Notes

Natural School of Law

  • NATURAL SCHOOL OF LAW :
  • The term Natural law means those rules and principles which are supposed to have originated from some supreme sources other than any political or worldly authority.
  • The term Natural law derived from the belief that human morality comes from Nature.
  • The phrase Natural law has flexible meaning that has been interpreted differently at different times depending on the needs of the developing legal thought.
  • The concept of” Rule of law” in England and India and due process in the USA are essentially based on natural law philosophy.
Natural School of Law
  1. Ancient Period:
  • Heraclitus [530-470 B.C.]:
  • Greek Philosopher
  • Feature of natural law – destiny, order, reason
  • According to him, the reason is one of the essential elements.
  • Socrates [470-399 B.C.]:
  • A great admirer of truth and moral values.
  • According to him, virtue is knowledge and whatever is not virtuous is a sin.
  • According to him, justice may be of two kinds.Natural School of Law

                                      ( Natural uniformly             ( Legal differ from

                                  applicable to all places)            place to place)

NOTE – (Socrates )

  • Two principles of natural justice :
  • No one can be a judge in his own case
  • Audi alteram partam (let the other side be heard as well)
  • Plato [427-347 B.C.]:
    • Disciple of Socrates
    • According to him, an only intelligent and worthy person should be king.
    • Book – Republic [the concept of the ideal state “A man who work for own”]
  • Aristotle [384-322 B.C.]:
  • Law is related to nature and human

 Creation of god

  Human insight

{Reason unaffected by desire enable to articulate his actions.}

  1. Medieval Period :

(12th to mid-fourteenth Century

  • The main propagates are Saint Ambrose, St. Augustine, Gregory.
  • According to the divine law was superior to all other laws.
  • According to them, all laws are either divine or human.
  • Divine law based on nature or Human law based on custom.
  • According to Gierke, the medieval period Christian theology centered around two fundamental principles.
  • Unity derived from god, involving none faith, one church, and one empire.
  • The supremacy of both law [ divine, man – made]

NOTE –

St. Thomas Aquinas [1225 -1274] classification of law

Law of god – use of god ( external law )

Natural law – pops law ( reason)

Divine law – Priestly ( scriptures)

Human law – Positive law ( sovereign)

  1. Period of Renaissance :

( Modern classical era )

  • Renaissance – Rise of humanism – social contract – the emergence of new ideas – knowledge of the different fields.
  • Social contract
Natural School of Law
  • Hugo Grotius [1583-1645]:
    • Father of international law.
    • Work – laws of war and peace ( 1625)
    • According to him natural law based on the nature of man and his urge to live in a peaceful society.
    • He considered
  1. Divine law – grandmother
  2. Natural law – parent
  3. Positive law – child
  • He treated natural law as immutable which cannot be changed by God himself.
  • Thomas Hobbes [1588-1679]:
  • Propounded theory of social contract related to the evolution of the state.
  • He firmly believed in absolute sovereignty which depends on sanction.
  • Work – leviathan (1651)
  • John Locke [1632- 1704]:

Reject the theory of Hobbes of the social contract According to him man comes under social contract to secure their natural rights and the state and law have a duty to secure them.

Locke pleaded foe the individual liberty.

Some essentials of the doctrine of LAISSEZ FAIRE in the 19th century were found in Locke’s theory.

  • LAISSEZ FAIRE – Free market [ individual liberty]

                                                       [ minimum interference of govt.]

NOTE –

  • Social Contract: An agreement by which members of the society transfer their rights to a person then such agreement as known as a social contract.
  • Jean Jacques Rousseau (1712- 1778):
    • According to him, a social contract is a hypothetical concept.
    • Reject the theory of Hobbes and Locke of a social contract.
    • He termed social contract as “ General Will”.

NOTE –  Bentham called Natural law theory as simple non – sense due to ambiguous and misleading.

4.The decline of Natural law theory due to 19th-century positivism :

  • Decline the principles of LAISSEZ FAIRE due to this the power and authority of the sovereign were weakened.
  • 19th century was the period of Analytical school which separates morality from law.
  • The main exponent of this school are :
  1. Stammler
  2. John Rawls
  3. Geny
  4. Fuller

1.Rudolf stammler[1856-1938]:

  • According to his law of nature means “ Just Law” which harmonizes the purpose in the society.
  • According to him, the purpose of the law is not to protect the will of one but to unite the purposes of all.
  1. John Rawls [1921-2002]:
  • According to him, society is effectively regulated by justice and fairness.
  • He propounded two principles of justice –
  1. Equality
  2. Social x Economic irregularities are harmonized in such a way that it solves the purpose of society.
  • Rawls postulates three levels of justice
  1. Local Justice
  2. Domestic Justice
  3. Global Justice

                                               3. Lon luvois Fuller [ 1902-1978]:

  • A leading supporter of modern natural law philosophy.
  • According to FULLER law and morality are co-related.

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