Jurisprudence
The Natural Law School
At a Glance ▪ Natural law is a higher law, discoverable by reason, against which human law is measured. Its classic slogan, lex iniusta non est lex (an unjust law is no law), goes back to Augustine and was quoted by Aquinas. ▪ Aquinas gave four kinds of law: eternal, natural, divine and human. Grotius (De Jure Belli ac Pacis, 1625) said natural law would hold even if we granted that God does not exist (etiamsi daremus). ▪ The social contract thinkers used natural law to opposite ends: Hobbes (Leviathan, 1651) for absolute sovereignty, Locke (Two Treatises, 1690) for natural rights and limited government, Rousseau (Social Contract, 1762) for the general will. ▪ Hume's is and ought objection, Bentham and Austin led the nineteenth-century decline. The revival came with Stammler (natural law with a variable content), Kohler, Del Vecchio, Maritain, Radbruch (formula, 1946), Fuller (1964) and Finnis (1980, seven basic goods). ▪ In India, dharma is a natural-law idea. Gopalan (1950) rejected natural law; Maneka Gandhi (1978), Khanna J's dissent in ADM Jabalpur (1976) and Puttaswamy (2017) embraced its spirit. The basic structure doctrine has a natural-law flavour but rests on implied limits in the Constitution, not on natural rights. |
A carpenter measures every plank against a ruler. The plank may be long or short, straight or warped, but the ruler does not change with the plank. Natural law claims to be that ruler for human law. Kings and parliaments make laws, but there is a standard, found by reason in the nature of human beings, against which their laws can be measured and, if they fall too short, condemned. For over two thousand years this idea has been used to limit tyrants, to found human rights and to judge the Nazi regime at Nuremberg. It has also been used to defend absolutism and even slavery, which is why its critics call it vague. This note traces its story and shows where it lives in Indian constitutional law.
Figure: The long story of natural law: Greece, Rome, the medieval synthesis, Grotius, the social contract, the nineteenth-century decline and the twentieth-century revival
1. Meaning and Characteristics
Natural law means the principles of right conduct that flow from the nature of human beings (or of the universe, or of God), that are discovered by reason rather than enacted, and that are higher than the positive law of any State. It is traditionally described as universal (the same everywhere), immutable (the same in all ages), rational (known by reason) and moral (bound up with justice). It has been called by many names: divine law, the law of reason, the law of nature, jus naturale. The characteristic natural-law claim is that the validity or at least the full authority of human law depends on its agreement with this higher standard.
2. Ancient Natural Law
The idea appears in Greek tragedy, when Antigone defies King Creon's decree by appeal to the unwritten and unfailing laws of the gods. Socrates accepted death rather than disobey the laws of Athens, yet taught that there is a justice beyond convention. Aristotle distinguished natural justice, which has the same force everywhere, from legal or conventional justice, which varies from city to city. The Stoics (founded by Zeno) universalised the idea: one reason governs the whole cosmos, and all human beings share in it. In Rome, Cicero gave the classic statement: true law is right reason in agreement with nature, universal, unchanging and everlasting, and neither senate nor people can release us from it. The Roman jurists distinguished jus civile (the law of the citizens), jus gentium (the law common to all peoples) and jus naturale (the law of nature).
3. The Medieval Synthesis: Augustine and Aquinas
The Church Fathers joined natural law to Christian theology. St Augustine wrote that a law which is not just does not seem to be a law at all. St Thomas Aquinas quoted him with approval in the Summa Theologiae, and the maxim is now remembered as lex iniusta non est lex. Aquinas defined law as an ordinance of reason for the common good, made by him who has care of the community, and promulgated (Note 7), and arranged all law into four kinds.
Aquinas's four kinds of law ▪ Eternal law: God's rational plan governing the whole universe. ▪ Natural law: the rational creature's participation in the eternal law. Its first precept is that good is to be done and pursued, and evil avoided. ▪ Divine law: the law revealed in Scripture, needed because reason alone cannot guide man to his supernatural end. ▪ Human law: positive law made by rulers, derived from natural law either as a conclusion (do not kill) or as a determination of details (which side of the road to drive on). A human law contrary to natural law is not law but a corruption of law, and does not bind in conscience, though it may sometimes be obeyed to avoid scandal or disorder. |
4. Grotius and Secular Natural Law
With the Renaissance and the Reformation, Europe could no longer agree on religion, and natural law had to be rebuilt on reason alone. Hugo Grotius, in De Jure Belli ac Pacis (On the Law of War and Peace, 1625), argued that natural law rests on the rational and social nature of man. It would have a degree of validity, he wrote in the Prolegomena, etiamsi daremus non esse Deum: even if we were to grant that there is no God. Natural law, for Grotius, is so unalterable that God himself cannot change it, just as he cannot make two times two not equal four. Grotius used these principles to found the law of nations, which is why he is called the father of international law.
5. Natural Law and the Social Contract
In the seventeenth and eighteenth centuries natural law took the form of the social contract: the State arises from an agreement of individuals leaving a pre-political state of nature. The same method produced very different politics.
Thinker and work | State of nature | The contract and its result |
|---|---|---|
Hobbes, Leviathan (1651) | War of all against all; life 'solitary, poor, nasty, brutish, and short' | Men surrender their rights to an absolute sovereign for security; no right of resistance except to save one's life |
Locke, Two Treatises of Government (1690) | Peaceful but insecure; natural rights to life, liberty and property | Government holds power on trust to protect natural rights; if it breaks the trust, the people may resist and replace it |
Rousseau, The Social Contract (1762) | Free, equal and self-sufficient; the book opens: 'Man is born free, and everywhere he is in chains' | Each gives himself to the community; sovereignty lies in the people and law expresses the general will |
Locke's natural rights shaped the American Declaration of Independence (1776) and, with Rousseau, the French Declaration of the Rights of Man (1789). Through them natural law became the ancestor of modern human rights and of the fundamental rights in written constitutions.
6. The Nineteenth-Century Decline
Natural law fell from favour for three reasons. First, Hume, in A Treatise of Human Nature (1739 to 1740), observed that writers on morality slide from statements about what is to statements about what ought to be, without explaining how an ought can follow from an is. If that step is invalid, the natural lawyer cannot derive norms from human nature. Second, Bentham mocked natural rights as 'nonsense upon stilts', and Austin insisted that 'the existence of law is one thing; its merit or demerit is another'. Third, the historical school (Savigny) showed that law differs from people to people and age to age, which denied natural law's claim to be universal and immutable. Positivism and historicism dominated the century.
7. The Twentieth-Century Revival
The revival began before the World Wars and gathered force after them, when the Nuremberg defendants pleaded that they had only obeyed the law of their State. It was not the work of Fuller alone.
The revivalists ▪ Rudolf Stammler (German neo-Kantian): natural law with a variable content. The form of just law is constant, but its content changes with time and place. This answers the historical school while keeping an ideal of justice. ▪ Josef Kohler (neo-Hegelian): law must be measured against the jural postulates of the civilisation of each age, an idea Pound later borrowed. ▪ Giorgio Del Vecchio (Italian neo-Kantian): founded natural law on the autonomy and dignity of the human person. ▪ Jacques Maritain (French neo-Thomist, Man and the State, 1951): restated Thomist natural law as the basis of human rights. ▪ Gustav Radbruch (the Radbruch formula, 1946): a positivist before the war, he argued after it that where the conflict between statute and justice reaches an intolerable degree, the statute as 'false law' must yield to justice; and where a statute does not even aim at justice, it lacks the nature of law. ▪ Lon Fuller (The Morality of Law, 1964): law has an inner morality of eight principles: generality, promulgation, non-retroactivity, clarity, non-contradiction, possibility of compliance, constancy, and congruence between official action and declared rule. A total failure in any one does not merely make bad law; it results in something that is not a legal system at all. ▪ John Finnis (Natural Law and Natural Rights, 1980): the leading modern restatement (below). |
Finnis: basic goods and practical reasonableness
Finnis rebuilt Thomist natural law without Hume's fallacy. He does not derive values from facts about human nature; he argues that certain basic goods are self-evidently worth pursuing, grasped by practical reason. There are seven: life, knowledge, play, aesthetic experience, sociability or friendship, practical reasonableness, and religion (in the broad sense of concern with the ultimate order of things). A set of requirements of practical reasonableness (such as a coherent plan of life, no arbitrary preference among the goods or among persons, respect for every basic good in every act, and favouring the common good) guides how we pursue them. Law is justified as a means of securing the common good. An unjust law remains law in a technical sense, but it is not law in the central or focal sense and its moral obligation to obey is weakened or lost.
Hart's minimum content of natural law
Even the leading positivist made a concession. Hart, in The Concept of Law (1961), argued that given certain plain truths about human beings and their world, any legal system that is to survive must contain certain rules, for example against violence and theft and for respecting promises. These five truisms are human vulnerability, approximate equality, limited altruism, limited resources, and limited understanding and strength of will. This minimum content of natural law is a positivist's point about survival, not a claim that unjust law is invalid. The wider Hart and Fuller debate of 1958 on law and morality is treated in Note 65.
8. Dharma: An Indian Natural-Law Idea
Classical Indian thought had its own higher law. Dharma is the order that sustains the world and society, binding on subjects and rulers alike. The king's duty (rajadharma) was to protect and uphold dharma, not to make law at will. Like Western natural law, dharma is at once moral and legal, rooted in a cosmic order, and a standard for judging rulers. Unlike the Thomist version, it was never thought to be the same for all: much of it depended on stage of life and station (Note 44).
9. Natural Law in Indian Constitutional Jurisprudence
Indian constitutional history can be told as a movement from a positivist starting point towards natural-law values, though always through the text of the Constitution rather than by openly applying a higher law.
A.K. Gopalan v State of Madras Supreme Court of India, 1950 The majority held that 'law' in Art. 21 means State-made law and refused to read into it principles of natural justice or American due process. The Constituent Assembly had deliberately preferred 'procedure established by law' to 'due process of law'. A positivist rejection of natural law. |
I.C. Golak Nath v State of Punjab Supreme Court of India, 1967 (11 judges, 6:5) Holding that Parliament could not amend the fundamental rights so as to take them away, Subba Rao CJ treated the fundamental rights as akin to natural rights: primordial rights that the Constitution recognises and places beyond the ordinary reach of the State. The case also introduced prospective overruling. |
Kesavananda Bharati v State of Kerala Supreme Court of India, 1973 (13 judges, 7:6) Counsel argued that fundamental rights were natural rights beyond amendment. Most judges rejected the natural-rights argument. The majority instead held that the power to 'amend' carries implied limits: it cannot be used to destroy the basic structure of the Constitution. The basic structure doctrine therefore has a natural-law flavour (some values are beyond the reach of the ordinary law-maker), but it is not itself a natural-law doctrine. Its source is the Constitution's own text and structure, not a higher law outside it. |
ADM Jabalpur v Shivkant Shukla Supreme Court of India, 1976 (5 judges, 4:1) The majority held that during the Emergency no one could move a court to enforce Art. 21, even against unlawful detention. Khanna J, dissenting, held that the sanctity of life and liberty did not depend on the Constitution; even without Art. 21, the State could not deprive a person of life or liberty without the authority of law. A natural-law dissent that later became the law. |
A.K. Kraipak v Union of India Supreme Court of India, 1969 The Court held that the rules of natural justice apply to administrative as well as quasi-judicial inquiries, since their aim is to secure justice and prevent its miscarriage. A selection board member who was himself a candidate was held disqualified by bias. Natural justice (no one a judge in his own cause; hear the other side) is a procedural cousin of natural law, not the same thing: it is a rule of fair procedure, not a theory of higher law. |
Maneka Gandhi v Union of India Supreme Court of India, 1978 (7 judges) The Court required that procedure under Art. 21 be just, fair and reasonable and applied the right to be heard to the impounding of a passport, effectively reversing Gopalan's positivism. |
K.S. Puttaswamy v Union of India Supreme Court of India, 2017 (9 judges) The Court held that privacy is a fundamental right, described life and liberty as inalienable natural rights that the Constitution recognises rather than creates, and overruled the ADM Jabalpur majority. |
10. Merits and Criticism
Merits | Criticism |
|---|---|
Keeps law answerable to justice and gives a standard to condemn wicked law | Vague: what is 'natural' has varied from age to age |
Root of human rights, constitutionalism and the rule of law | Used for opposite causes: absolutism (Hobbes) and resistance (Locke), slavery and its abolition |
Explains why law claims to oblige, not merely to compel | Hume: an ought cannot be derived from an is |
Answered Nazi legality at Nuremberg and in the Radbruch formula | Positivists: confuses law as it is with law as it ought to be (Austin, Hart) |
The balance struck by modern writers is that natural law answers a permanent need, a standard higher than the will of the powerful, and that its best modern forms (Stammler's variable content, Fuller's procedural morality, Finnis's basic goods) avoid the old claim to a fixed code of rules valid for all time.
Memory Aid ▪ Analogy: the carpenter's ruler. Human laws are planks; natural law is the ruler they are measured against. Stammler's twist: the ruler's markings change with the age, but there is always a ruler. ▪ Aquinas's four: 'Every Nation Deserves Humanity'. Eternal, Natural, Divine, Human. ▪ Finnis's seven goods: 'Life Knows Play, Art, Friends, Reason, Religion'. Life, Knowledge, Play, Aesthetic experience, Friendship, practical Reasonableness, Religion. ▪ Hart's five truisms: 'Every Vulnerable Adult Requires Understanding'. approximate Equality, human Vulnerability, limited Altruism, limited Resources, limited Understanding and strength of will. |
Exam Corner: Likely Questions ▪ Trace the development of natural law from the Greeks to the twentieth-century revival. ▪ Explain Aquinas's classification of law and the maxim lex iniusta non est lex. ▪ Discuss the modern revival of natural law with reference to Stammler, Radbruch, Fuller and Finnis. ▪ How far has natural law influenced Indian constitutional law? Is the basic structure doctrine a natural-law doctrine? |
Exam Corner: MCQ Traps ▪ 'Minimum content of natural law' is Hart, a positivist, not Fuller or Finnis. ▪ 'Natural law with a variable content' is Stammler. ▪ 'Etiamsi daremus' (even if we granted there is no God) is Grotius, De Jure Belli ac Pacis (1625). ▪ Lex iniusta non est lex: the idea is Augustine's, quoted by Aquinas. ▪ Leviathan (1651) is Hobbes; Two Treatises of Government (1690) is Locke; The Social Contract (1762) is Rousseau. Natural Law and Natural Rights (1980) is Finnis. |
11. Frequently Asked Questions
Q. What is natural law?
A. A body of principles of right conduct, derived from human nature and discoverable by reason, that is higher than the positive law of any State and serves as the standard for judging it. Its classic claim is that an unjust law is not true law.
Q. Is the basic structure doctrine natural law?
A. It has a natural-law flavour because it places certain values beyond the reach of the amending power. But in Kesavananda Bharati (1973) most judges rejected the argument that fundamental rights are natural rights; the doctrine rests on implied limits in the word 'amend' and the structure of the Constitution itself.
Q. What are Finnis's basic goods?
A. Life, knowledge, play, aesthetic experience, sociability or friendship, practical reasonableness and religion, set out in Natural Law and Natural Rights (1980). The requirements of practical reasonableness guide how they are pursued, and law is justified as serving the common good.
Q. How is natural justice different from natural law?
A. Natural justice is a set of procedural rules (no bias, hear the other side) applied by courts, as in A.K. Kraipak (1969) and Maneka Gandhi (1978). Natural law is a whole theory of a higher law against which positive law is measured.
See also: Note 7 (meaning of law), Note 20 (law and morality), Note 54 (positive versus natural law), Note 55 (natural law versus positivism), Note 65 (Hart versus Fuller), Note 78 (natural versus legal rights).
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