
the product of nature. He divides the life of man into two parts, first, that the man is the
creature which is created by god and second he endowed with active reason by which he is
capable of forming his will. He also says that the principal of natural justice can be discovered
by this reason.

Plato
Plato’s work was much inspired by subsequent speculation of natural law themes. He opined
that God gave to all men an equal sense of justice and of ethical reverence so that they can
preserve themselves in the struggle of life. He believed that the justice is a harmony of man’s

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inner life and it can be achieved by reason and wisdom of man. In his ideal state each
individual is given a particular role according to his capacity.

Natural law in Ancient Rome

Natural law exercised a very constructive influence in Roman law. Romans applied natural law
to transform their narrow and rigid system into cosmopolitan. They had three divisions of law
viz., jus civile or civil law which was applicable on Roman citizens only. Jus gentium, the law
which is applicable on foreigners. And jus naturale was the law fixed by nature, immutable and
above to all human laws discovered by right reasons. On the basis of natural law roman
magistrates applied those rules which were common with foreign laws and to foreign citizens.
The body of rules which was developed in this processes was called jus genitum. These laws
were considered as the laws with universal legal principles and represented a good sense of
justice. Later on, jus civile and jus genitum became one when Roman citizenship extended all
over the Europe. There was unanimity among Roman jurists that whenever any contradiction
arose between Natural law and Positive law, former would prevail.

Cicero 
Cicero believed that the law is the highest reason which derives its authority from Nature. He
opined that there is divine reason inherent in the universe which sometimes can be more or
less identified with the physical ordering of the universe. Man is the highest creation by virtue
of his faculty of reasoning and his welfare is the ultimate purpose of his creation, thus this
reason commands what ought to be done and what ought not be done. It is reason of the man
by which the sense of justice and injustice can be measured.

Stoics 
Stoics was inspired by the principles of Plato’s theory of natural law and developed his own
theory. He says that the entire universe is governed by reason. Man is a part of the universe
that is also governed by reason. It is the reason of man which leads him to live according to
the nature. His theory of natural law had a great influence at the time of republic period.

Natural Law in Ancient India 

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Ancient Hinduism is the oldest religion in the world and much earlier to Greeks and Romans
the early rig Veda thinkers were deeply impressed by the forces and powers of nature. They
began to think about the natural powers such as the sun, the moon, the rains, the wind, the
storms, and lightning, etc. And they also began to put themselves into the questions that why
does the sun not fall down? Where go the stars by day? What is the reason behind the
lightning in the sky? The most prevalent perception was that the forces of nature were all
represented by divine forces of nature. In Ancient India the high moral law was always seen
above the positive law with universal validity like dharma “righteousness”, Artha “wealth”
Kama “desires” and moksha “salvation”. It was dharma in which the ethos of Indian way of
life was characterised.

In the Vedas different gods had been mentioned who were responsible for different natural
phenomena. It is the God “Varuna” who was very important in Vedic time. He was considered
as the apostle of justice, virtue, and righteousness in the universe. He is also given the status
of sky guardian of “Rita” in Vedas. “Rita” is the cosmic order, the ordered course of
things in the universe which is based on the laws of uniformity of nature and
universal causation.

Law of Rita
“Rita” is “satya” and “dharma” truth, justice and equity. Rita also means social order in the
society and the Vedic Gods were also responsible to maintain social order. Rita played an
important role in building an organised social life in the Vedic society. It provided social norms
and morality under which individual could realised his goods. In Vedas the Rita is defined in
moral sense as the unerring inner voice of conscience which tells us” this is Rita” that means
simply “this is right”, “this is true”.

Rita literally means “the straight line”. According to the MAX MULLER Rita in the Vedas applies
as the straight line for the natural force and powers such as the straight line for the sun, the
straight line for day and night, the straight line that regulates seasons, and straight line for
the universal natural phenomena. Rita also defined morality under the purview of its straight
line that means there is a straight line in the society which decides just and unjust.

Dharma 

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Dharma means “righteousness” and prescribes socio-religious code of conducts in the society.
It is known as the customs, moral laws, laws and duties in general, religious virtue ideas,
absolute truth, divine justice, conventional code of customs and traditions, what is right and
what is wrong. Individuals should pursue that is right universally instead of that is wrong. Its
principles are immutable, eternal, based on reason, truth and morality that purpose is to
sustain social order.

According to PANINI, a great Sanskrit grammarian of 5th century BC Dharma is an act of

religious merit, custom and usage. Dharma was considered as the regulator of all human
activities weather social or individual, rational or mystical and mundane or spiritual. Dharma
states that the social hierarchy must be maintained by the individuals by performing their
respective duties which have been assigned to them by nature. It established an ideal of
higher law by which the ruler and the ruled were equally bound and it was the model indicator
to distinguish between evil and good, right and wrong, just and unjust.

SAMKHYA was one the Philosophies that emerged around fourth century AD, according to
this school of philosophy “the world owes it creation and evolution from nature or prakriti.
Kapila was earliest exponent of SAMAKHYA. He opined that man’s life is shaped by the forces
of nature and not by any divine agency.

Natural law in medieval Period 

During the middle ages, the theological and philosophical ideas of catholic church Inspired by
the speculative thoughts and set up their own theory of Natural law. It was the time when
there was no political stability in a world emerging from the dark ages. The struggle was
beginning between the church and the state and there was the need for the church to
establish its supremacy. With a view to establish stability many catholic philosophers and
theologians came up with their theories that were more logical and systematic. Thomas
Aquinas was the most influential writer with the traditional approach to Natural law and his
famous work was the Summa Theologica.

Thomas Aquinas 
The core concept of the theory of Thomas Aquinas was the connection between means and
ends. According to him there is a relation in nature of things between a given operation and
its result. There is a tendency to develop in a certain way is inherent in things. Fire burns but

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it does not freeze. However, the human mind can appreciate the relation between the means
and ends. He can himself choose a particular end and devise means of achieving and law
consist means of achieving the ends.

He defined law as “an ordinance of reason for the common good made by him who has the
care of the community and promulgated”. Further he divided law into four categories –

Eternal Law ( Lex aeterna)

Natural Law (Lex Naturalis)

Divine Law (Law of Scriptures)

Human Laws (Lex Humana)

According to him eternal law as unchangeable law, natural law was that part of eternal law
which can be revealed by reason as he stated that man is a rational animal and he can decide
what is good by reflecting his own impulses and nature. Divine law is eternal law revealed
through scriptures and the church has the authority to interpret it. Human laws are the laws
made by the state with the purpose of safety and wellbeing of the men. However, these laws
must be in conformity with the natural laws.

If the human law is contradictory with natural law then it is unjust law as he gave the phrase
“Lex iniusta non est lex” an unjust law is not a law, and such unjust laws need not to be
followed. Hugo Grotius set up a new dimension of natural law. He states that natural law is so
immutable even it cannot be changed by god that means natural law is independent from
every divine force and it would exist if there were no God. According to him natural law is
depend upon the nature of the man and he called human nature as the grandmother, natural
law the parent and positive law the child. He also emphasised on the sovereign authority
which is formed by the individuals whose nature is to form an intellect desire a peaceful
society and from that are derived the principles of natural law.

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Natural law and Social Contract theory

The period of Renaissance and revolutions in Europe and America pave the way for the
spiritual emancipation for the individuals. Political absolutism needed a legal justification of its
claim over unlimited authority over the people. The legal construction used by the individuals
in the political struggle was that of social contract.

The concept of social contract is hypothetical construction of reason. The perception regarding
the social contract is that men in primitive society lived under the state of Nature; they neither
had government nor any law. According to some philosophers that state of nature was full of
hardships and oppressions while by some others there was bliss and joy. Men entered into an
agreement for the protection of their life and property and thus society came into existence. In
this society they undertook to respect each other and live with peace. In another agreement
they surrendered whole or a part of their freedom and rights to a sovereign authority which
guaranteed every one of them the protection of life, property and to certain extent liberty.
This was the process in which the sovereign authority was established. The main exponents of
social contract theory were Hobbes, Locke and Rousseau.

Hobbes
Hobbes understood natural law not certain ethical principles but the law of nature based on
observation and appreciation of human nature. According to him the chief principle of natural
law was the right of self-preservation. In his state of nature man lived in a chaotic state and
his life was under fear and selfishness. In that state of nature there was perpetual and

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devastating warfare which threatened everyone. Under these prevailing circumstances, natural
reason dictated to man the rule of self-preservation for which he tried to escape from the state
of permanent insecurity. Resulted to which they surrendered all their natural rights to a single
person whom they promised to obey unconditionally. The principle of self-preservation means
man has natural desire for security and order. Law of nature can be discovered by reason
which says what a man should do or not to do. During his time the England was under the civil
war and this situation convinced him of a great importance of state authority which he wanted
to be vested in an absolute ruler.

John Locke 
John Locke’s state of nature was state of peace, goodwill, mutual assistance and preservation
which was contrary to Hobbes’ state of nature. He was in favour of individualism and therefore
According to him, Natural law gives more power to individuals than the sovereign. According
to him individuals’ natural rights are inalienable; among them the right to property was
foremost. In his state of nature men had all the rights which nature could give them. But they
did not have an organisation which could regulate these rights.

According to him the right of private property existed prior to any social contract. With the
purpose of protection of property men entered into a social contract. Under this contract they
surrendered only a part of their rights in order to maintain law and order in society. Some
natural rights like right to property, liberty and life were vested in the individuals.

Rousseau 
According to Rousseau social contract is the hypothetical construction of reason. In his state of
nature every individual a free life of a savage. He neither knew right nor wrong and there was
no private property, no jealousy and no competition. There was innocence everywhere.
However, this state of affairs did not last long. In due course of time people started to think
about their possessions and the differences between the rich and poor came into picture which
became the reason of inequality.

In order to tackle these problems, people entered into a contract in which they surrendered
their rights to the community as a whole. Hence, the right of the individual were the rights of
the community. Rousseau’s emphasise was on the general will of the society and the sovereign
power was bound to do that which was in common good of the society.

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Decline of Natural of Natural law theory in 18th

Century 
In 18th century the social contract theory saw its decline. Natural law theory was reflected by
the economic and political changes which had taken place in Europe. These new changes and
developments required concrete and political solutions. The stupendous growth of natural
science and new political theories gave strength to empirical methods and rejected deductive
methods. There were many historians and philosophers who rejected natural theory by saying
that it was just a myth.

Hume showed that the reason understood in the system of natural law was based on
confusion. And neither values nor justice are inherent in nature. According to Bentham
natural law is nothing but a phrase. He criticised natural law and called it “simple and
rhetorical nonsense”. His view regarding the principle of equality was negative as he said that
“Absolute inequality is absolutely impossible” and absolute liberty is directly repugnant in any
kind of government. Austin was also against natural law theory and according to him it was
ambiguous and misleading. He says that all the natural rights of the individuals were created
and regulated by the state and the state did not originate in a social contract.

Revival of natural law in 19th century 

Western society was completely shattered after the First World War. There was no stability and
the need for an ideal of justice was arisen. Theories of positive law completely failed to solve
new problems created by the changed social conditions which resulted natural law theory was
revived. The emergence of ideologies such as Fascism and Marxism also led to the revival of
natural law theories.

This revived natural law is relative not abstract and unchangeable and concerned with practical
problems not abstract ideas. This new theory of natural law deals with various human ideals.
Therefore, it is called “natural law with variable content”.

Conclusion
Every society is subject to constant change and these changes take place time to time as per
the needs of the individuals. It is clear by this study that the natural law has also been the

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subject to change since Ancient period. Its scope is very wide and covers different aspects of
society. It has been used to support different ideologies such as theocracy, Absolutism and
individualism. It has inspired various revolutions and has also influenced the development of
positive law.

Principles of natural law have been embodied in legal system of different countries. For
example, in the legal system of England a number of principles of natural law have been
embodied. India also borrowed certain principles from England such as justice, equity and
good conscience. In the constitution of India a large number of principles are based on the
theory of natural law such as Fundamental rights, right to equality and supremacy of judiciary.
Finally, we can say that the Natural law has made a great contribution in the legal
jurisprudence of the world.

References
1. Studies In Jurisprudence & Legal Theory, Dr N.V. PARANJAPE.
2. Jurisprudence and Legal theory, Dr V.D MAHAJAN.

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