An Introduction of Jurisprudence

Prepared by Badri Prasad Sharma

(Natural Jurisprudence): Ancient Naturalism
Natural law theory has a history reaching back centuries BC, and the vigor with which it
flourishes notwithstanding periodic eclipse, especially in the 19 th century, is indicative of its
vitality. There is no one theory one versions have evolved throughout this enormous span of
time. The term “natural law”, has been variously applied by different people at different times.
Literally speaking Natural law is a body of laws that is derived from nature and is thought to be
binding on all human beings. In common sense Natural Law means the law that is largely
unwritten and consists of principles of ought as to reveal by human nature or reason or derived
from God etc. Natural Laws are labeled as morality, justice, ethics, right reason, good conduct,
equality, liberty, freedom, social justice, democracy etc. Natural Law as such is not a body of
actual enacted or interpreted law enforced by courts.

Main presuppositions of Natural Law Theory

 Natural law is based on value judgments which emanate from some absolute source and
which are in accordance with nature and reason. These value judgments express
objectively ascertainable principles which govern the essential nature of persons and of
the universe.
 The principles of Natural law are immutable, eternally valid and can be grasped by the
proper employment of human reason.
 These principles are universal and when grasped they must overrule all positive law,
which will not truly be law unless it conforms to Natural law.
 Law is a fundamental requirement of human life in society.

Socrates:
 Human insight of man has the capacity to distinguish between good and bad.
 Virtue is the knowledge and whatever is not virtuous in sin.
 Two kinds of justice are natural justice and legal justice.
 Natural Justice is uniformly applicable but legal justice differs place to place.
 Natural law is necessary to country for security and stability.
 Natural law supports to human reasoning.

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Plato: the state reflects human nature. No man is self-sufficing and a division of labour is
needed, allowing each member of society to perform the tasks for which he is, by nature, best
fitted. The result is the emergence of a variety of groups within society, craftsman (farmers,
artisans) will produce an army of warriors who, as guardians, will protect the community, the
most highly-trained guardians will become elite of rulers.
The state is a means to an end, namely the attainment of justice. The general virtue of justice
arises when each class within the state is fulfilling its own special functions and thereby attaining
its own virtues.
Aristotle: Aristotle expounded the theory of natural law and positive law in clearer terms than
his predecessors (ancestors). The purpose of state, community, law is to enable man to realize
good life that is living according to virtue. When perfected is the best of animal, but if he be
isolated from law and justice he is the worst of all. Natural law is the reason, unaffected by the
desire. Positive law should incorporate standard principles of law. Positive law is a outcome of
human mind and natural law is product of wisdom and reason. According to him, natural law
means:
1. Natural law is the man's insight for eternal moral values.
2. Man is the creation of God who possesses insight and reason to articulate his actions.
3. Natural law is the reason unaffected by the desires.
4. Positive law should incorporated standard principles of natural law.
5. Ideals of natural law are emanated from the human conscience and not form human mind.
6. Positive law is the outcome of human mind.
He made a distinction between natural justice and conventional justice.
 Natural Justice: common to all human kind and based on the fundamental end or
purpose of human beings as social and political beings, which he concluded to be the
attainment of a “state of goodness”.
 Conventional Justice: which are varies from state to state in accordance with the history
and needs of particular human communities. Conventional justice also two kinds,
1. Distributive Justice and 2. Corrective Justice
2. Distributive Justice: It shall be equitably allotted to the members of a
community according to the principal of proportionate equality. Distributive
justice is based on the principle that there has to be equal distribution among
equals or equal things shall be given to equal persons, unequal’s things to unequal
persons. Distribution justice is exercised in the distribution of honour, wealth and
other divisible assets of the community. Justice in the distributive sense would

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 aim at ‘proportion’ and contrast to the disproportion. Measurement of the equality
was that of merit and civic excellence i.e. if ‘X’ is twice as deserving as ‘Y’, his
share should be twice at large.
3. Corrective Justice: Corrective justice stands in contrast to distributive justice. It
is concern with the restoration of a disturbed equilibrium. The judge will treat
parties as equals, will investigate the nature of the damage done and will seek to
equalize the situation by imposing penalties. Corrective justice seeks to restore
equality when this has been disturbed. It seeks to equalize the situation by
imposing penalties. Aristotle note that corrective justice may administered in the
situation that is voluntary transactions such as selling, buying, hiring etc and
involuntary transactions like theft, assaults etc. The aim of government is to fit
the individual for the good life and to satisfy his social instincts.

Cicero:

The Romans’ encounter with Greek civilization and culture produced a deep impression on
Roman jurists. The interpretation of laws, the collection and systematization of data by Roman
jurists so that principles might be elicited, owed much to the dialectical method and the rules of
rhetoric favoured by the Greeks.

Cicero and Natural Law: His definition of Natural (true) law as “right reason in agreement
with nature” has been enormously (extremely) influential. Cicero was the first natural lawyer to
contend for the striking down of positive laws which contravened natural law. Or he is a Rome’s
greatest legal orater (spokeperson). In De Legibus Cicero examines the basis of law. To him law
is highest reason, implanted (fixed) in man and commanding that which we ought to do and
prohibiting the opposite. The highest form of reason, which may be discovered in nature,
becomes when firmly (confidently) rooted in the human mind and further developed . law is
standard by which justice and injustice may be measured.

True law came into existence simultaneously with the divine mind. True law is right reason in
agreement with nature, it is of universal application, unchanging and everlasting. It summons to
duty by its commands and averts from wrong-doing by its prohibitions. It is a sin to try and alter
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this law, nor it is allowable to repeal any part of it, and it is impossible to abolish it entirely. And
further regarding the universality of law “nor will it be one law at home and a different one at
Athens, nor otherwise tomorrow than it is today; but one and the same law, eternal and
unchangeable binding all peoples and all ages; and God, its designer, expounder, enactor and the
sole ruler and governor of all things.

The Roman Period

Many of the famous Roman jurists of the classical epoch of Roman law were likewise under the
influence of the Stoic philosophy. However, the work of these men was largely of a practical
nature, and they had little occasion to engage in abstract theoretical discussion about the nature
of law and justice. Romans’ clarify and distinguish the threefold Roman division of law, namely,
jus naturale, jus gentium and jus civile.

Jus Naturale was the law of nature fixed, immutable, higher to all human laws derived from
dictate of right reason. It had no legal validity in the courts.

Jus Gentium was that part of law which applied to Romans and foreigners and administered by
praetor peregrinus. It was a part of positive law of Rome, to regulate the foreigner. the body of
law applicable was jus gentium. Jus Gentium was identified with Jus Naturale. Both jus naturale
and jus gentium were based on human nature, reason and morality. Salmond says that jus
gentium was a purely Roman idea attained by Roman lawyers.

Jus Civile was the civil or positive law, enforceable by the court to regulate the relationship
between the Roman citizens themselves. It was the special law of the State for Romans
exclusively. In practice the jus civile was what is called the municipal law or positive state law.

Natural Law and Medieval Age (Christian Period)

End of Roman era, the principles of natural law got its place under the writings of Christian’s
fathers. In this era natural law was dominated by Christian Church fathers. Natural law was

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dominated by Christian theology and political and legal ideas which the Church had taken over
from the Romans. In order to maintain stability, status quo and peace natural law was given
religious color. In this period two fundamental principals animated namely:

1. Unity: derived from God, and involving one faith, one church and one empire and
2. Supremacy of Law: not merely man-made but conceived (considered) as part of the
unity of universe.

St. Thomas Aquinas 1225-1274

St. Thomas Aquinas was the first important theologist, who in his famous works Summa
Theologia. He says that social organization and state are natural phenomena for the common
good made by him, who has the care of the community and promulgated.

He divided law into four categories in his Summa Theologea.

1. Lex Aterna (Eternal Law): eternal law constitutes by Gods, rational guidance of all
created things and is derived from the divine wisdom and based on the divine plan. Or
it also called “law of God”.
2. Lex Divinea (Divine Law/Law of Scriptures): that part of eternal law which is
manifested through relations with in the Christian Scriptures.
3. Lex Naturalis (Natural Law): which is eternal law exposed to man through the
exercise of reason.
4. Lex Humana (Human Laws): Human law is derived from both divine and natural
law and which must be directed towards the attainment of the common good. This
law may be variable in accordance with the time and circumstances in which it is
formulated, but it essence is to be just. Thus lex injusta non est lex (an unjust law is
not law).
According to him positive law/ manmade law should not conflict with natural law, if it conflict,
it is not law and does not bind the conscience of the subject. This law is based on reason and not
the mere arbitrary with the rulers. Church is the authoritative interpreter to the law. Therefore, it
has authority to give verdict upon the goodness of positive law also.

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For Aquinas a human law would be unjust where it:

 Furthers the interests of the law-giver only,

 Exceeds the powers of the law-giver,
 Imposes burdens unequally on the governed.
Under these circumstances then, disobedience to an unjust law becomes a duty. However such
disobedience though justified, should be avoided where its effects would be to lead to social
instability, which is a greater evil than the exercise of an unjust law.

The Secularization of Natural Law

The secularization of natural law began with the decline of the Roman Catholic Church
following from the reformation in Europe. This secularization resulted from Protestant theorists
seeking to develop a doctrine of natural law which would not be dependent on the papacy and
papal pronouncements for its coherence. One of the main secular natural law theorists at this
stage was Hugo Grotius.

Hugo Grotius (1583-1645):

The Duch scholar, statesman, philosopher, jurist and diplomat who in his writings sought to
separate natural law from its narrow theological foundations. He gave classical expression to the
new foundations of natural law as well as the principles of modern international law. His famous
work De jure Belli ac pacis, and also considered as father of international law. The aim of
Grotius was to construct a system of natural law independent of theological pre-suppositions
which culminated in making natural law “secular” and non-religious. Thus he broke away from
the scholasticism and defined natural law not just based on reason but on right reason. The
natural law principles are derived from the nature of the human intellect with requires and
desires society to be peaceful. Thus these principles are independent of divine command. To
quote him ‘Natural law is so immutable that it cannot be changed by God himself’. Any law
contrary to the principles so derived would be invalid from the point of view of rationality. Laws
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could be seen as having a constructive and practical function, the creation and maintenance of a
peaceful society. In conclusion

 He is the founder of the principle of International Law to follow by states during war and
peace.
 Natural law is not only based on reason but it is based on right reason i.e., self- supporting
reason of man.
 He focuses stability of political order and maintenance of international peace.
 There should be equality and freedom to all states.
 Man is naturally peace loving to live in peaceful society.
 Divine law is Grandmother, natural law is parent and positive law is child.

Social Contract Theory and Natural Law

Thomas Hobbes (1588-1679): Hobbes theory of natural law is to be seen in the context of civil
war between Protestants and Catholics in England during 16 th century causing political
uncertainty and instability and so he advocated firm and inflexible application of the laws against
disorder and conflicts. He described as a belated (late) medievalist; absolute sovereign power
was justified by postulating an imaginary compact between rulers and ruled.

State of Nature: in a state of nature everyone is entitled to everything; but this leads to friction.
So Hobbes believed that Man’s life in a state of nature was one of fear and selfishness. “The life
of Man” in his own words, was “solitary, poor, nasty, brutish and short”. It is a fundamental
dictate of the law of nature that people desire peace and justice. The idea of self-preservation and
avoiding misery and pain are inherent in his nature. He desires society also.

Social Contract: these natural inclinations induced him to enter into a contract and surrender his
freedom and power to some authority. The law of nature can be discovered by reason which says
what a man should do and what he should do and what he should not do. Man has a natural
desire for security and order. This can be achieved only by establishing a superior authority
which must command obedience. Therefore, Hobbes is a supporter of absolutism; subject has no

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rights against the sovereign. Though he makes a suggestion that the sovereign should be bound
by ‘natural law’, it is not more than a moral obligation.

In Hobbes’s scheme the authority of the Church as the interpreter of God’s law is vigorously
denied. All power is given to a severely utilitarian secular sovereign. He advocated for an
established order. During the Civil war in Britain, his theory came to support the monarch. In
fact, it stood for stable and secure government. Individualism, materialism, utilitarianism and
absolutism all are interwoven in the theory of Hobbes. Austin owes much to him and may other
later jurists have also taken inspiration from him.

Remember Points:

 Natural law did the evolution of social contract to support absolute power and authority of
the ruler.
 The priori life of nature was solitary, poor, nasty, brutish, short, misery, pain, so men
surrendered their freedom to mightiest authority to protect their lives and property by
voluntarily entering into contract.
 Civil law is the real law because it is commanded and enforced by the sovereign.
 Hobbes' doctrine of absolutism of sovereign is the outcome of Austinian imperative
positivism.

John Locke (1632-1704):

It has been pointed out earlier that during the Middle Ages the Church remained supreme. Then
came Renaissance and the changed conditions and the new political theories strongly advocated
for the sovereignty of the state. Now state emerged very powerful. It went to undermine the
importance of the individual. But the subsequent developments made the individual to desire
some freedom. A new interpretation of natural law was necessary in order to support the
individual against the power of the sovereign. Locke championed this cause. He interpreted the
natural law and the social contract in a new way.

State of Nature: the state of nature, which preceded the social contract, was not one of anarchy,
as Hobbes had imagined, but was a state of liberty not of license. State of nature was golden age.

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It had however, one defect, namely that ‘property’ was insecure and by property was meant life,
liberty and estate. Property in the sense described was insecure because

 There was no established law, nor

 An impartial judge, and
 The natural power to execute natural law was not always commensurate (adequate) with
the claim.
Social Contract: it was for the purpose of protection of property that men entered into the
‘social contract’, did not surrender all his rights but only a part of them, namely to maintain order
and to enforce the law of nature. His natural rights as the rights to life, liberty and property he
retained with himself. The purpose of government and law is to uphold and protect the natural
rights. So long as the governments fulfils this purpose, the law is given by it are valid and
binding but when it ceases to do that, its laws have no validity and the government may be
overthrown.

Locke’ theory is contrary to that of Hobbes. The former supports liberty whereas the latter
supports authority. Locke’s view was support of the Glorious Revolution (1648) in a theoretical
form. His plea is for a constitutionally limited sovereign. His views led to parliamentary
democracy. His inalienable rights of the individual came to be embodied in many constitutions
and were guaranteed to the individual. In 19 th century’s laissez faire theory in economics derived
inspiration from his views.

Jean Jacques Rousseau (172-1778): in which the idea of social contract, the state of nature was
an era of peaceful and original freedom. Every individual had unlimited liberty. There was no
private property, no competition and no jealousy. Every individual lived the free life of a savage.
He knew neither right nor wrong and was away from all notions of virtue and vice. There was
innocence everywhere. However, this state of affairs did not last long. The increase in population
and the dawn of reason were mainly responsible for the change. Simplicity and happiness
disappeared. After that they enter into a contract

Social contract: by a social contract, everyone surrendered to the community all his rights and
the result was that the community becomes sovereign. Even after the contract, the individual

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remained as free he was before. By the social contract men united for the preservation of their
rights of freedom and equality. For this they surrendered their rights not to a single individual
sovereign, but to the community to which Rousseau gives the name of “general will”.

It is the duty of every individual to obey the “general will” because in doing so he directly obeys
his own will. The existence of the State is for the protection of freedom and equality. The state
and the laws made by it both are subject to general will which creates the state. If the
government and laws do not conform to general will, they are to be overthrown.

In brief Rousseau lays emphasis of the community and departs from Locke who laid emphasis on
the individual. He is in favour of people’s sovereignty. His natural law theory stands for the
freedom and equality of men.

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