NATURAL LAW – THEORY

The natural law philosophy occupies an important place in the era of politics, law, religion and
ethics from the earliest times. All the jurists are of different opinion regarding the term natural law
theory and this term has been interpreted depending on needs of the legal thought. The exponents
of natural law philosophy believes that it is a law which is inherent in the nature of man and is
independent of convention, legislation or any other institutional devices.
According to Blackstone1, “ The natural law being coexistent with mankind and emanating from
god himself, is superior to all other laws. It is binding over all the countries at all times and no man
made law will be valid if it is contrary to the nature of law.”
According to Cohen2, “Natural law is not a body of actual enacted or interpreted law enforce by
courts, it is in fact a way of looking at things and a humanistic approach of judges and jurists.”

CHARACTERISTICS OF NATURAL LAW

The main characteristics of Natural law are:
1. Natural law deals with method which is known as ‘a priori’ method. This method accepts
the things as they actually are without any further enquiry and observation on them.
2. Natural law symbolizes physical laws on nature which is based on moral ideals and has
universal applicability.
3. The concept of rule of law in England and India are based on the natural law philosophy.
4. The development of human rights jurisprudence is based on the natural law.
5. Natural law is eternal and unalterable.
6. Natural law is not man made and cannot be forced by any external agency.
7. It has no formal written code.

EVOLUTION OF NATURAL LAW THEORY

The natural law theory has been evolved through the following stages :
1. Ancient Period in Greece- During the ancient period there were various proponents of the
natural theory. The concept of natural law started from the Greece. The famous
philosophers in Greece are Heraclitus, Socrates, Plato and Aristotle. Following are the
teachings of them:
Heraclitus- The concept of natural law was developed by Greek philosophers around 4th Century
B.C. Heraclitus was the first greek philosopher who defines the three man characteristics of the
law of nature which are destiny, order and reason. He states that there is a definite relation between
the things and a definite order and rhythm of events. According to him reason is one of the essential
elements of natural law. The instability and frequent changes in the early small city states of Greece

1
Blackstone: Commentaries, Introduction p. 39
2
Cohen & Cohen: Readings in jurisprudence and legal Philosophy, (1951), p. 660
made legal philosophers to think that law was meant to serve the interests of those who were in
power and the people are incessantly struggling for a better life.
Socrates- Socrates was one of the major stoic philosophers who admired the natural law. He was
a great admirer of truth and moral values. According to him there are two types of natural laws
one is natural physical law and other is natural moral law. He also stated that Natural law is a
specie of law which is universal and immutable and uniformally applicable to all the persons at all
the times.
Plato- Plato was the student of Socrates. He gave the concept of idealism which believes in
pursuing some perfect vision or belief. According to plato, the forms of goodness, virtue and
honesty were eternal and immutable because they give all men equal measure so that they can have
a sense of justice.
Famous work- Republic
Aristotle- According to Aristotle a man is a part of the nature in two ways:
(i) He is a creation of god
(ii) He possesses insights and reasons which enable him to articulate his actions.
He embodies the basic principles of justice and morality which have universal validity and
independent of time and place. Aristotle also suggested that the ideals of natural law have emanated
from the human conscience and not from human mind and therefore are more valuable than the
positive law which is an outcome of human mind
Roscoe pound made the following observation on greek natural law philosophy:
(i) It was the result of the views and ideas expressed by thinkers, philosophers or orators
and not of jurists or lawyers.
(ii) It was influenced by politically declared laws and tribal customs.
(iii) Enacted laws were in fact the declared customs, the validity of which was affected by
their indifference to natural law principles.
(iv) There was a growing consciousness that law was a product of wisdom and reason which
conferred its validity.

2. Medieval Period- The time period from 12th Century to mid fourteenth century is generally
termed as the Medieval Period. This theory was dominated by the ecclesiastical doctrines
which the Christian fathers propogated for establishing the superiority of churches over
states. The main proponent of natural law theory in the medieval period was Thomas
Acquinas.
St. Thomas Acquinas- Thomas Acquinas divided the law into four stages:
(i) Law of God- It is the law which is made by god itself
(ii) Natural Law- It is the part of law which reveals itself in the natural reason. This is
applied by human beings in governing their affairs and relations.
 (iii) Divine law- Divine Law is basically the law of scriptures. Any thing which is there in
scriptures is the divine Law. According to him the church is the authority to interpret
the scriptures. He basically strengthened the position of church.
(iv) Positive Laws/ Human Laws- According to Acquinas positive law must conform to
the natural law, and is valid only to the extent to which it is compatible to natural law.
Like all the other proponents of the natural law, Thomas also gives primacy to Natural Law over
any positive or other laws.
3. Modern Classical Era- The modern classical era which is also known as the period of
Renaissance is marked by rationalism and emergence of new ideas in different fields of
knowledge. In this time period a new theory was emerged which is known as the Social
Contract Theory. According to this theory the humans come together and formed a social
contract that everyone has certain rights and those rights are enforced by putting certain
duties on everyone. Example- Every person has right to life, so every person has duty not
to kill. Following are the main supporters of theory:
Thomas Hobbes- The theory of Thomas Hobbes can be summarized as:
 Thomas hobbes defines state of nature according to which a man always had a fear of
instant death. Due to the fear among the people, they form a social contract and gave all
the powers to state which become powerful due to this and is responsible for providing
security for everyone`s life.
 The theory of hobbes support the idea of absolute authority of the sovereign.
 In his famous work Leviathan, he observed that law is dependent upon the sanction of the
sovereign.
Famous Works by Hobbes – Leviathan and Behemoth
John Locke- The theory of John Locke can be summarized as:
 This theory focuses more on the individualism and believs that people don’t give all their
rights to sovereign but only part of their rights.
 He emphasize protection of three main rights which are right to individual liberty, right to
life and property.
 Unlike Hobbes, he was of the opinion that the power of sovereign should not be unlimited,
the individual shall have power to overthrow the government.
Famous Work of John Locke- Two Treatise of Government
Jean Jecques Rousseau- The theory of Jean Jecques Rousseau can be summarized as :
 According to Rousseau, man enter into contract in order to preserve his rights of equality
and freedom, but they may surrender their rights to the community as a whole which is also
known as the Theory of General will.
 According to him the general will is of all people, and should be obeyed because, the will
of general public is in someway your will too. Because people are connected to each other.
  The government and laws should adhere to the general will and if they do not conform to
the general will the government should be discarded.
 The General Will is the source of legitimate political authority. Rousseau argues that true
sovereignty resides with the people collectively, and they express it through the General
Will.
Famous Works by Rousseau- The social Contract, Confessions and Discourse on equality
Immanuel Kant- The natural law philosophy and doctrine of social contract was supported by
Immanuel Kant. He emphasise that basis of social contract is reason. He favoured the concept of
separation of power and states that the main function of the state is to protect the law. Kant also
propounded the theory of Categorical Imperative. This theory is derived from Rousseau`s theory
of General Will and is based on two principles which are:
1. This theory expects a person to behave in accordance with his own self conscience.
2. An action is right only when it co exists with each and every man`s free will according to
the universal law.

4. Reaction against positivism/ Downfall of Natural theory- With the advent of the
positivism the natural law theory suffered a set back. The industrial revolution and
scientific discoveries had created an environment which is against the natural law theory.
The main propounders of the positivist approach were Bentham and Austin. Some of the
supporters of positivist approach due to which natural law theory suffered a set back are:
David Hume- He was of the view that natural laws says that values are inherent in nature but it is
not true, the values and the concept of justice varies a lot from place to place. According to him if
there would be a prefect, complete system discovered by man then there wont be so many divergent
interpretation of law throughout the world.
Bentham- Bentham described natural law as “Simple nonsense; natural and imprescritptible
rights, rhetorical nonsense, nonsense upon slits”.
Austin- Austin also did not believe in any natural rights, according to him all rights are created by
state and enforced by state. He also did not acknowledged the social contract theory and said that
people did not consent the state to make laws for them, but state forces them to obey their
commands.
5. Revival of Natural Law theory- In 20th Century there were certain attempts to revive
Natural law, because it was felt that there is need for some basic values and standard for
society, it was realized that society would always need an ideal of justice. Because of lack
of ideals World War I also happened so there was a need for revival of Natural Law theory.
Some of the main thinkers which led to the revival are:
Rudolf Stammler- The theory given by Stammler can be summarized as:
 The theory given by Stammler was a theory of natural law with a variable content.
  It is basically a hybrid theory between analytical and natural law school. It means that it is
simply a blend of both the schools.
 According to him the laws can be different for different societies, but the ends to be
achieved by those laws are ascertainable by the a priori method( used in Natural Law
theory).
Jerome Hall- The theory given by professor hall on insisted on unifying moral, social and formal
considerations and including moral values in definition of positive law. He may therefore, be called
as the supporter of Natural Law Philosophy. According to him law consists of six features which
are:
(i) Ethical validity
(ii) Functional
(iii) Regularity
(iv) Effectiveness
(v) Public interest
(vi) Inexorability

DRAWBACK OF NATURAL SCHOOL OF LAW

1. The concept of morality is a concept which changes from place to place and even , so this
concept cannot be held as universally applicable.
2. The rule of morality are not always open to change but legal rules need changes from time
to time seeing the situation of countries.
3. Generally legal disputes are settled by the law courts but the disputes relating to morality
cannot always be set by the court.
4. Sometimes law and morality stands in conflict with each other.

ANALYTICAL SCHOOL OF JURISPRUDENCE

Analytical school of jurisprudence is the school of law which deals with the law as it exists in the
present form. This school of jurisprudence treat law as a command given by the State that`s why
it is also known as the Imperative school of jurisprudence. The advocates of this school are
concerned only with the law as it is and not the future or past aspects of law. This school of law
consider law as it actually exists i.e. positus, that`s why this is also known as positive school of
jurisprudence. Some of the major proponents of this school are Bentham, Austin, Hart etc.

JEREMY BENTHAM
Jeremy Bentham is one of the main proponents of the analytical jurisprudence. He opposed the
idea of natural law and natural rights and called natural law as Nonsense upon slits or Anarchial
Fallacies.
Famous Works by Jeremy Bentham- Limits of Jurisprudence Defined, An introduction to
principles of Morals and legislations, A fragment of Government and Of Laws in General.
He divides Jurisprudence into two types:
 1. Expository- The term expository is concerned with law as it is without giving any regard
to its moral or immoral character.
2. Censorial- Censorial Jurisprudence on the other hand concerns itself with the science of
legislation, that deals with what ought to be.

BENTHAM`S UTILITARIANISM
Bentham is considered as the founder of Utilitarianism. According to this theory, the right aim of
the legislation is to carrying out the principle of utility. In other words, the proper end of every law
is the promotion of the greatest happiness of the greatest number. According to Bentham the task
of government was to promote happiness of society by furthering enjoyment of pleasure and
affording security against pain.
Bentham according to this theory desired to ensure happiness of the community by attaining four
major goals which are:
(i) Subsistence
(ii) Abundance
(iii) Equality
(iv) Security for citizens
This principle of Utilitarianism is also known as the doctrine of Hedonism or theory of pain and
pleasure. The term Hedonism means the pursuit of pleasure, it means that the main objective of
any law is to get pleasure. The pleasure and pain can be quantified by the Utilitarian/ Hedonistic
Calculus which consist of 7 factors namely:
(i) Intensity- How strong is the pleasure?
(ii) Duration- How long will the pleasure last?
(iii) Certainty- How likely is that the pleasure will occur?
(iv) Remoteness- How soon will the pleasure occur?
(v) Fecundity- Probability that the action will be followed by the sensations of same kind
(vi) Purity- The probability that it will not be followed by sensations of opposite kind
(vii) Extent- How many people will be affected?

CRITICISM AGAINST BENTHAM

Some of the criticisms against Bentham are:
1. Criticism by Friedmann- According to him the theory of bentham suffers mainly from
two weaknesses which are:
(i) Firstly, According to him Bentham underestimates the need of individual discretion
and flexibility in the application of law overestimating the power of legislator
(ii) Secondly this theory fails to balance individual interests with the interest of
community.
2. Bentham`s Hedonistic Calculus- It was considered by various thinkers that the theory of
Utilitarianism cannot be the final test of the adequacy of law.
 JOHN AUSTIN
John Austin is considered as the father of the Analytical School of Jurisprudence. He is also known
as the father of English Jurisprudence. He confined his study only to the positive law and applied
analytical method in doing so. John Austin gave the imperative theory of law.
Famous Works by John Austin- A plea for Constitution and The province of Jurisprudence
Defined
He also differentiate the terms positive law and positive morality as according to him:
Positive Law- Austin defines that positive law is something which is law strictly so called. He
basically identifies the law with three main things command, duty and sanction. If anything is
devoid then it cannot be considered as the positive law. He considered laws which are made either
by men as political superiors to political inferiors or laws set by men in pursuance of their political
rights.
Positive Morality- According to him positive morality is something which is laws strictly not so
called or law made by analogy. In Simple words he does not considered them as laws and held
them as mere morals.

IMPERATIVE THEORY OF LAW

The Imperative theory of law is given by John Austin. John Austin rejected the natural laws on
ground that it is ambiguous and misleading. Then he gave the command theory of law which means
that all laws are commands. In the theory of Austin there are three main things which are command,
duty and sanction. He defined that every law is command, imposing a duty, enforced by sanction.
Thus he believed that law is the sovereign`s command which carries a threat of evil which is known
as sanction and the party who is commanded and threatened are under the obligation to obey it.
Three types of law which although are not command but are considered as exception by Austin
are:
1. Declaratory or Explanatory Laws- They are not commands because they are just
explanation of the laws which are already in force.
2. Laws of Repeal- Austin does not considers this law as commands because they are
basically revocation of command.
3. Law of imperfect obligation- These laws are not considered as Commands because no
sanction is attached to them.

CRITICISM OF IMPERATIVE THEORY

1. Permissive Character of Law- Austin`s theory does not take laws which are of the nature
of permissive character for ex. The bonus Act
2. No place for Judge Made Law- According to this theory of Austin there was no place for
the judge made law and only the laws made by one sovereign are considered.
3. Austin`s theory treats International Law as morality- Austin`s theory does not give
considerations to the International law as they are devoid of the one sovereign.
 4. Command Overemphasized- Austin emphasized too much on the command aspect of law
and the command aspect of law lost its significance in the present democratic setup where
people`s welfare is the main goal of the state.
5. Sanction does not mean obedience- According to the imperative theory, there is sanction
by the sovereign in order to ensure the obedience. But in reality there is no such situation
always, so that the sanction can lead to obedience.
6. Indivisibility of sovereign- In this theory, the divisibility of sovereign cannot be done. The
incompetency to indivisibility is also criticized by various thinkers and the jurists.

HLA HART
HLA Hart was one of the major proponents of the Analytical school of jurisprudence. He wrote a
famous book name The concept of Law. He rejected Austin`s theory of analytical positivism and
expounded his legal theory based on the relationship between law and society. Hart describes the
laws as the system of two types of rules which provide key to the science of jurisprudence.
Famous Works by H.L.A Hart- The concept of law, Causation in Law and Law liberty and
Morality.
The two types of rules are:
1. Primary Rules- The primary rules are the rules which imposes duty on the others
2. Secondary rules- Secondary rules are the rules which are power conferring and enable the
legislators to modify the policies according to the needs of society.
H.L.A Hart`s conception of Positivism is centered round the following considerations3:
(i) He believed that analysis of legal conceptions are worth pursuing as distinguished from mere
sociological and historical inquiries.
(ii) Judicial decisions were to be deduced from pre determined rules
(iii) Moral Judgments cannot be defended by rational argument, evidence or proof
(iv) The law as it is laid down should be kept separate from law as it ought to be.

HART- FULLER DEBATE

This debate is between HLA Hart and Lon L. Fuller. HLA Hart was a positivist whereas Lon L.
Fuller was a Naturalist.
Hart's Position:
Hart argued for the separation of law and morality. According to Hart, laws should be obeyed if
they are created according to valid legal procedures, even if they are morally questionable. He
emphasized the importance of legal systems operating autonomously from moral evaluations. Hart

3
Studies in Jurisprudence and Legal theory by Dr. N.V. Paranjape, Pg. 38
introduced the concept of a "rule of recognition," a social rule that determines the validity of legal
rules. For him, legal validity was a matter of social convention, not morality.
Fuller's Position:
Fuller, on the other hand, argued that law cannot be entirely separated from morality. He
introduced the idea of "inner morality of law," which suggests that legal systems must adhere to
certain moral standards, such as consistency, clarity, and fairness. If laws do not meet these
standards, they cannot function as laws. Fuller believed that law inherently serves a moral
purpose—to foster social order based on fairness and justice.

PYQ
Q. Which theory is propounded by Thomas Hobbes(2014) 1 marks
Q. Who propounded the theory of categorical imperative(2014) 1 marks
Q. Define social contract(2014) 1 marks
Q. Who is the propounder of social contract theory(2017) 1 marks
Q. Who is the author of famous work ‘ The concept of law’(2017) 1 marks
Q. Name any two jurists who represent Natural school of law(2018) 1 marks
Q. Which theory is propounded by John Austin(2019) 1 marks
Q. What are main drawback of Natural school of law(2019) 1 marks
Q. Why is John Austin is known as the father of English Jurisprudence(2018) 4 marks
Q. Write a short note on natural law theory(2016) 4 marks
Q. Explain General will theory of Rousseau(2014) 4 marks
Q. Explain fully the theme of the Analytical School of Jurisprudence. Whether the views given by
H.L.A Hart are workable(2018) 8 marks
Q. Critically examines the Austin theory of sovereignty in Indian context(2022) 8 marks
Q. Draw a sketch of the contribution of natural law school to jurisprudence and evaluate its
importance in present time(2014 8 marks
Q. Evaluate in short the contribution of J. Bentham towards Jurisprudence(2017) 8 marks