INTRODUCTION
Natural law theory is one of the oldest theories among all the theories. Thus these laws are popularly said to be god made laws. It is said to be emanated from supreme source as observed by many jurist and philosophers. Legal thinkers have expressed diverse views on behalf of natural law. Natural law philosophy dominated the Greece during 5th century BC when it was believed it was eternal to man. Sophist calls it as an order of things embodies reason.
Natural law theory is a philosophical and legal belief that all humans are governed by basic innate laws, or laws of nature, which are separate and distinct from laws which are legislated. Legislated laws are sometimes referred to as “positive laws” in the framework of natural law theory, to make a clear distinction between natural and social laws. This theory has heavily influenced the laws and governments of many nations, including England and the United States, and it is also reflected in publications like the Universal Declaration of Human Rights. The origins of natural law theory lie in Ancient Greece. Many Greek philosophers discussed and codified the concept of natural law, and it played an important role in Greek government
Later philosophers such as St. Thomas Aquinas, Thomas Hobbes, and John Locke built on the work of the Greeks in natural law theory treatises of their own. Many of these philosophers used natural law as a framework for criticizing and reforming positive laws, arguing that positive laws which are unjust principles of natural law are legally wanting. The entire history of natural law reveals an attempt by the jurists to provide the concept and contents of natural law in human existence. There are numerous branches of this theory, some of which are quite complex. Many of these branches use natural law as a framework for discussing positive law, and some of these branches are actually built into legal systems. In England, for example, members of parliament may appeal
to natural law theory in settling disputes, in the form of the Fundamental Laws of England, a series of basic rights set out by William Blackstone in the 1760s. At the outset, it is important to distinguish two kinds of theory that go by the name of natural law. The first is a theory of morality that is roughly characterized by the following theses. 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. 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" 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.
Development of natural law theory:A brief discussion on natural law theory shall be presented in the historical order to give an idea of the various ideologies that it tried to establish from time to time and its effect on law. Natural law theories may be broadly divided into four classes:a) Ancient period b) Medieval period c) Period of renaissance d) Modern period
a) Ancient Period:The concept of natural law theory was developed by Greek philosophers around 4th century BC and laid down the essential features. Heraclitus:Heraclitus was the first Greek Philosopher who pointed three main characteristics of natural law namely, destiny, order and reason. He stated that nature is not scattered heap of things but there is a definite relation between things and a definite order and rhythm of events. According to him “reason” is one of the essential elements of the natural law. The instability and frequent changes in the early small states of Greece made legal philosophers to think that law was meant to serve the interest of those who were in power and the people are continually struggling for better life. This unstable political condition gave birth to idea of natural law. Socrates
Socrates said that like natural physical law there is a natural law. Man possesses insight which reveals to him the goodness and badness of things and makes him to know the absolute and eternal moral rules. This human insight is the basis to judge the law. Socrates did not say if the positive law is not in conformity with moral law it would be disobeyed. According to him it was rather appeal of insight to obey it and perhaps that was why he preferred to drink poison in obeyance to law than to run away from the prison. This theory was a plea for security and stability which was one of the principle needs of the age. His people Plato supported the same theory but it is in Aristotle that we find a proper elaboration of the theory. Aristotle According to him man is a part of nature in two ways first he is the part of the creature of god and second he posses active reason by which he can shape his will. By his reason men can discovered the eternal principles of justice the men‟s region being the part of nature the law discovered by reason is called natural justice. Aristotle defines natural justice as that which everywhere has the same force and that not exist by the people thinking this or that. So far as its relation which positive law or legal justice is concern, he said that legal justice in that which is originally indifferent but when it has been laid down is not indifferent. Plato Socrates disciple plato carried further the natural law theory further through his concept of ideal state which he termed as republic. He contented that only intelligent and worthy person should be king. He argued that justice lies in ordinating means life through reason and wisdom and motivating him to control his passion and desires. In his republic Plato emphasize the need for perfect division of labour and held that each men oath to do his work which he is called upon by his capacities. According to plato law of states are a pale shadow of an absolute idea of an perfect laws against which man made law may be measured.
Medieval Period This period starts from 12th century to mid 14th century in the European history. This period was dominated by Ecclesiastical doctrines which the Christian fathers propagated for establishment of church over the states. The Christian saints especially Ambrose, St. Augustine and Gregory propagated a view that divine law was superior to all other laws. According to them all laws are either divine or human. St. Thomas Aquinas defined the law as “an ordinance of reason for the common good made by him who has the care of the community and promulgated through reason” he classified law as:- i) Law of God or external law, ii) Natural law revealed through reason, iii) Divine law or law of scriptures, iv) Human laws which we now called Positive law.
Period of Renaissance This period in the history of development of natural law may also be called the modern classical era which is marked by rationalism and emergence of new ideas in different fields of knowledge. General awakening among the masses coupled with new discoveries of science during the 14th and 15th centuries shattered the foundation of the established values. The natural law theory propounded by Hugo Grotious, Locke and Rousseau revolutionised the existing institutions and held that social contract was the basis of the society.
Modern Period The natural law theory received a set back in the wake of 19th century pragmatism. The profounder of analytical positivism, notably Bentham and Austin rejected natural law on the ground that it was ambiguous and misleading. Bentham called it a simple nonsense since absolute equality and absolute liberty were repugnant to the existence of the state. The doctrines propagated by Austin and Bentham completely divorced morality from law. All these developments shattered the very foundation of the natural law theory in 19th century. Latter in the 21st century there was revival of natural law school where jurist like Stammler, Fuller and Finnis had made their contribution towers the revival of this school.
Natural Law theory and its influence in Indian laws relating to Fundamental rights { Article 14,19 and 21} and case laws relating to it:In Indian laws especially in Indian constitution there has been a largely impact of natural law theory. The articles like Article 14,19and 21 has been widen widely interpreted in the Indian scenario especially by the Indian judiciary. This could be found through the case laws In the case of Air India V/S Nargis Mirza the Supreme Court had struck down the Air India and Indian Airlines regulations on the retirement and pregnancy bar on the services of airhostess as unconstitutional on the ground that the regulations were arbitrary and unconstitutional under Article 14 of the Indian constitution. Now if one analyzes Stammler‟s four point principle with special reference to “principles of respect” : 1) the content of the person‟s volition must not be against the arbitrary will of another. Thus in this case the natural law theory has been applied by Indian Judiciary.
In the case of Maneka Gandhi V/S Union of India the meaning and content life and personal liberty under article 21 of Indian constitution came up for consideration and the supreme court held that the law established by the state should be just fair and reasonable . If one analyses the judgement one would find reference of LOCKE‟S theory whereby the natural rights of man such as right to life, liberity and property remained with him. So in Meneka Gandhi case also the natural law theory principles could be evolved. In case of Indian Express Newspaper V/S Union of India the theory of Rousseau in which he mentioned of freedom and liberity (freedom of speech and expression) has been applied, the Rousseau‟s theory of freedom of speech and expression was said to be natural right of every citizen by the Supreme court which is also been conferred upon under Article 19 of Indian constitution, wherein the freedom of speech and expression is said to be among the basic right of a human being to live in a society with dignity. To guarantee and promote fundamental rights and freedoms of the citizens and the respect for the principles of the democratic state based on rule of law. The popular Habeas Corpus case ADM Jabalpur V/S Shivakant Shukla is one of the important cases when it comes to rule of law. In this case the question was whether there was any rule of law in india apart from article 21. This was in context of suspension of enforcement of Art. 14, 21 and 22 during the proclamation of emergency. The answer is even in absence of article 21 of constitution the right to life and liberty of a person could not be deprived without authority of law. Without such sanity of life and liberty the distinction between lawless society and one governed by laws would cease to have meaning. Thus in this case Stammler‟s four point principle with special reference to “principles of respect” : 1) the content of the person‟s volition must not be against the arbitrary will of another. Thus in this case the natural law theory has been applied by Indian Judiciary. Moreover the fundamental rights conferred under Indian constitution have a large base in natural law theory. Almost all the fundamental rights conferred under Indian constitution relates to natural law as all the fundamental right are the basic rights of a human being which the natural law theory tries to confer upon the society since age of Greeks. All the thinking of those theorists under natural law theory have influenced Indian laws to a large extent, not only fundamental right but even many more provisions under Indian constitution are influenced by the natural law theory.
Criticism:The natural law is based on reason, law could not be based only on reason but instead legislature and other source should also be considered. The tradition, customs moral values, judge made laws, society also should be taken into account which is not emphasised in natural law theory. During the Medieval Period wherein church was the absolute to make rules or law whereby they said that Law is divine and made by God himself is not acceptable to many theorists according to medieval period theorist the church made laws are supreme and laws are Law of God or external law divine law or law of scriptures is not justified as those era Church tried dominating the whole of Europe saying the supremacy of law rather it is made by the Church fathers and it may be called as law made by fathers. Although law may be of a divine origin but all laws in the society could not be made by divine, even society makes law by its customs and traditions. As Thomas Aquinas said that law is a law of God or eternal law but we see the legal implications in modern world the God made laws although playing an important role in legal system but it is not extensive as he have failed to give light on the scope of modern scenario where the Judge made law, customary laws, king made laws has its own role to play. Thomas Hobbes natural law theory of self-preservation of person and property and his saying of endowing the rights to absolute authority is not justified as we had seen in the past events that endowing the absolute power to authority leaves peoples in tyranny or monarchy where the absolute power had spoiled many societies in the history and if it is implied in the present day the same situation may replay. The monarch may exploit the society for his selfish needs. Thus Thomas Aquinas saying of giving absolute power is not much applicable in the modern society. As modern society needs everyone to be equal wherein giving absolute power to some authority may create chaos in the society. It may also lead to revolution as we have seen that after any vesting of absolute power to any authority the authority tries to exploit the subjects thus the revolution starts among the subjects to being down the absoluteness of power vested in the authority.
For eg:- In India the theory was applied in the old age wherein the poor farmers took shelter for protection under the Jamindars to escape from being killed or exploited by others. The Jamindars as time passed became very powerful and they became the absolute power authority as the absolute rights of the famers are being vested in them. Jaminders had started to exploit the poor farmers and took away land and amenities leaving nothing to them but to get more exploited in hands of those Jaminders. Thus then the revolution against the Jaminders had started wherein all the poor farmers being exhausted of all the atrocities by those Jamindars came along. They tried to take back their rights which were endowed to the Jaminders for their protection. Thus it is evident from the history that giving absolute power to an authority results in being exploited by that authority. So we can say that Thomas Hobbes is not justified in saying of endowing absolute power to an authority which may lead to abuse of power by that authority. Indian constitution provides for emergency provisions wherein Fundamental rights are being curtailed. Fundamental rights being the natural rights or the most essential rights for human existence like freedom of speech and expression and many other rights being curtailed. Thus sometimes the theory of natural law is being denied as for the wellbeing of the society. Other than the above rights even right to life is being the most essential right as natural law is infringed by way of Special power for armed forces(Special power)Act 1958. Which depicts that natural law theories are not excusive but some act should be done against it for the welfare of the society.
Conclusion Apart from its criticism the use of natural law has been prevalent since ages, even in the present legal system the natural law is used extensively. The modern judicial system have been founded on the British Pattern the fine principles of equality, justice and good conscience and natural justice occupy an importance in Indian law. The higher values of universal validity, righteousness, duty, service to mankind, sacrifice, non-violence etc were already incorporated in ancient legal system . The principles of natural law are embodied in dharma referred to duties of man towards gods, sages, man and lower animals and creatures. It has been characterised as a belief in conservation of moral values. During the medieval period and British period in India natural law found its expression in religious preaching of Ramanuja, Sankara, nanak, swami Ramakrishna etc. During the Mughal period there was a temporary clash between the philosophies but after British invasion of India they tried to imply their laws over here, they started codification of laws denying the supremacy of old Indian laws. As due to long rule of British in india and incorporation of their rules in here certain principles of English Natural law found its place in Indian laws. The principle of natural justice, the doctrine of bias, judicial review, reasoned decision and many other precepts of administrative laws are based on natural law. It is also finds a prominent place in Directive principles of state policy and the fundamental right under Indian constitution in which various rights and duties are put up by the framers. The principles against double jeopardy and prohibition against self-incrimination embodies the principles if natural law theory. In various landmark judgement delivered by Supreme Court of India the Supreme Court sleeked the help of Natural Law theory. The principle of natural justice was earlier confined to only judicial and quasi-judicial enquires and did not extent to administrative actions. But with the decision in Meneka Gandhi‟s case the scope of natural justice extends to administrative actions. It is for the attainment of justice with regard to administrative functions.
The legal Administrative Tribunals, Family Courts, Consumer Redressal, Lok adalats, Human right commission, women‟s commission etc. Has been introduced by Indian legal system to provide social justice and speedy relief to aggrieved persons against injustices. The Supreme court contribution to human right jurisprudence though judicial activism and public interest litigation. These new developments is evident of the fact that principles of natural law and justice embody higher values of life, liberty, equality and justice have gained increasing importance in Indian legal system. Thus we can say that although the theory of natural law is said to be vague and sometimes irrational but in Indian legal system the implication of Natural law theory has a great role to play.
Refrences Books 1) Jurisprudence, Fifth Edition- By RWM Dias. 2) The constitutional law of india- By Dr. JN Pandey 3) Jurisprudence Legal Theory- By Mani Tripathi 4) The constitution of India- By MP Jain
Web Sources 1) Indiankanoon.com 2) legalservicesindia.com
