Our knowledge of science and history of moral evolution refute

the idea of natural law

Submitted to: Mr. Arvind Nath Tripathi

Submitted by: Kahmish Khan

Sem: V
Roll no. 2013055

Table of Contents
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Introduction to Natural Law

Classical Philosophy behind Natural Law
Evolution of Knowledge of Man
Importance of Mans Outlook
Mans Freedom of Choice and Natural Law
Conflict between Nature, Man and Law
Law of Nature- Man is Diversified
Conclusion

Bibliography

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Introduction to Natural Law

There has been no kind of unanimity in describing what natural law is. It has been variedly
interpreted by people around the globe and has also changed with time, never reaming
constant.
According to the followers of natural law theory it means to be a law that is inherent in the
nature of man and is independent of convention, legislation or any other institutional devices.
From the jurisprudential point of view, natural law means those rules and principles which
are supposed to have originated from some supreme source other than any political or wordly
authority. Some thinkers believe that these rules have a divine origin, some find their sources
in nature while others hold that they are the product of reason. Even the modern sociological
ideology and the concept of law as a means to reconcile the conflicting interests of
individuals in the society.
Main characteristics of natural law
The phrase natural law has a flexible meaning. It has been interpreted to mean different
things in the course of its evolutionary history. However, it has generally been considered as
an ideal source of law with invariant contents. The chief characteristic features of any natural
law may be briefly stated as follows:
1. It is basically a priori method different from empirical method, the former accepts
things or conclusions in relations in relation to a subject as they are without any need
or enquiry or observation while empirical or a posteriori approach tries to find out the
causes and reasons in relation to the subject-matter.
2. It symbolises physical law of nature based on moral ideals which has universal
applicability at all places and times.
3. It has often been used either to defend a change or to maintain status quo according to
needs and requirement of the time. For example, Locke used natural law as an
instrument of change but Hobbes used it to maintain status quo in the society.
This project tries to contradict the idea of natural law on the basis of the knowledge of
science of mankind and the evolution in its morality. It tries to imply that it is not
because of any divine, pre-existing or outwardly law that the society is what it is
today but because of its own development through time both scientifically and
mentally.

The Classical Philosophy behind Natural Law

Cicero was a noted exponent of Classical Philosophy according to which, Natural law does
not only control mans Physical existence but also regulates and his thought process and way
he makes the free choices in his life. This view recognizes that while laws do not control man
in the area in which he may make choices, there are rules by which he ought (by free choice)
to be controlled, and that these are part of a system of natural law. Therefore it means that
natural law also includes moral law within it and these moral laws which a man follows are
revealed to him by God, that is, they are a divine revelation. For any man to be moral he must
be obedient to this law.
Dean Pound another exponent of the classical theory is of the view that "all positive law, i.e.,
the whole body of legal precepts that furnish the grounds of actual decision in the courts is
but a more or less feeble reflection of an ideal body of perfect rules, demonstrable by reason,
and valid for all times, all places and all men." Rules or statutes which go against such ideal
principles are completely invalid. However, reason is in no way infallible, therefore a
problem lies that whose reasoning should determine this law, which is not only permanent but
also applicable to people of various thought processes.
Thus, When two or more men or groups of men of equal sincerity believe themselves to be
endowed by the Creator with the power to ascertain and enunciate it, and they are in
disagreement, by what criterion is the choice to be made between them? History reveals a
heavy mortality rate among so-called "absolute and infallible" principles of law? Both moral
and scientific. History furnishes so many examples of fighting faiths later rejected as
unconscionable that it is difficult for one to believe that sincerity or certitude of conviction is
a reliable test of truth For example the Indian Constitution which is the longest written
constitution in the world and supposedly meets all the requirements of the people of the
country has seen approximately 119 amendments through the comparatively short span of its
existence. This doesnt mean that the laws or regulations provided under it were baseless, but
it only refers to the fact that the reasoning behind them became obsolete and therefore it had
to be modified to suit the contemporary situations and mind sets of the people.
Mr. Justice Holmes has been one of the great critics of the classical natural law theory. He
said, "The jurists who believe in natural law seem to me to be in that naive state of mind, that
accepts what has been familiar, and accepted by them and their neighbours, as something that
must be accepted by all men everywhere. Holmes believed that "Certitude is not the test of
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certainty", and that "we have been cock-sure of many things that were not so". Yet Holmes
had deep faith and firm convictions. "When I say that a thing is true", said he, "I mean that I
cannot help believing it. I am stating an experience as to which there is no choice. But as
there are many things that I cannot help doing that the universe can, I do not venture to
assume that my inabilities in the way of thought are the inabilities of the universe." Holmes
did not believe that his "can't help" decisions were based on principles of universal
application, for he said, "I love granite rocks and barberry bushes, no doubt because with
them were my earliest joys that reach back through the past eternity of my life. But while
one's experience thus makes certain preferences dogmatic for oneself, recognition of how
they came to be so, leaves one able to see that others, poor souls, may be equally dogmatic
about something else."

Evolution of Mans Knowledge

Human being is a species that has constantly developed through the ages. This development
that has brought us to the present stage is a result of deep thinking, quest for knowledge and
the perception of man. Observation and continuous studies are the means of this development
Man has observed that everything is a part of one system and works in an organised and
harmonious way. There is a kind of repetition in the rising and setting of the sun, in the
occurrence of the equinoxes, of the seasons, in birth, death and heredity among animals and
plants. He has learned certain mathematical and scientific principles which enable him to plan
and construct things. An architect can build a plethora of buildings that seem to be impossible
at the first instances like a bridge, a dam, a skyscraper or even a cathedral which is a place of
worship, a place where supposedly God resides. All this is done in accordance with known
principles of physics and design, and the structure will stand despite gravity and the elements
of earth. An engineer can make machines that fly, that has always been a concept related to
divinity, something that is not humanly possible; he can make pictures that move and talk and
not only this he can even transmit them by means of electrical waves. There are so many
professions that have in time evolved and made such things possible that man could not even
dream before, for example a physicist can convert atoms into energy which can in turn, a
chemist can create substances that prevent and cure disease that have earlier claimed so many
lives. It is therefore truly said that human mind is the masterpiece among all of natures
creations. In certain areas, physical things seem to be controlled by laws that man can learn,
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thus enabling him to understand and predict. Even if the order which these laws seem to
indicate does not exist objectively, but only subjectively, the laws have made it possible for
man to do things he otherwise could not have done? - to do thing things which the lower
animals cannot do.
Among so many other qualities that the human mind possess, it has the power to project itself
beyond the scope of its capacity as a clearing house for its sensory organs and by the process
of creative imagination to form new conceptions. These conceptions, serving as tentative
goals in investigation and thinking, frequently lead to new information and thus to a continual
growth in the field of knowledge.

Importance of Mans Outlook.

There is always a scope of development in whatever progress man makes, any discovery that
is made by man is never flawless. Change is essential, this is because at one point of time
man is not aware of all the intricate details of things, for example Newton was responsible for
various scientific discoveries, which changed the face of thought of man, provided a reason
behind things that were considered mere natural phenomenon. Further these discoveries were
not only studied but were improved by Einstein, he provided more authentic reasoning behind
things that Newton was unable to solve. Such is the nature of the Universe and its systems, it
never remains constant and with time Humans are able to find a reason behind the most
normal and unnoticeable things as well as major phenomenon that have constantly awed it.
This development is the reason that the definition of Natural Law has constantly being
changed and there is no unanimity in its definition, since one person is of the view that it is
because of divine intervention that man has to follow certain rules, on the other hand another
person may very well have a scientific reasoning behind what is happening. Therefore it
maybe safely said that it depends on the interpretation done by human minds that lead to the
inferences made by society at large.
This uncertainty is not only limited to the study of the universe and it systems but also
extends towards the social sciences. Human behaviour keeps changing with time and never
can one consolidated rule be enough to harmonize it. There is always a need for development
and this development is a result of constant moral evolution. It cannot be based upon theories
of natural law, which describe the inherent nature of man, as this nature changes with the way

a man may think. The reasoning behind an action is always important, it changes from time to
time and therefore it is based on evolution of mankind.
Mans Freedom of Choice or Natural Law
As already discussed the mind of man, is the most effective instrument to actually find the
truth behind the mysteries and problems of the universe that have remained unanswered . The
physical ways of man, his very existence is in no doubt being controlled by the laws of nature
but can this apply for his moral and abstract existence as well. Is it possible that his
knowledge, his capability to form a judgment and analyse his surroundings and the people
around him, all depend on some or the other natural law?
Mind is complex, it only follows certain habits to an extent, beyond which it tries to question
and change. This thirst for change or his ability to perceive emotions may be a result of the
birth of morality. It is a possibility that there could have been a man who made a moral
judgement, the first in the history of the world. At that time it might not have been so but
now it seems like it was a very significant decision of all times. However, it can only be
called a mere speculation.
The choice between the animal nature of man and the superiority of his judgement over it,
may be demonstrated through this example: A strong, ferocious cave dweller, whom we shall
call Xenophon, who, by the use of sticks and stones had killed many a man who had angered
him or stood in his way to food or woman, one day attacked Zeno, another husky. After a
terrific hand-to-hand battle, Xenophon knocked Zeno down, jumped upon him, and picked up
a boulder with which to bash in Zeno's head and finish him off. As Xenophon, sitting astride
Zeno, with uplifted stone looked into his countenance, which was to be effaced, a thought
flashed into Xenophon's brain. He had already proved his superiority over Zeno. It was not
now necessary to kill him. Maybe he ought to let him live. So Xenophon dropped the stone,
arose from his position astride his victim and walked off. He looked back once or twice at the
supine form, as if to question the decision he had made, and then moved on. Xenophon had
exercised a free choice between what his animal instincts dictated and what for some reason
or other he felt he ought to do. At the moment that he chose to do what he ought to do,
conscience was born.
This may be the first time that a man exercised his conscience. It may be presumed that this is
the point from where human being really became human.This however does not show any
kind of divine intervention, or inexplicable circumstances, it was simply a thought that
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erupted in Xenophons mind, from thereon he stopped being a brute applied his logic and thus
developed a conscience. This scenario lacks the inherent nature of man to show mercy or the
presence of natural laws that prohibits him from taking a life. It is merely a choice of thought
of how a man choses to act.

The Conflict between Nature, Man and Law.

There have been various incidents through time immemorial where the most devout and God
fearing people have inflicted so much pain and torture on other humans thinking that they are
most certainly following the will of God, the main reason being their difference in belief and
the way of life. Does that mean that the others have not been created by nature, they have no
right of free living? The oldest accounts of such incidents are the imprisonment of Galileo
and the burning of Bruno because they rejected the view that the sun revolved about the
earth. The reason of their belief was perfectly scientific yet it seemed unnatural to others that
they defied the commonplace belief, they went against Natural law. Through time, the
meandering stream of events, made what were once heresies, consolidated concepts of nature.
Things once incredible became commonplace. Such is the diversity and the rigidity of
thought of the human race.
These accounts maybe ancient but the practices of foregoing and ignoring the ideologies of
others is still very well prevalent in the comparatively modern era. This only shows that the
human mind has not even yet divested itself of its ancient frailties. As we speak about
condemnation of millions of innocent people to death in gas chambers, to imprisonment in
slave labour camps and to banishment in the salt mines because of the certitude of their
condemners as to their own racial superiority or the infallibility of their political systems.
India in itself is the example of such condemnation where still people from lower castes. in
various parts of the countries are not allowed to enter villages, to have equal rights as those
of the higher castes. There have been so many legislations and rights protecting and providing
equal rights to all the citizens of the country, take for example Articles 14, 15, 19 and 21, but
have they been implemented? It raises a lot of doubts because the mind of the Indian people
is still not ready to shed their primitive ideologies. It cannot be said that it is supported by the
whole population though they belong to the same culture, there is therefore a conflict
between the morality of people and the natural state of things.

Should not this experience give us pause in asserting the universality of what at the moment
appears to us to be true?
Exponents of classical natural law are usually able to find or create natural law principles
which support what they want to believe. For example in America, before the adoption of the
Constitution, both the followers and critiques of federalism claimed support from natural law.
Before the Civil War both pro-slavery and anti-slavery advocates invoked natural law as the
basis for their views. In Green v. Alabama, 1 the Supreme Court of Alabama affirmed the
conviction and sentencing of a white woman to two years in the penitentiary for marrying a
Negro contrary to a statute of that state. In support of its conclusion the court said, "Why the
Creator made one white and the other black we do not know; but the fact is apparent the races
are distinct, each producing its own kind and following the peculiar law of its constitution.
Conceding equality yet God has made them dissimilar. However scientifically speaking,
there are biological reasons behind the difference of appearance among various people based
upon their cell structure and the location in which they reside. Thus here again the argument
that it is nothing but natural law fails to consolidate itself.

A Law of Nature -Man Is Diversified

However, there is another concept of natural law that avoids the pitfalls of the classical
theory, which seems to me more tenable than the old and which is also completely compatible
with the views of Holmes. This theory recognizes that men naturally differ widely in ability
and experience, in their interpretation of objective phenomena and in their emotional
reactions to stimuli. There is wide variety in men's powers of imagination, in their sensitivity
to beauty, poetry, art and music, in their attitudes toward love, sympathy, sacrifice, charity
and honor, and in their response to religious rituals. These capacities and attitudes change
from time to time, from nation to nation, from group to group, from family to family, from
man to man. Man is not like the robin, the same now as always, the same here as elsewhere,
one individual like every other individual. It is contrary to his nature to have uniformity in
aptitude, in preference, in feeling, in taste, in attitude toward fellows. By nature his thought
does not conform to any given standard. Is it not then in accordance with the law of nature
that men, differing in background, tradition, experience, taste and aptitude should also differ
in ideas, judgments, ideals and faiths? Is it not as much the law of nature for men to be thus
1 58 Ala. 190 at 194 (1877).
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diversified as it is for robins to be uniform in their pattern of existence? This attribute sets
man off from other animals. Why should it be contended, as it is by some, that this attribute is
contrary to the law of God, and that unless man fits his thought and faith into a specified
pattern, he has committed an offense against the law of nature? The non-acceptance by some
men of this characteristic of diversification in man as a part of the law of nature has caused
many of the world's most oppressive tyrannies and bloodiest wars. Are we even now aware of
man's true nature? The natural law which seems deducible from the diversified nature of man
is that each man ought to recognize and accept as natural the differences in other men and not
forcibly try to eradicate them because they are incompatible with his own beliefs. Experience
suggests that respect and tolerance for the beliefs of one another, rather than the acceptance of
the absoluteness of any one belief, is the key to truth, the way to peace and the preservation
of civilization. In view of the vastness of man's ignorance and the frequency of his past
errors, it seems reason able to believe that eternal and in fallible rules for his guidance have
not yet evolved and that it is folly for him to be dogmatic concerning such matters. This very
process has caused man, in many in stances, to repudiate laws previously believed to be
absolute. While it seems evident that the human mind has moved toward truth rather than
away from it, it seems obvious that truth has not yet been attained. It should be clear that this
philosophy involves struggle, competition and strife.

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Conclusion
We have seen that in certain regions, the behaviour of physical things seems to be controlled
by law, but this law may not be real or objective, but only a mental device to enable the mind
to comprehend what it sees. We have seen also that the behaviour of biological creatures, in
many respects, seems to be controlled by laws. These laws also may not be objective but only
subjective. They are true only insofar as our knowledge goes or as judged by our frame of
refer ence. We are therefore not war ranted in saying that these laws are absolute. Man,
differing from things and other animals, is capable of abstract thought and free choice. Laws
having to do with his own conduct are not merely physical or biological. Within limits, man
has power to make law which governs his own behaviour. These laws deal with what he
ought to do rather than simply with what he does. They are entirely the product of his mind,
but since the mind has the capacity to remember events, it takes experience into account in
making its choice of laws. These laws are also subjective, not in the sense that they are
devised for understanding behaviour, but in the sense that they are devised to guide
behaviour. It is not my purpose to trace the growth of law. Suffice it to say that conduct that is
found to be good, useful and needful gradually becomes habitual, traditional and customary,
and finally becomes formal ized in court decisions, legislation and codes. 2 Frequently this
process is reversed. If a new traffic plan is needed for a metropolitan area, it does not grow
out of custom. A plan involving stop lights, one-way streets and no-left turns is enacted and
put into effect. If the new plan is found to be good, general compliance will follow. Here the
pattern of conduct is determined by the law. So not only does custom make law, but law
makes custom. Whether the law against murder came before or after the custom against
murder it is unnecessary to say. In either case, someone first had to conceive the idea that
murder was wrong. In either case, the law resulted from needs. With occasional regressions
during the last 5000 years, law would seem to have gone through a conscious evolutionary
development. I believe that this is a positive philosophy. It is based upon the postulate that
God has endowed man with an expanding capacity to determine what is moral and then by
effort to adhere to it. If rules are good, the mind of man is such that it can be persuaded that
2 Fuller believes that the "common law imperceptibly becomes a part of men's common beliefs and
exercises a frictionless control over their activities which derives its sanction not from its source but
from a conviction of its essential Tightness." Lon L. Fuller, The Law in Quest of Itself (1940) 134.
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they are good. In general those ideas which are the fittest will survive. Those that are unfit
will die. Or as Holmes put it, "The best test of truth is the power of the thought to get itself
accepted in the competition of the market place." 3 Hence, by this philosophy, man accepts
those moral values that have stood the test of time and experience and uses them as the
foundation upon which, by his own efforts, to build toward a higher destiny.

3 Abrams v. U. S., 250 U. S. 616, 630.

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Bibliography
Books:
1. Dr. N.V. Paranjapae, Studies in Jurisprudence and Legal Theory, 7th Edition, Central
Law Agency.
2. P J Fitzgerald, Salmond on Jurisprudence, 12th Edition, Universal Law Publishing Co.
Ltd.
Journals:
1. George W. Goble, Nature, Man and Law, American Bar Association Journal
Vol. 41, No. 5 (MAY 1955), pp. 403-407, 473-476.
Websites:
1.
2.
3.
4.

www.books.google.co.in
www.jstore.com
www.catholicculture.org
www.mit.edu

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