2. Natural law theory began with the philosophers of ancient Greece who regarded
law as being closely related to justice and ethics.
Law, according to the Greek philosophers, consists of rules in accordance with
reason and nature.
According to Salmond: By natural law or moral law is meant the principles of
natural right and wrong.
Natural law has also been called divine law, the law of reason, the universal or
common law and eternal law.
Socrates declared such laws to be binding principles.
Plato stated that the goodness of laws must be measured by their contribution to
social harmony, because all individual interest must be subject to social welfare.
Aristotle named a law inspired by reason as natural law, and declared that natural
law is inherent in the nature of man.
3. THE ORIGINS OF NATURAL LAW
ANCIENT PERIOD:
Heraclitus (530 – 470 B.C.):
The concept of Natural Law was developed by Greek
philosophers around 4th century B.C. Heraclitus
was the first Greek philosopher who pointed at the
three main characteristic features of Law of Nature
namely, (i) destiny, (ii) order and (iii) reason.
Socrates (470 – 399 B.C.):
Socrates said that like Natural Physical Law there
is a Natural or Moral Law. ‘Human Insight’ is that
a man has the capacity to distinguish between
good and bad and is able to appreciate the moral
values.
Aristotle (384 – 322 B.C.):
According to him, man is a part of nature in two
ways; firstly, he is the part of the creatures of
God, and secondly, he possesses insight and
reason by which he can shape his will. By his
reason man can discover the eternal principle of
justice.
4. St. Thomas Aquinas:
gave a fourfold classification of laws, namely, (1)
Law of God or eternal law, (2) Natural Law which is
revealed through “reason”, (3) Divine Law or the Law
of Scriptures, (4) Human Laws which we now called
‘Positive law’. Natural Law is a part of divine law.
MEDIEVAL PERIOD:
THE PERIOD OF RENAISSANCE:
Hugo Grotius (1583 – 1645):
It is the duty of the sovereign to safeguard the
citizens because the former was given power only
for that purpose. The sovereign is bound by
‘Natural Law’. The Law of Nature is discoverable by
man’s ‘reason’.
Thomas Hobbes (1588 – 1679):
Hobbes was a supporter of absolute power of the
ruler and subjects had no 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.
5. MODERN PERIOD:
Rudolf Stammler (1856 – 1938):
According to him, law of nature means ‘just law’
which harmonizes the purposes in the society. The
purpose of law is not to protect the will of one but to
unify the purposes of all.
H.L.A. Hart:
Hart points out that there are certain substantive
rules which are essential if human beings are to live
continuously together in close proximity. Hart
places primary emphasis here on an assumption of
survival as a principal human goal.
John Finnis:
For Finnis, ‘Natural Law’ is the set of principles of
practical reasonableness in ordering human life
and human community.
6. Art 14 ensures equality before law
and equal protection of law to the
citizen of India.
Art 21 guarantees right to life and
liberty which is the fundamental
provision to protect liberty and
ensure life with dignity.
Art 22 guarantees natural justice
and provision of fair hearing to the
arrested person.
Art 32, 226, and 136 provides
constitutional remedies in cases
violation of any of the fundamental
rights including principles of
natural justice.
Art 311 of the constitution ensures
constitutional protection to civil
servants.
Directive principles of State
Policy specially Art 39-A takes care
of social, economic, and politically
backward sections of people and to
accomplish this object i.e. this part
ensure free legal aid to indigent or
disabled persons.
PRINCIPLES OF NATURAL JUSTICE IN INDIAN CONSTITUTION
7. Natural law and divine providence:
The eternal law, for Aquinas, is that
rational plan by which all creation is
ordered; the natural law is the way
that the human being “participates” in
the eternal law.
Natural law and practical
rationality: Natural law constitutes
the basic principles of practical
rationality. Precepts of the natural law
are universally binding by nature and
the precepts of the natural law are
universally knowable by nature. All
human beings possess a basic
knowledge of the principles of the
natural law.
The substance of the natural law
view: Aquinas says that the
fundamental principle of the natural
law is that good is to be done and evil
avoided.
Paradigmatic & non-paradigmatic
natural law theories: Paradigmatic
approach - they accept a single
explanation for why the world is the
way that it is. The most common
paradigm for a natural law is God
created the world and everything in it
and wills us to fulfil his plan. Aquinas
is one example of a religious
paradigmatic approach to natural law.
KEY FEATURES
OF NATURAL
LAW THEORIES
8. UNITED STATES OF AMERICA: The influence of natural law is
clearly visible in the Constitution of USA. The Constitution of USA
has been influenced by the theory of inalienable natural rights.
ENGLAND: As far as matters covered by statutes are concerned, the
courts are bound to accept them as such, and cannot invoke any
higher principles of natural law or Constitution as of overriding
importance. In matters not covered by a statute, English courts have
relied on natural law.
INDIA: The essence of natural law is found in the ancient Indian
concept of 'Dharma'. Dharma was the right law of life and true ideal
of living and social order. Good habits like speaking the truth, self-
restraint, benevolence to neighbours, charity, kindness etc., are
considered virtues. Malpractices like adultery, seduction, sorcery,
witchcraft and gambling are considered as evils and denounced.
INFLUENCE
OF NATURAL
LAW ON
NATIONS
9. The Natural Law theory
received a setback in
the wake of 19th
century pragmatism.
Bentham and Austin
rejected Natural Law on
the ground that it was
ambiguous and
misleading.
Modern scepticism
preached that there are
no absolute and
unchangeable
principles.
Priori methods of the
natural law
philosophers were
unacceptable in the
emerging age of science.
All these developments
shattered the very
foundation of the
Natural Law theory in
19th Century.
The historical and analytical
approaches to the study of
law were more realistic and
attracted jurists. They
heralded a new era in the
field of legal thought.
In this changed climate
of thought it became
difficult for the ‘Natural
Law’ theories to survive.
DECLINE
OF
NATURAL
LAW
10. Towards the end of the 19th
century, a revival of the
‘Natural Law’ theories took
place.
Theories which over-emphasized
positivism failed to satisfy the
aspirations of the people because
of their refusal to accept morality
and ‘reason’ as element of law.
The impact of materialism on the
society and the changed socio-
political conditions compelled the
20th century legal thinkers to look
for some value-oriented ideology.
The World War I further
shattered the western
society and there was a
search for a value-
conscious legal system.
All these factors
cumulatively led to revival
of Natural Law theory in its
modified form different from
the earlier one.
REVIVAL
OF
NATURAL
LAW
11. Actus dei nemini
facit injuriam: This
means that ‘an act of
God does no injury to
anyone’. In other
words, no one is
responsible for
inevitable accidents.
Audi alteram
partem: Is a Latin
phrase that literally
means, ‘hear the
other side too’. Give
chance to explain,
give evidence,
summon own
witnesses of the
other side. No
decision shall be
given against a party
without offering him
a reasonable hearing
Nemo judex in
causa sua: Is a
Latin phrase that
means, literally, ‘no-
one should be a
judge in their own
cause’. It is a
principle of natural
justice that no
person can judge a
case in which they
have an interest.
LEGAL MAXIMS
12. Maneka Gandhi was issued a passport on
1/06/1976 under the Passport Act 1967 but asked
to surrender her passport under section 10(3)(c) of
the Act in public interest, within 7 days from the
date of receipt of the letter.
Maneka Gandhi wrote a letter seeking in return a
statement of reasons for such order.
Ministry of External Affairs refused to produce any
such reason in the interest of general public.
Maneka Gandhi then filed a writ petition under
Article 32 of the constitution in the Supreme Court
challenging the order of the government of India as
violating her fundamental rights guaranteed under
Article 21 of the constitution.
The court finally held that the right to travel and
go outside the country is included in the right to
personal liberty guaranteed under Article 21 but
Section 10(3)(c) of the Passport Act is not violative
of Article 21 as it is implied in the provision that
the principles of natural justice would be
applicable in the exercise of the power of
impounding a passport .
The defect of the order was removed and the order
was passed in accordance with procedure
established by law.
Uma Nath Pandey Vs The State of U.P.
Challenge in this appeal is to the order passed by a
learned Single Judge of the Allahabad High Court
allowing the Revision Petition filed by a
respondent.
Learned Single Judge only heard the counsel for
the respondent and passed the impugned order.
The first and foremost principle is what is
commonly known as ‘audi alteram partem rule’. It
says that no one should be condemned unheard.
Principles of natural justice are those rules which
have been laid down by the Courts as being the
minimum protection of the rights of the individual
against the arbitrary procedure.
The purpose of following the principles of natural
justice is the prevention of miscarriage of justice.
The Judges set aside the impugned order and
remit the matter to the High Court to consider the
matter afresh after issuance of notice to the
respondents in the Criminal Revision Petition
No.2163 of 2007 which will stand restored. The
appeal is allowed.
13. Plessy vs Ferguson: Plessy (P) attempted to sit in
an all-white railroad car. After refusing to sit in the
black railway carriage car, Plessy was arrested for
violating an 1890 Louisiana statute that provided
for segregated “separate but equal” railroad
accommodations. Those using facilities not
designated for their race were criminally liable
under the statute.
At trial with Justice John H. Ferguson (D)
presiding, Plessy was found guilty on the grounds
that the law was a reasonable exercise of the
state’s police powers based upon custom, usage,
and tradition in the state.
Plessy filed a petition for writs of prohibition and
certiorari in the Supreme Court of Louisiana
against Ferguson, asserting that segregation
stigmatized blacks and stamped them with a badge
of inferiority in violation of the Thirteenth and
Fourteenth amendments.
In a 7 to 1 decision handed down on May 18, 1896
the Court rejected Plessy's arguments based on the
Fourteenth Amendment, seeing no way in which
the Louisiana statute violated it.
In addition, the majority of the Court rejected the
view that the Louisiana law implied any inferiority
of blacks, in violation of the Fourteenth
Amendment. Instead, it contended that the law
separated the two races as a matter of public
policy.
Brown v. Board of Education: (1954) was a
landmark United States Supreme Court case in
which the Court declared state laws establishing
separate public schools for black and white
students unconstitutional.
Several black children sought admission to public
schools that required or permitted segregation
based on race. The plaintiffs alleged that
segregation was unconstitutional under the Equal
Protection Clause of the Fourteenth Amendment.
In all but one case, a three judge federal district
court cited Plessy v. Ferguson in denying relief
under the “separate but equal” doctrine.
On appeal to the Supreme Court, the plaintiffs
contended that segregated schools were not and
could not be made equal and that they were
therefore deprived of equal protection of the laws.
The Warren Court's unanimous (9–0) decision
stated that "separate educational facilities are
inherently unequal." As a result, de jure racial
segregation was ruled a violation of the Equal
Protection Clause of the Fourteenth Amendment of
the United States Constitution.
Judgment was given in favour of the plaintiffs.
14. CONCLUS
ION
The history of natural law is a
tale of the search of mankind for
absolute justice and of its
failure.
Again and again, in the course
of the last 2500 years, the idea
of natural law has appeared, in
some form or other, as an
expression of the search for an
ideal higher than positive law
after having been rejected and
ridiculed in the interval BUT
the theories of natural law have
helped the development of law.
A large number of principles of
natural law have been embodied
in the legal systems of various
countries even today.
15. Natural law has fulfilled many functions. It has been the
principal instrument in the transformation of the old civil law
of the Romans into a broad and cosmopolitan system; it has
been a weapon used by both sides in the fight between the
medieval Church and the German emperors; in its name the
validity of international law has been asserted, and the appeal
for freedom of the individual against absolutism launched.
It would be simple to dismiss the whole idea of natural law as
a hypocritical disguise for concrete political aspirations and
no doubt it has sometimes exercised little more than this
function. But there is infinitely more in it. Natural law has
been the chief though not the only way to formulate ideals
and aspirations of various peoples and generations with
reference to the principal moving forces of the time.
16. At other times, as with most modern natural law theories,
natural law ideals become relative or merely formal,
expressing little more than the yearning of a generation which
is dissatisfied with itself and the world, which seeks
something higher, but is conscious of the relativity of values.
Natural law has, at different times, been used to support
almost any ideology; but the most important and lasting
theories of natural law have undoubtedly been inspired by the
two ideas, of a universal order governing all men, and of the
inalienable rights of the individual. When used in the service
of either of these ideas, natural law has formed an organic
and essential part in a hierarchy of legal values.
