Sarthak Juris Project

SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN REFERENCE WITH NATURAL LAW

REASEARCH PAPER ON DEVELOPMENT OF JURISPRUDENCE JURISPRUDENCE IN MEDIEVA MEDIEVAL PERIOD

AUTHORED BY: SARTHAK MISHRA 3rd year Hidaya!""a# Nai$%a" La& U%i'er(iy


OBJECTIVES → →

To discuss the concept of Natural law. To discuss the various social contract propounded during the renaissance period with reference to its relation to the Natural Law.

RESEARCH METHODOLO)Y The method of research adopted in this project is secondary in nature. I have referred sources on the internet as well as books on social contract theories as well as that of jurisprudence for the clarification of the concepts of natural law and the social contract theories available in the university library besides adding my personal views and kno wledge of the topic.


INTRODUCTION In medieval texts the term “ jus naturale” can mean either natural law or natural right. “ Jus naturale” in the former sense and also lex naturalis, mean the universal and immutable law to which the laws of human legislators the customs of particular communities and the actions of individuals ought to conform.! It is e"uivalent to morality thought of as a system of law. It is called #natural# either $a% because it is taught by natural instinct i.e. some capacity innate in human beings or $b% because it is accessible to #natural reason# i.e. to personal reflection independent of any special revelation from &od such as the 'hristian faith claims to be and independent of the moral authority of other human beings( or for both reasons. This study of social and political states has linked philosophers across the ages. )ome "uestions that have occupied these philosophers* discussions are+ ,as there ever a period of time when men lived outside of societies and what was it like- ow did men escape that period and enter into a new time of societies- ,as it through force or mutual agreement- /nce a form of government is chosen or appointed who rules and is the rights of the individual preserved- )everal of these "uestions are addressed by both Thomas obbes in Leviathan and by 0ohn Locke in Two Treatises of &overnment.1 2oth obbes and Locke wrote of that period prior to the formation of societies referred to as the )tate of Nature when individuality rather than collectivity described mankind. 3ach also wrote of how mankind was able to leave the )tate of Nature and form civil societies. This transition from the )tate of Nature to government was considered a contract by both of these !4th century philosophers. obbes is traditionally labeled as having an alienation theory while Locke is considered as having an authori5ation theory. The fundamental difference between alienation and authori5ation theories concerns what happens to an individual*s rights once the contract is executed. 6lienation theory considers the contract as irrevocable. 0ean ampton wrote in obbes and the )ocial 'ontract Tradition that the individual7s rights are surrendered to the )overeign.8 The only justifiable way to retrieve one*s rights after the contract is initiated is to form a new contract. 6uthori5ation theory on the other hand considers the ! L 3/ ) T96:)) N ATURAL L AW  International 3ncyclopedia of the )ocial )ciences !;<=( N ATURAL L AW  'olumbia 3lectronic 3ncyclopedia ress. 1??4.

1 T/@6) /223) L EVIATHAN  ed. '.2. @acpherson New Aork >enguin 2ooks !;=B( 0/N L/'C3 T WO REATISES OF GOVERNMENT  ed. >eter Laslett 'ambridge :niversity >ress !;;!. T


contract as revocable. The individual as opposed to the )overeign retains the authority to terminate the contract at any time. ampton called it an agency theory retaining obbes* terms where the rights of each subject are only loaned to the )overeign.D The supremacy of the human lawgiver as posited by @achiavelli and in their diverse ways also by the Erench and 3nglish political theorists 0ean 2odin and Thomas obbes and others interwove in the following centuries with the continued insistence of ugo &rotius the Futch political and legal philosopher and others on the dominance of divine reason and humans7 participation in it by which they have access to the natural law. In the present project topic an attempt has been made to analy5e the natural law theory in accordance with the social contract theories propounded by obbes Locke and 9ousseau during the renaissance period.

8 036N 6@>T/N H OES AN! THE S O"IAL " ONTRA"T T RA!ITION  p. 8 'ambridge :niversity >ress !;=<. D I#i

%$ SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN REFERENCE WITH NATURAL LAW

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Natural law theory has been interpreted differently at different times depending on the needs of the developing legal thought. 2ut the greatest attribute of the natural law theory is its adaptability to meet new challenges of the transient society.B The exponents of natural law philosophy conceive that it is a law which is inherent in the nature of man and is independent of convention legislation or any other institutional devices. Fias and ughes describe natural law “as a law which derives its validity from its own inherent values differentiated by its living and organic properties from the law promulgated in advance by the )tate or its agenciesG. )imilarly according to 'ohen “natural law is not is not a body of actual enacted or interpreted law enforced by courts it is in fact a way of looking at things and a humanistic approach of judges and jurists. It embodies within it a host of ideals such as morality justice reason good conduct authority. )ome thinkers believe that these rules have a divine origin some modern sociological jurists and realists have sought resource to natural law to support their sociological ideology and the concept of law as a means to reconcile the conflicting interests of individuals in the societyG.< 6 widespread concept of political and legal thought denoting the aggregate or collection of principles rules laws and values dictated by human nature and therefore seemingly independent of concrete social conditions and the state. Natural law has always appeared as a value category relative to the legal order in force in a given political society and to the system of social relations consolidated by such a legal order. In views serving as apologetics this system and the existing laws are declared to be in conformity with natural law and natural justice( views calling for social transformations declare the society and its laws to be in contradiction with natural law and

B 9.,. @. FI6) L EGAL T HEORIES OF J URIS&RU!EN"E  Bth ed. 'ambridge :niversity >ress !;=4. < '/3N R EA!INGS IN J URIS&RU!EN"E AN! L EGAL & HILOSO&H'  p.<

justice. Furing the long history of natural law its content has varied according to the historical conditions as well as the social and political positions of its proponents. 4 The idea of natural law had already developed in ancient times especially in the classical world. It was used by the &reek )ophists and 6ristotle and was central to )toicism. 6long with civil and popular law 9oman jurists singled out natural law $jus naturale% as a reflection of the laws of nature and the natural order. 'icero stated that a law of the state that contradicted natural law could not be viewed as law. Furing the @iddle 6ges natural law was primarily theological in form. It was an integral part of religious doctrine+ in the teaching of Thomas 6"uinas for example natural law is the concrete expression of divine reason guiding the world and the basis of law created by the state. 3ven today the idea of natural law continues to be a part of the official theological and political doctrine of the 'atholic 'hurch. The idea of natural law had its greatest social influence in the !4th and !=th centuries as a fundamental ideological weapon in the struggle of the progressive forces of society against the feudal structure. Furing this time the principle of the natural law was utili5ed as a weapon to critici5e the feudal system prevalent in the society. The 1?th century has seen the soHcalled renaissance of natural law. This occurred because the transition of capitalism to the monopolistic and then the stateHmonopolistic stage re"uired the reevaluation of many legal institutions which both included natural law and was conducted with its aid. Increased consciousness of the working masses forced the bourgeois ideologists to seek popular slogans that could be directed against socialist ideas and the theory of natural law was convenient for these purposes for example the rejection of private property is declared to be a violation of the fundamental principles of natural law. Mai% C#ara+eri(i+( $- Na!ra" La& Pri%+i,"e $- J!ri(,r!de%+e

The phrase natural law7 has a flexible meaning. It has been interpreted to mean different things in its evolutionary history. owever it has been generally been considered as an ideal source of law with invariant contents. The chief characteristic features of natural law may be briefly stated as follows+ !. It is basically a priori method different from empirical method the former accepts things or conclusions in relation to a subject as they are without any need or en"uiry or observation 4 9.,. @. FI6) L EGAL T HEORIES OF J URIS&RU!EN"E  Dth ed. 'ambridge :niversity >ress !;4<.


while empirical or a posteriori approach tries to find out the causes and reasons in relation to the subjectHmatter. 1. It symboli5es physical law of nature based on moral ideals which has universal applicability at all places and times. 8. It has often been used either to defend a change or to maintain status "uo according to needs and re"uirement of the time. Eor example Locke used natural law as an instrument of change but obbes used it to maintain status "uo in the society. D. The concept of rule of law7 in 3ngland and India and due process7 concept in :)6 are essentially based on natural law philosophy. The content of natural law have varied from time to time according to the purpose for which it has been used and the function it is re"uired to perform to suit the needs of the time and circumstances. Therefore the evolution and development of natural law theory has been through various stages which may broadly be studied under the following heads+ !. 6ncient >eriod 1. @edieval >eriod 8. The period of 9enaissance In the next chapter the third phase i.e. the phase of renaissance would be discussed in terms of social contract theories and with reference to the natural law. This period saw the evolution of the social contract theories propounded mainly by obbes Locke 9ousseau and departure of their theories from the natural law principle.


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In the present chapter the social contract theories of obbes Locke and 9ousseau has been discussed separately with reference to the natural law principle and thereby showcasing it7s departure from the same. Na!ra" La& a%d #e H$11e(ia% S$+ia" C$%ra+

Eor centuries political philosophy has dealt with methods of making the legal ordering of society mirror what is moral and just. 'entral to this concept is whether or not laws in themselves are just and moral and how human beings with different traditions and experiences can arrive at moral laws reject immoral laws and discern between the two. This concept of natural law has been arrived at in different ways and in some sense Thomas obbes7 version of the social contract can be viewed not only as a competing version of natural law theory but the modernH day interpretation in most ,esternHstyle democracies as the basis for moral lawmaking. The concept of natural law is largely attributed to )t. Thomas 6"uinas a Fominican priest during the )cholastic era where the reintroduction of 6ristotelian philosophy to ,estern 'ivili5ation had become all the rage. This theory was undoubtedly borrowed from the &reeks themselves and most notably from 6ristotle7s discussion on the topic of goodness in the Nichomachean 3thics. 6"uinas borrowed 6ristotle7s understanding of goodness and happiness and incorporates it into 'atholic theology in the magnum opus )umma Theologicae. 6"uinas had made the argument in favor of natural law and had suggested the same being reflective of the eternal law itself. 6s the natural law is the inherent normative "uality in nature not only does 6"uinas claim that all m en are bound to it but by its very nature as a reflection of the eternal law it is both absolute and immutable.= This was an idea that obbes violently rejected. The first and most basic premise that obbes argues is the e"uality of man in his natural state and that from this natural state springs a constant state of warfare based on three motivators+ competition diffidence and glory. obbes states that there can never be law and without law there is nothing to contravene and therefore = ,6LT39 E6993LL A " OM&ANION TO THE S UMMA 'h. JJ Kol. III )heed  ,ard !;8;.


no peace. e argued that the only thing that can negate these motivators are fear of dying desire of goods and a hope to enjoy the fruits of one7s own labor. Thus he defined natural law as+ “6 law of nature is a precept or general rule found out by reason by which a m an is for bidden to do that which is destructive of his life or taken away the means of preserving the same( and to omit that by which he thinks it may be best preservedG.; This particular definition can be categori5ed into three percepts defining obbes concept of Natural Law. The first precept of obbes7 is that natural law becomes the opposite of the wild and untamed world of warfare that unrestricted exercise of the rights of nature permits as obbes observes( “that every man ought to endeavour peace as far as he has hope of obtaining it( and when he cannot obtain it that he may seek and use all help and advantages of war.!? The second precept of obbesian natural law suggests that individuals should be willing to lay down their natural rights in or der to achieve peace.!! Einally the third precept suggests that once these natural rights have been laid down for the sake of peace an expressed contract has to be made between mutually consenting people and the participating individuals are bound to honor the arrangement because without such a contract there would be no development in state of nature and thereby the state of war would persist. !1 De,ar!re -r$2 Na!ra" La& Pri%+i,"e $- T#$2a( A!i%a(

Thus obbes devises a theory of natural law that stands in sharp contrast to the former 6ristotelian forms of natural law expounded upon by 6"uinas and his successors. The points of departure has been discussed below.

; T/@6) /223) L EVIATHAN  p. ress /xford !;;<. !? I#i$ at p.

:nder former Thomistic norms for human motive happiness was the first and foremost goal whereas under obbes fear and selfHinterest were the primary motivators. Laws and justice were also points of contention as Thomistic natural law saw these as objective from the standpoint of &od obbes saw these as belonging to the entity of the state exclusively. Einally the origins of natural law stand in stark contrast for obbes removes and replaces the concept of &od as being advocated by the Thomistic norms with his concept of the absolute sovereign. Na!ra" La& a%d #e S$+ia" C$%ra+ #e$ry $- J$#% L$+4e

6ccording to Locke Natural law is “the law of nature is a declaration of &od*s will and a standard of right and wrong. It is a law that already governs the state of nature i.e. a preHsocial state in which all men are free and e"ual and in which they live together in peace. If men make promises to one another in the state of nature they must consider themselves bound by them *for truth and keeping faith belong to men as men and not as members of society.* It is likewise according to this law and prior to any positive civil laws that each man*s private property is determined. the law of nature sets bounds to what each man is allowed to appropriate and keep for himself. )ince within these bounds a person*s *right and convenience* go together there can be little room for "uarrels about property. Eurther for Locke &od*s purpose in the creation man was to *put him under strong obligations of necessity convenience and inclination to drive him into society as well as to fit him with understanding and language to continue and enjoy it. In general political power for Locke is justified only in so far as it preserves men*s natural rights especially those of life and property. &overnment is thus limited both by natural law and by men*s rights and these two came to be almost identical for Locke. It can be seen that the part played by natural law in Locke*s political theory is indeed fundamental. It is because he believes this law to be the law of the state of nature and this state of nature to be not altogether annulled when it is superseded by men*s life in society that for him natural law remains valid in society and in fact sets limits to political government. :nlike obbes Locke have taken a slightly favoring stand for the natural law theory considering it to be rational aspect of the human mind.


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Traditionally moral judgments in opposition to prevailing norms or law were made within the framework either of revelation or of that most rubberHlike conceptual device natural law. 2ut the creed of the )avoyard vicar clearly indicated 9ousseau*s reluctance to accept the authority of a 2ible whose interpretation was so vehemently disputed on all sides. This rejection would seem to have left him no option but recourse to some version of natural law theory. In its most common and general form this theory postulated a law known by reason and morally obliging man on the ultimate authority of a &od also known by reason. R$!((ea!5( Crii+i(2 $- H$11e( a%d L$+4e

In 9ousseau7s state of nature the primitive man was a creature of isolation seldom coming into contact with his fellows. This description is corollary of his far more radical position that man is not naturally i.e. of necessity a rational animal. This was in contradiction to the theory propounded by obbes as he had previously denied man7s sociality but not his rationality. 9ousseau also critici5ed the theory propounded by Locke that provided for a natural and language less thought with a conventional vocabulary and syntax extrinsically added

to

antecedent and independent thought processes. e rejected this dualism insisting that only the most elementary kind of thought is possible without words to solidify abstract ideas and relations. Though man has the potential for higher thought without language this capacity can never be reali5ed. R$!((ea!5( Re6e+i$% $- Na!ra" La& Pri%+i,"e

There are other reasons which some have seen as evidence that 9ousseau rejected natural law. In his first version of the )ocial 'ontract there is a chapter which contains a criti"ue of natural law as expounded by Fiderot in an article for the 3ncyclopedia. Neither the idea of &od nor of natural law is innate since both have to be taught to men. It may be a law of reason but the reason sufficient to apprehend it develops only after the rise of those passions which render its dictates impotent!8. This contention reflects 9ousseau*s !8 T HE & OLITI"AL W RITINGS OF J EAN J A"(UES ROUSSEAU  p. DD; vol. I ed. '. 3. Kaughan /xford :niversity >ress /xford !;<1


belief that the unfolding of man*s rational capacities is a result of a prior growth of the passions. 6ccording to him There is a natural law but in order for it to be operative certain conditions must be fulfilled( in the absence of these conditions it is not obligatory. This idea of a conditional natural law is by itself enough to differentiate 9ousseau*s version from the absolutist versions of tradition. is reason for making legitimate laws conditional constitutes the very heart of the )ocial 'ontract. 2ut unfortunately most if not all states from 9ousseau*s point of view are far from ideal and laws bear une"ually on subjects. 6ccording to his analysis in the )ocial 'ontract this constitutes at least a partial reconstitution of the state of nature and the only obligation subjects have toward rulers is prudential. Thus from the moral point of view subjects are in a state of nature visHaHvis their rulers. In the absence of rules determined by the collective decision of the people the individual is thrown back on his own resources( he must be his own general will. The selfHimposed law which gives a moral dimension to an individual is not a product of his particular will i.e. that will which looks to his advantage but of his general will i.e. that will which never concedes him a right over others he would not willingly concede others over himself. This principle of generality and e"uality responds to what otherwise is known as natural law and goes to the very roots of what 9ousseau means by morality. Thus evident that 9ousseau believed in natural law though his version significantly differs from traditional accounts. It is also clear that ultimately he linked the fate of morality with the existence of &od.


CONCLUSION :nder the leadership of anthropologists analyses of human beings7 internal process of response to the exigencies of existence within a particular cultureMto conscious and subconscious psychic drives and motivationsMdeeply affected the jurisprudential study of law and society and helped to bring naturalHlaw thinking to a !;thHcentury nadir. In the anthropologist 2ronisaw @alinowski7s most mature statement on the matter he distinguished four major meanings of the word la) as important in understanding the growth of civili5ation. They included “laws of natureG in the scientific sense of rules governing humans7 conscious adaptations to the environment( rules of “efficiencyG and “convenienceG according to which the group lives( rules for conflict adjustment( and rules about enforcement of the last two. No conception of natural law which had engaged earlier thinkers for two millennia and more was included. In addition the vehement criticism of the natural law principles by the social contractualists ignited the gradual downfall of the natural law principle that had covered up the area of the legal for well a period of more than seventeen centuries. This process was sped up by the emergence of new schools of jurisprudence including 6nalytical )chool of Law istorical )chool of Law and )ociological school of Law.


BIBLIO)RAPHY T HE & OLITI"AL W RITINGS OF J EAN J A"(UES ROUSSEAU  ed. '. 3. Kaughan /xford :niversity >ress /xford $vol. I !;<1%. T/@6) /223) L EVIATHAN  /xford :niversity >ress /xford $!;;<%. ,6LT39 E6993LL  A " OM&ANION TO THE S UMMA )heed  ,ard $Kol. III !;8;%. 9.,. @. FI6) L EGAL T HEORIES OF J URIS&RU!EN"E  'ambridge :niversity >ress $Bth ed. !;=4%. th '/3N R EA!INGS IN J URIS&RU!EN"E AN! L EGAL & HILOSO&H'  arvard :niversity press $B

ed.!;B!%. 9.,. @. FI6) L EGAL T HEORIES OF J URIS&RU!EN"E  'ambridge :niversity >ress $Dth ed. !;4<%.

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