Natural Law School of Jurisprudence

Natural Law School thinking which is known as higher law and it has occupied an important place in the area of ethics, politics, law, religion, and social philosophy from time immemorial. Infact the entire galaxy of legal theory will not be completed if it is not bejeweled with the Stars like natural law. Which speaks with the contribution from all ages. It is like a flower in the garden when flowers are blooming one after another with new significance and contributions.
   According to Blackstone,
"The natural law being co-existent with mankind and emanating from God himself, is superior to all of the laws. It is binding over all the globe in all countries and at all the times and no man-made law will be valid if it is country to the law of nature."
    The natural law philosophy dominated in Greece during 5th B.C. when it was believed that it is something external  to man. Sophists called it as an order of thing which embodied reason. Socrates, Plato, Aristotle also accepted that postulates of reason have a universal force and men are endowed with reason irrespective of race or nationality. Cicero supported natural law since it is the creation of reason of the intelligent man who stands highest in creation by virtue of his faculty of reasoning. He believed in universal applicability of natural law because it is based on the general morality of the human society.
    The supporters of natural law theory believe that there is a basic element in law which prevents a total separation of 'law as it is' from the 'law as it ought to be'.

Salient features of Natural Law:-
1. Guide for legal development:- Law is related to justice, reason, human nature and ethics which guide legal development and adminstration.
2. Prevention of separation between 'is' and 'ought':- It is a basic quality in law that it prevents a total separation of law as it is and law ought to be.
3. Basis of a priori method:- It is the method of discovering the perfect law and rules of law. It can be studied on the basis of a priori method i.e., to accept a thing without an enquiry or observation.
4. Opposed codified law:- Natural Law is opposed to the written laws. According to it uncodified laws are wise and contrary codified laws are arbitrary.
5. Universal application:- It symbolise the physical law of nature based on moral ideals which has universal applicability at all places and time.

Historical Evolution of Natural Law Theory:-
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 required 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:-
1. Ancient Period
2. Medieval Period
3. The period of Renaissance,&
4. Modern period or revival of Natural Law

1. Ancient Period:-
a. Greek period:- Having the concept of universal law of mankind, the Greeks were the first propounder of Natural Law thinking. Its thinking of natural law has two aspect one is philosophy another is law & politics. Law must be understood from its applied form and the striking point always the philosophy and than the law.
   The philosophy relates to the mind of reasoning as the mind of human being is the part of nature. According to Heraclitus, "every human being have an idea of reasoning, he use the symbol representation of fire. Fire always purifies and also give light and that light is the torch of knowledge, which lead us to a better civilization of future".
   Socrates, Plato, Aristotle, Zeno etc., Were all belong to the school of thought. Socrates sets out to urge the existence of moral philosophy or principle. He emphasised on "insight" in the nature of conduct, which provides the knowledge of good and bad. Plato also followed the idea given by Socrates. He found two solutions for the problem of natural justice_
(i) Law of nature based upon physical existence.
(ii) The other is based upon social impact.
    Aristotle the another great Greek philosopher of this school of thought. He observed natural law as of political justice..................., which everywhere has same force recognised as just. So, there are something that is just even by nature yet all of it is changeable. Hence he was in favour of preserving the status quo and the positive law.
   Zeno said that nature is identified with reason and natural law is the law of reason.

b. Roman period :-The Roman accepted the idea of the Greek concept of natural law, which paying attention to their custom and classified the Roman Law into following categories_
(i) Jus Civile - indigenous or municipal law
(ii) Jus Gentium - law of nation or international law
(iii) Jus Naturale - natural law.

(i) Jus Civile :- Jus Civile was the civil and positive law and may be called indigenous or Municipal Law. It was enforceable by the court to regulate the relationship between Roman citizen themselves i.e., civil law of Rome was available to the citizens only.

(ii) Jus Gentium :- Jus Gentium is the law of the nation which was a part of positive law of Rome and it was wider in its scope then the Jus Civile.

(iii) Jus Naturale :- Jus Naturale had no validity in the court, yet it formed the foundation on which the other law were based. Both Jus Gentium and Jus Naturale was based on human reason and morality. Both had wider application, which was applied to all mankind. The only difference between Jus Naturale and Jus Gentium  is that the former had legal validity in the courts whereas later was not enforceable by courts.  Jus Naturale is the law of immunity and that is why it is known as divine law.

2. Medieval Period:- Natural law theory had explored a new orbit or dimension after the dark ages. Which was followed by the full of Rome and with the establishment of holy Roman empire.
    The salient features of this period were:-
(i) Need for stability in the world.
(ii) Need for rational arguments.
(iii) Need for unifying Christian philosophy.

⚫Christian era:- After the Rome period the Christian further had placed the principle of natural law. Saint Augustine the most prominent among them who influenced the most of the philosophers of that time ,who were known as Neo-plantonists.  According to Saint Augustine the church was the exponent of divine law and is entitled to interfere with the Institution of positive law if it is not just.

Saint Thomas Aquinas:- One of the greatest philosopher of mediaeval period Saint Thomas Aquinas. He is considered to be the representative of the natural law theory of his age. According to him Social Organisation and Institution and state are the result of natural phenomena. He said that men can control his destiny to a considerable extent, but he is subject to certain basic impulses, such as self-preservation, reproduction of his species, bringing up children etc., for improving its future and attainment of perfection. He defined law as an ordinance of reason for the common good made by him who has the care of the community and promulgated through reason.
   Saint Thomas Aquinas made a classification of law on following categories:-
(i) law of God or external law
(ii) natural law revealed through reason
(iii) divine law the law of scriptures
(iv) human laws or positive law

3.Renaissance period:- The period of Renaissance in the history of development of natural law is also known as modern classical era. General awakening among the masses coupled with new discoveries of science during the 14th and 15th century shattered the foundation of established values. The general wave of nationalism and demand for absolute sovereignty of state and Supremacy of the positive law overthrowing the dominance of the church.
After these dark period the natural law theory reached the age of Renaissance, where the prominent jurist like Hugo Grotius,  locke, Rousseau had developed their own Theory on natural law.
    Hugo Grotious a philosopher and jurist and belongs to the Dutch family. According to him man by nature is a peace loving and desire to live according to dictates of their reason. He therefore treated " natural law as immutable (not changeable) which cannot be changed by God himself"
   Thomas Hobbes propounded the theory which is known as social contract theory and his theory is related to the evolution of the state.
   According to the Hobbes prior to social contract men live in a chaotic condition of constant fear. the life in the state of nature was solitary, poor, nasty, brutish, and short. Therefore in order to secure self protection and avoid misery and pain men voluntarily entered into contract and surrender their freedom to some mightiest authority who could protect their lives and property and this led to the existence of the institution call ruler which letter assume the shape of state.
    John Locke observed that the purpose of state and law was to uphold and protect the natural lives of men
So long as the state fulfill this purpose the laws were valid and binding but when it ceases to do so the people have a right to Revolt against the government and over through it. According to Locke there are three main rights of a human being they are right to life, liberty and property.

4. Modern Period :- In the 19th Century after the classical Era; there was a revival of natural law theory and it was a reaction against the theories propounded by analytical supporters. It was realised that abstract thinking or a priori method were not completely futile. The material progress and its effects on society made the thinkers look for some values and standard. The social reformers and socialist attack inequalities in society. Lawyers begun to feel that the law was not simply a matter of applying statutes and precedent to any given case and situation by means of pure logic. It demand a guide of higher law than positive.
    The new theories of this period also took into account the various approaches to law made by analytical, historical, and sociological supporters. They also sought guidance from the contemporary theories in order to enhance their knowledge. The revived natural law is not abstract and non changeable the new approach of natural law is based on practical problems of the community at large. It tries to harmonize natural law with the variabilities of human ideas. From the point of view of old theories of natural law, this Revival period of natural law has been called as the natural law with a variable content. Stamller, Kant, John Rawls, Lon Fulor etc., were belong to this period.

⚫Natural law principles under Constitution of India:-  It must be stated that the principle of natural law find a prominent place in the constitution of India. The provisions relating to Preamble fundamental rights and Directive Principles of State Policy amply show that the framers of the Indian Constitution were particularly conscious about the inclusion of natural rights in the constitutional document. The right to equal justice and free Legal Aid (Article 39A) and workers participation in management of the industries (Article 43A) have further been inserted in the Constitution by the Constitution (42nd amendment) Act,1976 to ensure adequate protection to poor and indigent persons.
     Article 15(4) which was added by the Constitution (1st Amendment) Act, 1951 provides for special provision for advancement of backward classes by way of exception to Article 15(1) and (2) and Article 29(2). The Clause is applicable in cases of both socially and educationally backward classes. The import of natural law theory in this provision of the Constitution is meant for the protection of backward classes of citizens against discrimination.
    The constitutional protection against an double Jeopardy and prohibition against self-incrimination as provided under Artical 20(2) and 20(3) of the Constitution respectively in embodies principle of natural law theory. Again, safeguard against arbitrary arrest and detention as envisaged by Art.22 of the Constitution of India.
     The provision of Article 311 of the constitution which provides adequate protection to Civil Servant against arbitrary dismissals, removal or reduction in rank is also based on the principle of natural justice. Thus in the case of Union of India v/s Tulsiram Patel(1985) the Supreme Court held that the dismissal, removal or reduction in rank of a government servant under the second proviso of Article 311(2) without holding enquiry is in public interest and therefore not violative of article 311(2) and 14 of the constitution. The second proviso of Article 311(2) expressly provides that the Audi alteram partem rule of natural justice shall not apply in 3 circumstances and the petitioner's case fell in one of such circumstances. Therefore it leaves no scope of any kind of opportunity and hence Article 14 was not violated.
    The basic structure theory propounded by Supreme Court of India in kesavananda Bharati vs State of Kerala (1973) furnishes the best illustration of Judiciary's zeal to incorporate the principles of natural justice in the constitutional jurisprudence.