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Objectives After reading this unit the student should be able to: Understand various theories of natural law Understand intersection between law and morals Explain historical development of natural law theory Debate between natural law theory and legal positivism Evaluate the contribution of natural law thinking Structure 1.1 Introduction 1.2 Meaning of Natural Law 1.3 Ancient theories 1.4 Medieval theories 1.5 Renaissance theories 1.6 Natural law and Social Contract theories 1.7 Immanuel Kant’s legal philosophy 1.8 Fall of Natural Law theory in 19 th century 1.9 Revival of Natural law theory in 20th^ century 1.10 Resurgence of Natural Law – Fuller 1.11 Summary 1.12 Self-Assessment Questions 1.13 Further Readings
the idea we find in Socrates. He said that like ‘natural physical law’ there is a ‘natural moral law’. Man possesses ‘insight’ and this ‘insight’ reveals to him the goodness and badness of things and makes him know the absolute and eternal moral rules. This human insight is the basis to judge the law. Socrates did not say that if the positive law is not in conformity with moral law it would be disobeyed. Perhaps that was why he preferred to drink poison in obedience to law than to run away from the prison. Plato (429 - 348 B.C.) supported the same theory. In Plato’s philosophy, a clear cut distinction is there between his thinking about justice and his ideas about law. His approach to justice was metaphysical based on divine inspiration. This confounded law with religion and morality, and made law as a matter of faith and belief. Justice meant in Plato’s view that a man should do his work in the station of life to which he was called by his capacities. Every member of society has his specific functions and should confine his activity to the proper discharge of these functions. Some people have the power of command, the capacity to govern, others are capable of helping those in power to achieve their ends, as subordinate members of the government. Plato says “to mind one’s own business and not to be meddlesome is justice”. Plato realised that even in his ideal commonwealth disputes will arise which must be decided by the public authorities. It is the theory of the Republic that in deciding such controversies, the judges of the state should have a large amount of discretion. Plato does not wish them to be bound by fixed and rigid rules embodied in a code of laws. The State of the Republic is an executive state, governed by the free intelligence of the best men rather than by the rule of law. According to Plato “Justice is to be administered without law”. The non-law state was upheld by him as the highest and most perfect type of government. Its effective operation required men of the highest wisdom and infallibility of judgment. It is in Aristotle (384-322 BC) that we find a proper and logical elaboration of the theory. According to him, man is a part of nature in two ways: first, he is the part of the creatures of God; and second, he possesses active reason by which he can shape his will. By his reason man can discover the eternal principles of justice. The man’s reason being the part of the nature, the law discovered by reason is called natural law. Natural law is inherent in the nature of man. As nature is common to all races and nations, natural law must be the same for all. Aristotle’s contributions to legal theory was considerable:
did not apply to the foreign settlers in Rome or to other parts of the Roman Empire. The Roman Praetors made use of the jus naturale as a universal law, to apply it to all non-Romans. They adopted the usages and customs which were commonly observed by different people and were consistent with moral reason and were also in consonance with rules of the jus naturale. Thus they developed a code of laws applicable to foreigners under the name of jus gentium. In later ages, the jus gentium was used to moderate the rigidity of the jus civile and convert it into a refined legal system, which became subsequently a model law for many legal systems of the world. Thus, Roman jurists used natural law to modify, to refine and to expand their laws. Cicero (104-43 B.C.) in his work De Legibus examined the basis of law. His major contribution to jurisprudence rests upon his concept of ‘nature’ as providing a source of rules by which man ought to live. To him law is the highest reason implanted in man. The highest form of reason may be discovered in nature. Law is the standard by which justice and injustice may be measured. Cicero stated: “True law is right reason in agreement with the nature, it is of universal application, unchanging and everlasting.... It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely.... God is the author of this law, its promulgator and its enforcing judge”. According to Cicero, natural law is universal and immutable, it is higher law and is discoverable by reason. 1.3 MEDIEVAL THEORIES Catholic philosophers and theologians of the middle ages gave a new theory of natural law. When Rome lost its supremacy, the Christian church began to assert its power. It became the universal religion of Europe and was organized on a hierarchical pattern with the Pope as its head. The Religious authorities began to claim supremacy over the political authorities and asserted that the Christian teaching was the embodiment of the supreme law. During the medieval period, natural law was given religious colour. St.Augustine (354-430 A.D.) asserted that a king made law could be disregarded if it was contrary to the law of God. The Church as the exponent of divine law could interfere with and override the state. It implied that the ultimate interpreter of the law was the Pope, and not the Emperor. This led to a struggle for power between the Church and the state. As both the State and the church invoked the natural law to support their assertions, it marked a period of authority for natural law. St.Augustine believed that divine wisdom was revealed in the scriptures. The moral precepts of Holy Scriptures were the precepts of the natural law. According to him, man is governed by two laws, the law of nature and custom. The law of nature contained in the scriptures and the gospel. He said that natural law overrides customs and constitutions. Customs and constitutions which contradict natural law are void and of no effect. He asked ‘what are States without justice, robber bands enlarged? St.Thomas Acquinas (1225-1274) propounded the scholastic theory of law in the middle of the 13th century. He defined law as “an ordinance of reason for the common good made by him who has the care of the community and promulgated”. His theory may be summarized thus:
the world is ruled by divine providence and therefore the divine law is supreme in the world; a part of the divine law is given by God himself to man in the Scriptures; and they shall not be transgressed by any man made law; and another part of divine law is revealed in the inherent reason of man and is called the natural law. He asserted the supreme authority of the church as the custodian and interpreter of the divine laws. Acquina’s four categories of Law: i) Lex aeterna (eternal law): It is divine reason known only to God. It is God’s plan for the universe. It is absolutely perfect. ii) Lex naturalis (Natural law): Participation of the eternal law in rational creatures. It is discoverable by human reason. iii) Lex divina (Divine Law): It is God’s positive law for for mankind. It is revealed in the Scriptures like Ten Commandments. iv) Lex humana (Human Law): It is humanly posited law. Enacted for the common good. Supported by reason. It provides the details to solve day to day problems. According to Acquinas, human law or positive law must remain within the limits of that of which it is a part. He pleaded for establishing the authority of the church over the law. In the words of Acquinas, ‘The eternal law is the plan of Divine providence and, therefore, is absolutely perfect. The natural law on the other hand, is only imprint of the eternal law which is finite and cannot be absolutely perfect. The positive law or the human law is really an implementation of natural law and varies with changing circumstances and conditions of social life. In the controversy for power, the State, which was organized on a feudal foundation conceded the right of private property to be a natural and inviolable right of the acquirer, but the Catholic church refused to recognize the private property to be natural right. This gave an impetus to the State over the Church, and consequently positive law came to prevail over religion and compelled divine law or natural law to recede to the background of social life. The position became stronger for positive law with the revolutions marked by the renaissance and reformation, which brought forth the spiritual emancipation of the individual and the emergence of the modern state. The individual wanted protection of their life and liberty. The Protestants denied authority of the church to expound the law of God. In this new set up the theory of natural law came again to prominence but was set on a new basis. It was no more a divine law with spiritual authority, it became the law of the reason with intellectual authority. 1.4 RENAISSANCE THEORIES This period marks a general awakening and resurgence of new ideas in all the fields of knowledge. Rationalism became the creed of the age. The development in the field of commerce created new classes in the society which wanted more protection from the state. Colonization created a rivalry among the states. It gave birth to the conception of nationalization.
to obey a government set up by themselves to guarantee their life, liberty and property, and it was such agreement that gave rise to the organization of State. Social contract theory implies that the State is creation of the consensus of the people and the source of the political power is the will of the people. Natural law has been used to justify revolutions on the ground that the law infringed individual’s natural rights. 1.7 IMMANUEL KANT’S LEGAL PHILOSOPHY The close of the 18th century and the beginning of the 19th century was the watershed of the natural law philosophy. The period produced two greatest legal thinkers -Immanuel Kant and Jeremy Bentham. While Kant was the staunch supporter of natural law theory Bentham was the founder of analytical positivism. Kant conceived the law of nature as a principle of human reason; a kind of rational system capable of rational deductions on ethical lines. Such a pure reason cannot be derived from empirical observations or by a process of induction. According to Kant, the law of reason is purely logical category not influenced by external factors or ends or empirical choices or experiences. Law of reason is a moral imperative directing the human being to do what is morally good for all at all times and places irrespective of ends, considerations or selfish desires. Kant made a distinction between hypothetical and categorical imperatives. He said that all imperatives command human will either hypothetically or categorically. Hypothetical imperatives present the practical necessity of possible action as a means to achieve something which one desires. Thus, hypothetical imperative is selfish, interest oriented and can never be a universal imperative. The categorical imperative would be one which presented an action as of itself objectively necessary without any particular regard. It is to be done for its own sake because it is a dictate of pure reason. It is obligatory and has to be complied with in all times and all places. Kant’s test of rationality of an imperative is its universality. Accordingly he gave the content of categorical imperative as ‘Act in such a way that maxim of your action can be made the maxim of a general action.’ 1.8 FALL OF NATURAL LAW THEORY IN 19TH CENTURY Two principal developments were responsible for the decline of natural law philosophy in 19th century. They are: the rise of legal positivism and non-cognitivism in ethics. In legal theory the overall hegemony of natural law had been overshadowed by Montesquieu’s Esprit Des Lois. He emphasized that the efficacy of a law must be tested by its effects in societies. He conceived law to represent the relations of men in a society and therefore influenced by the circumstances and conditions of the society such as climate, soil, environment, religion, occupation, customs, commerce, riches of the people, etc. It was David Hume in his ‘Treatise of Human Nature’ gave a decisive blow to the natural law philosophy which was based on the faculty of reason in man. According to Hume, reason cannot dictate a course of action. He conceived the moral sense as the force that induces right conduct. Law is to prescribe right conduct. Law must therefore be the formulation of moral sense. According to Hume, the moral sense is determined by popular pleasure and pain. That action is moral which causes pleasure in others, that action is immoral which causes pain in
others. This conception of moral sense is linked not with justice, but on popular approval. It upholds public interest. In the 19th century the popularity of natural law theories suffered a decline. The historical and analytical approaches to the study of law were more realistic and attracted the jurists. 19th Century legal thinking gave prominence to certainty in law. The scientific outlook that dominated the era turned the attention to analytical positivism. In the changed climate of thought it became difficult for natural law theories to survive. Thus 19th century was, in general, hostile to the natural law theories. However, towards the end of the 19th century a revival of natural law theory took place. 1.9 REVIVAL OF NATURAL LAW THEORY IN 20TH CENTURY With the dawn of the 20th century a reaction set in, and the search for an ideal justice commenced again. This time it is recognized that natural law can supply only a framework of principles, and it must be left to the positive laws to supply the flesh and blood to the legal system. The emergence of ideologies such as Fascism and Nazism caused development of counter ideologies and contributed to the revival of natural law philosophy. Stammler and Kohler hold important place among the philosophers who supported natural law theory in the 20th century. Stammler says that all positive law is an attempt at just law and what is just law or justice is a harmony of wills or purposes within the framework of the social life. He says law is valid even if it does not conform to this ‘just’ but attempt should be made to bring it near its aim. This concept has been called by Stammler as ‘natural law with a variable content.’ Kohler says that legal interpretation should not be materialistic. He says that there is no eternal law. Taking the requirements of culture into consideration law can serve its purpose better. Kohler is convinced of Stammler’s theory of ‘natural law with variable content’. He says ‘there is no eternal law. The law that is suitable for one period is not so for another period, we can only strive every culture with its corresponding system of law.’ The approaches of Stammler and Kohler are very scientific and logical and free from the rigid and a priori principles. 1.10 RESURGENCE OF NATURAL LAW - FULLER Fuller makes attempts to argue against the separation of law and morals. In his ‘The Morality of law’ he expounded the relation between law and morality. He regards law as a purposive system and its particular purpose being that subjecting human conduct to the control and guidance of legal rules. According to Fuller, law has external and internal morality. External morality is ‘morality of aspiration’. Inner morality comprising of ‘irreducible minimum requirements’ with which a law has to comply. He lays down eight requirements of inner morality of law which legal system must comply if it is to succeed as law. They are: 1) there must be rules 2) the rules must be published 3) rules must be given prospective operation 4) rules must be understandable 5) rules must not be contradictory 6) rules must not require conduct that
Objectives After going through this unit you should be able to: Use the term positivism with caution Understand meanings of the term positivism Explain positive theories of Bentham and Austin Elaborate essentials of Austin’s definition of law Discuss the merits and demerits of analytical positivism Understand the relationship between legal positivism and natural law theory Struture 2.1 Introduction 2.2 Meaning of Positivism 2.3 Bentham’s postivism 2.4 Austin’s positivism 2.5 General and Particular Jurisprudence 2.6 Imperative Theory of Law 2.7 Command 2.8 Sovereignty 2.9 Criticism of Austin’s theory of Sovereignty 2.10 The problem of locating sovereign under Modern Constitutions 2.11 Sanction 2.12 General Criticism of Austin’s theory 2.13 Summary 2.14 Self-Assessment Questions 2.15 Further Readings
In the legal literature of the 20 th century the expression ‘legal positivism’ has been more and more frequently used. Unfortunately it has no generally recognised meaning. Considerable confusion has ensued from its being used in several different senses and from lack of distinction between these. In its and traditional connotation the term ‘positivism’ signifies a view on the nature of law that all law is positive in the sense of being the expression of the will of a supreme authority, to the exclusion of the supposed law of nature. Most often the characteristic feature of legal positivism is said to be that it separates law and morals, meaning that the rules of law are not fundamentally moral rules. Austin’s theory is a clear case of legal positivism in this sense. Though Austin’s theory has always carried the name of analytical jurisprudence now it is often referred to as a kind of legal positivism. Since Austin regarded the rules of law as commands of the actual holders of power, he could not reasonably maintain that they necessarily had a moral content. Salmond speaks of ‘positivist law’ meaning the interpretation of law by writers who have more or less accepted positivist philosophy derived from August Comte. C.K.Allen seems to make use of the term only with regard to Kelsen, whose theory is called positivistic because it is concerned exclusively with the actual and not with ideal law. Roscoe Pound mentions only the followers of August Comte as ‘positivists’. Jerome Hall says, the heart of legal positivism and its great contribution to practical life is ‘its separation of positive law from morals, mores, religion, fashion, the bye-laws of sub-groups and so on’ and its corollary is ‘the sanctioned command of a determinate sovereign or an equivalent formula’. The same separation of law from other systems of rules is found in the theory of Hans Kelsen. But the separation of law and morals is not bound up with either Austin’s or Kelsen’s view on the nature of law. An author who holds a different theory on the nature of law may very will be a positivist in the sense that he declines regarding a moral element as necessarily belonging to the concept of law. 2.2. MEANING OF POSITIVISM Prof.H.L.A.Hart enumerated five separate meanings of the expression ‘positivism’ i) Laws are commands (This meaning is associated with the two founders of British positivism – Bentham and Austin) ii) The analysis of legal concepts is worth pursuing and distinct from sociological and historical inquiries iii) Decisions can be deduced logically from predetermined rules without recourse to social aims, policy or morality. iv) Moral judgments cannot be established or defended by rational argument, evidence or any other proof.
Austin under the title ‘Lectures on Jurisprudence’. As Sarah Austin observed in her preface to the book his early life in the army though short appears to have had its own impact on Austin’s approach to jurisprudence. Austin defines jurisprudence as the philosophy of positive law. Austin meant by positive law the law laid down by a determinate human superior or sovereign for the purpose of regulating the conduct of his subjects. That is, Austin emphasized that jurisprudence deals not with every rule of action but only those rules, which are laws properly so called or what are called the laws of lawyers and law courts. By this emphasis on positive law, Austin wanted to determine the true scope and province of jurisprudence. John Austin was born in 1790. At the age of sixteen he joined the army and served as lieutenant upto 1812. Then he resigned and began studying law. In 1818, he was called to the Bar. He practised for seven years without success. In 1826, when the University of London was founded, Austin was appointed as Professor of Jurisprudence. He delivered lectures there. First part of the lectures was published in 1822 under the title of ‘The Province of Jurisprudence Determined.’ The second edition of ‘The Province of Jurisprudence Determined’ was published by his wife in 1861. It cannot be denied that Austin took from Bentham the tool of analysis. 2.5 GENERAL AND PARTICULAR JURISPRUDENCE Austin refers to two aspects of jurisprudence, general and particular. By general jurisprudence, he means the philosophy of positive law and by particular jurisprudence he means the science of particular law or the science of any system of positive law prevailing in any country. General jurisprudence is concerned with the study of those fundamental principles which are common to the different systems of law prevailing in various countries. Particular jurisprudence is concerned with the underlying principles of the legal system of a particular country. Particular jurisprudence is the science of any actual system of law or of any portion of it. Austin while recognizing that every system has its specific and particular characteristic differences, yet he discovered certain common, similar general principles in all politically organized and developed or matured systems as distinguished from immature backward or crude systems. He describes these common basic laws and principles as ‘general jurisprudence’ as distinguished from specific local laws obtaining with in one particular legal system as ‘particular jurisprudence’. In this manner Austin classifies jurisprudence into two parts - general and particular jurisprudence. A legal system is the entire structure of laws in a political society. Every legal system may be found to rest on certain basic concepts and to contain a mass of working details. The working details may vary widely from system to system; but the basic concepts are common to all legal systems. For example, one legal system may provide that theft shall be punished with death, while another system may provide that it shall be punished with imprisonment for three years. Here the concept of theft being a punishable crime is common to both legal systems. One system may hold marriage to be a sacramentum and therefore not terminable by divorce, while another system may hold it to be a mere contract terminable by divorce; but a recognition of marriage as foundation for legitimacy of off-springs and for inheritance of property is common
to both. It may be found that certain legal concepts, as crime and punishment, right and property, are common to all legal systems. Such concepts are the basic elements of law. It is the province of jurisprudence to explore and explain such basic elements of law. That part of jurisprudence which deals with the basic elements of law, which are common to all legal systems is called General Jurisprudence. Particular jurisprudence can be described as a specific national jurisprudence which is distinct, different and separate from other legal systems. Particular jurisprudence is, therefore, the study of positive law of an individual legal system. Austin said: “Particular jurisprudence is the science of any actual system of law or any portion of it. The only practical jurisprudence is ‘Particular’. The proper subject of particular jurisprudence is concerned with specific state or national law or particular area of such state law.” Holland rejects Austinian division of jurisprudence into general and particular. According to him, science can never be particular. Assuming jurisprudence to be a science, he denies particularity to jurisprudence. Jurisprudence as a science should be treated as incapable of being divided into these two branches - general and particular. 2.6 IMPERATIVE THEORY OF LAW According to Austin, law in its most general and comprehensive sense means a rule laid down for the guidance of an intelligent being by an intelligent being having power over him. He said: “A law, in the most general and comprehensive acceptation in which the term, in its literal meaning, is employed, may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.” In this sense law may be classified as ‘laws improperly so called’ and ‘laws properly so called’. ‘Laws improperly so called’ comprise ‘Laws by analogy’ and ‘laws by metaphor’. ‘Laws by analogy are rules set out and enforced by mere opinion by an indeterminate body of men in regard to human conduct, such as the law of honour. Austin included under this heading much of what is usually termed ‘international law’. ‘Laws by metaphor’ are laws such as are observed by the lower animals, or laws determining the movements of inanimate bodies. Austin subdivided ‘laws properly socalled’ into laws set by God to men which are called the Divine Law, and laws set by men to men which are called Human Laws. Human Laws are again classified by Austin into two types: They are (i) laws set by political superiors and (ii) the laws set by others who are not political superiors. According to Austin the laws set by political superior are the laws in strict sense or the positive law. The laws set by person who are not political superiors are not laws strictu sensu. They are merely positive morality enforced by public opinion in any society. These rules of ‘positive morality’ are ‘positive’ because they are of human origin in contradistinction to those laws which are of Divine origin or the Divine Law and again these rules are called mere ‘morality’. According to Austin ‘Positive laws’ are the subject matter of jurisprudence.
makes a sovereign and law is merely what he commands. Sovereign cannot be limited by anything humane or divine. His power is absolute and illimitable. It appeared plainly that the sovereign power is as great as possibly men can be imagined to make it. It is thus clear that while Bodin’s sovereign was controlled at least by reason and divine laws, Hobbes sovereign was absolute and unbriddled. The high priest of sovereign power was, however, John Austin. Austin’s sovereign has two hall marks he is internally the repository of supreme authority and, externally he is totally independent. Austin combined both these notions in the oft-quoted definition. “If a determinate human superior, not in the habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society, including the superior, is a society political and independent….” By stating that the sovereign is a human superior, Austin excluded God as a repository of authority. Divine law is no law as it is not set and enforced by a human superior. The implications of ‘determinate’ superior are that Austin wants to keep out of purview vague and amorphous bodies like ‘community’ and public opinion. An individual like a monarch or a body of individuals like a Parliament can be sovereign but not an indeterminate body like ‘people’. Sometimes it is fashionable to proclaim that sovereignty rests with the people. Dicey attempted a distinction between legal sovereign and political sovereign. Parliament can be the legal sovereign. The political sovereign will be people themselves i.e., the electorate. This view, however, attractive it may sound, is not immune to criticism. It may be recalled that Austin located sovereignty in England partly in the electorate. Locating political sovereignty in the people is purposeless. What matter is legal sovereignty? If people are sovereign, who are the subjects? This objection can be get over by pointing out that the people as a collectivity are sovereign and that the people as individuals are subjects. However, people here means electorate and from the stand point of election, it would be unrealistic to make a distinction. As most democratic countries insist on adult franchise, the so called people consists of only the eligible voters. Not all these voters would vote at any particular elections. Out of these who have actually exercised franchise, the way the majority of them has voted would be decisive. Thus, in the, ultimate analysis, ‘people’ means only the majority of the eligible voters. The so called majority in reality a minority of total population and sometimes a minority of even the eligible voters. In a country like India, the electorate comes into play once in five years barring mid term polls. Exercise of sovereignty by the electorate once only in five years would not fit into Austin’s theory of sovereignty. Austin’s distinction between positive law and positive morality was that the former was set by a political superior and the latter was set by others who are not political superiors. In elaborating this notion he evolved his theory of sovereignty. According to Austin within a state there can be only one sovereign just as there cannot be two knives within a sheath. Sovereignty has a ‘positive mark’ and a ‘negative mark’. The former is that as determinate human superior should receive habitual obedience from the bulk of a given society, and the latter is that the superior is not in the habit of obedience to a like superior. The sovereign receives obedience
from his people. The obedience so received need not be from all the people all the time, it is only habitual obedience from the bulk of a majority of the people. Thus the sovereign is internally supreme. Externally, the sovereign does not obey any other sovereign; he is totally independent. Austin further lays down three chief characteristic features of sovereign authority. Sovereignty is unlimited, illimitable and indivisible. Sovereignty is unlimited: It extends to every person and thing situated within the territorial limits of a State. A sovereign can make any law. Sovereignty is Illimitable: Law is the command of a sovereign. There can be no de jure or legal limitations or de facto constraints on the exercise of that power. For instance, in specific cases no amount of application of force can secure total disobedience to law. Again the people can rebel against tyranny. But these limitations are intrinsic and not extrinsic. Austin went on to assert that a sovereign cannot command himself i.e., place himself under an obligation. The sovereign cannot be under a duty, since to be under a duty implies that there is another sovereign above the first who commands the duty and imposes a sanction; in which case the first is not sovereign. The power of sovereign is incapable of legal limitation Sovereignty is indivisible: According to Austin, the sovereign enjoys plenum of sovereign power without sharing it with anybody. Division of sovereign authority amounts to destruction of the power itself. According to Austin theory, there can be only one sovereign in the state, that is to say, one person, or the body of persons in whom the totality of sovereign power is vested. Sovereign power, in other words, is indivisible and cannot be shared between two or more persons or bodies of persons. The base of sovereignty is, according to Austin, the fact of obedience, which involves a relationship of sovereignty and subjection. Where there is no law there is no sovereign; where there is no sovereign there is no law. Law, is therefore, a command issued by a political superior to whom the majority of members of society are in the habit of obedience, and which is enforced by a threatened sanction. 2.9 CRITICISM OF AUSTIN’S THEORY OF SOVEREINGTY It has been questioned whether it is necessary to have sovereign in a State. A sovereign may be necessary because definition has made it so. In another sense the question is whether a sovereign is necessary as a practical matter. The short answer to the question is that there is no need for only one law making body, though in practice this might be convenient. Salmond readily concedes that Austin’s view that the sovereign must be determinate is correct. The repository of sovereign power should be ascertainable. But Austin’s assumption
