Introduction to Traditional and Modern Natural Law Theories

Shivaraj S. Huchhanavar
I
INTRODUCTION
The ‘Law’ like language and culture is a changing variable and it is shaped by social,
associational, economic and political contexts. Due to its vividness and variable
content, ‘Law’ has remained as one of the difficult concepts to define, yet there is no
end to an unrelenting endeavour to provide the most fitting and acceptable
definition of the law. In search of a comprehensive answer to the questions relating
to meaning, source, subject, aspect and force of law, many jurists, since time
immemorial, invested their energies and expertise in foregrounding various
dimensions of law; it has led to many theories and schools of thoughts. Such theories
may be classified into (i) Natural, (ii) Analytical, (iii) Historical, (iv) Philosophical (v)
Sociological, and (vi) American realism. In this Module, our focus will be on Natural
Law Theories.
This paper is set out to serve three purposes–(i) to familiarize the reader with
various interpretation of natural law; (ii) to study (briefly) various theories on
natural law starting from ancient Greek, so that the reader can appreciate the shift of
natural law from ‘dictate of God’ to dictate of ‘right reason’; and (iii) to appraise the
revival of natural law in the 19th and 20th century along with infusion of new
dimensions by Brian Bix in the study of both natural law and legal positivism.
First part of the module will deal with the meaning of the natural law, the second
deals with various theories and the last segments starts with a revival of natural law
and concludes with Brian Bix’s views on natural law.
II
MEANING OF NATURAL LAW
‘Natural Law’ is a time-honoured approach to identify the ‘method’ through which
legal principles can be deduced and it is also used to determine the ‘content’ of law in
order to meet the subjective conditions of human existence and to solve the
contemporary problems in the society. Natural Law has various other names like
‘Divine Law’, ‘Moral Law’, ‘Universal Law’, ‘Law of Reason’, ‘Common Law’, ‘Higher
Law’ or the ‘Law of Nature’ etc. However, it is important to note that as such there is
no single theory as ‘Natural Law Theory’ and there are three schools of natural law
theory viz., Divine natural law, Secular natural law, and Historical natural law.
The divine natural law represents the system of principles believed to have been
revealed or inspired by God or some other supreme and supernatural being. The
secular natural law represents the system of principles derived from the physical,
biological, and behavioural laws of nature as perceived by the human intellect and
elaborated through reason. The historical natural law represents the system of
principles those evolved over time through the slow accretion of custom, tradition,
and experience.
Natural Law is defined as an unwritten law as against the written law. In other
words, natural law is the name of a body of principles revealed by nature or reason or
God. It emanates from the source superior to any human authority (the sovereign).
Blackstone described the natural law as “This law of nature, being coeval with

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mankind and dictated by God himself, is, of course, superior in obligation to any
other. It is binding over the entire globe in all countries, and at all times: no human
laws are of any validity, if contrary to this; and such of them as are valid, derive all
their force, and all their authority, mediately or immediately, from this original.” (Sir
William Blackstone, Commentaries on the Law of England).
Salmond describes the natural law as, “the idea that in reality law consists of rules
and in accordance with reason and nature has formed the basis of a variety of natural
law theories ranging from classical times to the present day. The central notion is
that there exist objective moral principles which depend on the essential nature of
the universe and which can be discovered by natural reason, and that ordinary
human law is only truly law in so far as it conforms to these principles. These
principles of justice and morality constitute the natural law, which is a valid
necessity, because the rules for human conduct are logically connected with truths
concerning human nature... a human law at variance with natural law is not really
law at all, but merely an abuse or violation of law” (P.J. Fitzgerald. Salmond on
Jurisprudence 15)
As there are numerous definitions of natural law, it is difficult to look into each one
them, to understand the concept more clearly let us identify salient features
of natural law. Which are enumerated as under-,
Natural law is–
(i) the divine Law (jus divinum, Stoics)
(ii) the Law of Reason (Cicero)
(iii) the unwritten law (Christian Tomasius)
(iv) the universal or common law (jus commune, jus genitum)
(v) the ‘Eternal’ Law breathing from the beginning of the world,
uncreated and immutable
(vi) the blend of morals and ideals i.e. the Natural law is a body of
unchanging moral principles regarded as a basis for all human
conduct; and
(vii) natural law believes priori method, priori means accepting
certain legal principles without an enquiry and observation.

The natural law, ever since the sense justice struck the human mind, has served as a
source of many freedom movements of justice, equality and liberty. It is rightly
claimed that natural law inspired English and French revolutions and also the
American freedom fight, including freedom movements in 19th and 20th century
against the colonization. It is the foundation of universal order governing all men
and also of the inalienable rights of the individual. The natural law is the antidote to
legal rigidity; it provides much-needed flexibility to law and acts as a catalyst to fight
against tyrannical and unjust positive (man-made) laws. Thus, by overpowering the
critique, the natural law like an elliptical banyan tree covered with creepers stood
against the tests of time. With creepers losing ground, it once again revived with

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its variable content. Natural law is like a song sung by many with varied lyrics and
rhythms, this variance can be understood by listening to legendary singers (jurist) of
all Ages. Let us look at the exalted history of natural law, starting with ancient
theories of Greek.
III
NATURAL LAW: THEORIES

Ancient theories of the Greek Period

It is believed that the Greeks were the first ancients to expound the natural law
principles; it is very interesting to see that in the Greek period not only the
philosophers but even poets scripted the content of natural law. I shall illustrate this
poetic contribution by the examples of Hesiod and Homer.
Hesiod: Hesiod, as the Greek legend says, is the first poet to have coined the word
‘law’. His most famous poem, Works and Days, which he wrote to protest against the
injustice of which he had been the victim; he was of the opinion that “fishes and
beasts and winged birds devour one another, since justice is not in them, yet to men
he has given justice, and best it is by far. For if one has a mind to know and to speak
what is just, to him far-seeing Zeus (God) gives a good life; but whosoever wilfully
bears false witness and forswears himself, and therein offending justice suffers hurt
incurable, his offspring in time to come are left the more in darkness; but the man
whose oath is true, his offspring are the better in time to come." (Hesiod, Works and
Days, 274-285). The advice of Hesiod is very clear; men shall act in accordance with
his human nature as he is not deprived of the sense of justice.
Homer: Homer is considered to be the source of all poetry, but he does not use the
word law, yet he clearly sets forth, in the first book of the epic poem, the problem of
justice and injustice, of right and wrong. For him, justice is of divine origin; he
declared that "the judges who under Zeus preserve the ordinances." (Homer, The
Iliad -I, 237-239)
Homer gave an essential place to law and said the law was to be found in the
Themistes given by Zeus to the Kings (the Themistes were the divine precepts on
which human justice had to be based). Along with the divine dictums, Homer upheld
the importance of customs and traditions. Later, Solon, Graecian, Theognis,
Heraclitus, Aeschylus, Sophocles and others relied on nature as a source of law, and
they proclaimed natural law is wise, permanent and all-pervading.
Sophists: A class of teachers of fourth and fifth century BC,
teaching arête (excellence or virtue) to young Athenians, encouraging them to be
efficient and skilful citizens of Athens. Protagoras is generally regarded as the first of
these professional sophists. Others include Gorgias, Prodicus, Hippias,
Thrasymachus, Lycophron, Callicles, Antiphon, and Cratylus. Generally, they were
not directly dealing with law, being peripheral to politics and public life ‘law’ often
became a subject matter of Sophists discourse. The Sophists developed a scepticism
in which they recognised the relativity of human ideas and rejected absolute
standards. They declared the basis of law was the self-interest of the subject, and are
essentially the product of expediency.
Socrates: A rational thinker and an enlightened master believed in human ‘insight’,
unlike sophists, he never based his argument on the basis of human expediency, and

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was not in favour of the opinion that unjust laws shall not be followed, he was of the
view that ‘insight’ reveals to everyone what is goodness and badness, thus one shall
act in accordance with his ‘insight’. He defined virtue as the fundamental ethical
conception and preached ‘virtue is knowledge and whatever is not known is sin’.
Thus, for him, virtue is a touchstone to identify absolute and eternal moral rules.
Plato (427-347 BC): Plato, a pupil of Socrates, opined that God gave to all men in
equal measure a sense of justice and ethical reverence so that they can harmonize
their interest. He said, ‘to mind one’s own business and not to be meddlesome is
justice’. He enunciated the doctrine that justice is a harmony of man’s inner life and
is the quality of justice and it is achieved by reason and wisdom over desires. Thus,
he says the administration of justice is to be given to the philosopher kings whose
education and wisdom are such that there is no necessity to link them up with a
higher law. He extended his concept of ‘ideal state’ by saying the Republic wherein
with a perfect division of labour ‘each man ought to do his work in the station of life
to which he is called by his capacities.
Aristotle (384-322 BC): Aristotle declared man is a political animal and as wider
needs of man can be realised in communities and in the state, the state is a creature
of nature. Thus, it is the primary function of the state is to secure the good life to its
subjects; it can be accomplished through the virtuous living of the subjects. He says,
“He who bids the law or rule, may be deemed to bid God and reason. Reason alone
rule, and who bids the man rule adds an element of the beast”. Aristotle defined law
as ‘reason unaffected by desires’ and man is endowed with active reason which
distinguishes him from all other parts of nature. He is capable of farming his will in
accordance with the insight of his reason. Reason and free will are man’s inherent
qualities and a will distinguishes virtue and vice. When a man lives according to
reason, he lives “naturally”. Thus, the law of nature becomes identified with a moral
duty.
Aristotle distinguished ‘natural justice’ from ‘legal justice’. He defined natural justice
as that which everywhere has the same force and does not exist by the people
thinking this and that, he opined, the positive law should try to incorporate in itself
the rules of ‘Natural Law’.
Natural Law in ancient Rome
Romans were pragmatic, even to the field of law they adopted the systematic and
analytic approach. Natural law in Rome was not confined to theoretical discussions,
in the early Republic, Plebeians drew a code of Law known as ‘XII tables’. These
‘Tables’ are based on the customary law of Rome.
Romans have three division of law viz., jus civile or civil law of the Rome applicable
only to Romans. Jus genitum, the law applicable to foreigners, later it is shaped into
law of nations i.e. International Law, and, jus naturale was the law of nature fixed,
immutable, higher to all human laws derived from the dictate of right reason.
Natural law principles are applied by Roman magistrates commonly to both Romans
and foreigners. It was used to make jus civile more flexible. In case of conflict
between ‘natural law’ and ‘positive law’ general view was that, positive law to be
discarded.
Cicero (106-43 BC): Cicero says that while divine reason is inherent in the universe,
it is more or less identified with the physical ordering of the universe. The man with

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his faculty of reasoning stood superior; in the eyes of nature, all men are equal. Thus
he says, “True law is right reason in agreement with nature; it is of universal
application, unchanging and everlasting; it summons to duty by its commands, and
averts from wrongdoing by its prohibitions. And it does not lay its commands or
prohibitions upon good men in vain, though neither have any effect on the wicked. It
is sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and
it is impossible to abolish it entirely. We cannot be freed from its obligations by
senate or people, and we need not look outside ourselves for an expounder or
interpreter of it. And there will not be different laws at Rome and at Athens, or
different laws now and in the future, but one eternal and unchangeable law will be
valid for all nations and all times, and there will be one master and ruler, that is,
God, over us all, for he is the author of this law, its promulgator, and its enforcing
judge. Whoever is disobedient is fleeing from himself and denying his human nature,
and by reason of this very fact, he will suffer the worst penalties, even if he escapes
what is commonly considered punishment”, (Brian Brix, Traditional Natural Law
Theory, 112).

Natural Law: Medieval Age

St. Thomas Aquinas (1225-1274): The most influential writer within the traditional
approach to natural law was undoubtedly Thomas Aquinas; his most valuable work
is Summa Theologica. He defined law as “an ordinance of reason for the common
good made by him who has the care of the community and promulgated”. He divided
law into four categories, (i) Eternal Law or Lex aeterna: which is one and
unchangeable which he called as divine wisdom. (ii) Natural Law (Lex Naturalis): is
that part of the eternal law which can be revealed by reason. Aquinas held that men
are a rational animal. By reflecting on his own impulses and nature, man can decide
what is good. (iii) Divine Law (Law of Scriptures)- it is eternal law revealed through
scriptures, and the church is the authoritative interpreter of it. (iv) Human Laws
(Lex Humana): Aquinas considered the state as an institution meant to supply the
necessary needs of men and to procure their safety and wellbeing. Such law made by
the state must be in conformity with natural law, “every human law has just so much
of the nature of law, as it is derived from the law of nature. But if in any point it
deflects from the law of nature, it is no longer a law but a perversion of law”. Thus,
he gave the phrase “Lex iniusta non est lex” an unjust law is not a law, and such
unjust laws need not be followed.
Hugo Grotius (1583-1645): Grotius provided a new dimension to natural law, he who
transcended natural law beyond God. He declared natural law is rooted in the nature
of men and would exist even if there were no God. Grotius asserted the
independence of natural law from God and a quality of man. He defined natural law
not just based on reason but on right reason. Grotius tried to secularise law and
proclaimed sovereign is bound by natural law.
Grotius sowed a seed of ‘social contract’. He said State originates in a contract and by
virtue of it each individual surrenders his sovereignty to the ruler. He opined that the
basis of natural law is consent; likewise states should unite to form a society of
states, as there is no sovereign to control the relations of nations, must be based on

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equality, fairness and justice for all the nations of the world. Thus, for the betterment
of whole world “pacta sunt servanda” (treatise must be respected and promises
must be kept in good faith) must be the base of the law of nations/international law.
Social Contract theory and Natural Law
The concept of ‘social contract’ was originated by Plato, but it was further expounded
by political thinkers of the 19th century, prominent among them are Thomas
Hobbes, John Locke and Jean Jacques Rousseau. ‘Social contract’ is the hypothetical
construction of reason, it assumes that man in primitive society had neither the
government nor any law, they lived in the natural state. Hobbes writes that the life of
primitive men was full of chaos, unhappy and unsettled; to the contrary, Locke was
of the opinion that there was no threat to the life but there was no security to
property. Interestingly, Rousseau says, ‘freedom, happiness, equality and liberty’
exist in primitive societies.
In spite of the differences relating to the background of the theory, there are many
commonalities amongst all three contractualists. They argued men entered into an
agreement known as ‘pactum unionis’ for the protection of their lives and property,
this contract gave birth to society. Thereafter, men entered in a second agreement
known as ‘pactum subjectionis’ by which the people undertook to obey an authority
and surrendered the whole or part of their freedom and rights and the authority of
the government.
The social contract theory was presented to regulate the authority of the sovereign,
who was claiming unlimited, unrestricted and uncontrolled power, which in turn led
to a gross violation of individual’s liberty, so the primary aim of these thinkers to
provide a philosophical base to check the unlimited power of the King. Thus, Hobbes
argues that a superior authority must command obedience, and his commands in no
case disobeyed by the people. But he suggests it is advisable for the King to be under
‘natural law’. Whereas, Locke claimed that, individuals through social contract did
not yield all the rights, but only the power to preserve order and enforce the law of
nature. The individual retained the ‘natural rights’ to life, liberty and estate, for they
were the natural and inalienable rights of man. Thus the primary purpose of the
government is to uphold and protect the natural rights, but if it ceases to do that, the
government may be overthrown. Locke attached great importance to the natural
liberties of an individual thus he was rightly called as the campaigner of human
rights.
Rousseau, with more perfection, argued that social contract means, “each giving
himself to all gives himself to nobody; there is not one associate over whom we do
not acquire the same rights which we concede to him over ourselves, we gain the
equivalent of all that we lose, and none, power to preserve what we have”.
Accordingly, he argued it was to “general will” all men surrendered their liberties
and in turn, they were granted with civil liberties, thus, it was general will instead of
right reason which became the standard of right, justice and equality.
He writes the Government and law are both dependent upon general will, he equated
‘general will’ with sovereignty’.
The revival of Natural Law

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Industrialization, fuelled by advancement in science, steered empires of
immeasurable might. As the spiritual needs of the individuals are overpowered by
material needs, the church conceded powers to the monarch, this paved way to
concentration powers in the hands of the sovereign. Therefore, in 16th, 17th and
18th century, natural law theory remained less forceful. However, for various
reasons, towards the end of 19th century, Natural Law Theories regained
importance. The revived natural substantially differed in certain aspects, now the
natural law is relative and non-abstract, and is value loaded, value-oriented and
value conscious and not-unchangeable; it is changing and varying, not permanent
and everlasting. Therefore, it is rightly called as ‘natural law with a variable content’.
Rudolf Stammler (1856-1938): Stammler argued that there cannot be universal rules
(in the strict sense) on the same social problems because content and social
backgrounds of such problems are empirically conditioned and changing with
changing times and situations. So, there is no single rule of law whose positive
content can be fixed a priori. According to him, ‘Law is necessarily a priori because it
is inevitably implied in the idea of cooperation. He defined law as “a species of will,
other-regarding, self-authoritative, and inviolable.” Every rule is a means to an end,
so one must seek a universal method of making just laws. A just law is the highest
expression of man’s social activity.
The law of nature means to him a ‘just law’ and a ‘just law’ is that which harmonises
the purposes within the framework of social life, and such harmony varies according
to time and place, so laws must be variable on their content to meet these varied
needs of society.
Joseph Kohler (1849-1919): Kohler asserts, ‘mankind constantly progresses in
culture in the sense that permanent cultural values are produced, and since culture is
a growing variable, the law is a growing and dynamic variable’. He says the law is not
an automatic product, for new values have constantly to be created according to the
march of civilization.
The society, in the course of evolution, grows socially, economically, politically,
morally and culturally, if the law is blended of all these, it serves better. There is no
eternal law. The law that is suitable for one period is not so for another period, we
can only evaluate every culture with its corresponding system of law. Kohler built his
theory on the idea that law is a process of evolution, and that law must change with
time and vary with the cultures of countries.
John Rawls: John Rawls propounded ‘justice’ oriented theory and his core aspect
was ‘fairness’. He says fairness is reasoned prudence and principles of justice are
dictated by prudence. He centred his theory of justice on hypothetical ‘original
position’, where people are assumed to know certain things, like general psychology
and the social science. John Rawls argues that people in the original position choose
basic principles of justice, excluding their self-interest and otherworldly needs. His
conclusion was that prudent people would choose liberty and the common good in
place of their own self-interest, to which he called as a basic principle of justice and
he generalised human wants into “primary social goods” which include basic
liberties, opportunity, power and a minimum of wealth.
John Rawls laid down two basic principles of justice which the State should satisfy to
ensure justice to its people, which are,

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 (i) First: each person is to have an equal right to the most extensive basic
liberty compatible with a similar liberty for others;
(ii) Second: Social and economic inequalities are to be arranged so that (a)
they are to be of the greatest benefit to the least-advantaged members of
society, consistent with the just savings principle (the difference
principle).
(b) offices and positions must be open to everyone under conditions of fair
equality of opportunity.

John Finnis: Finnis advocated a very sophisticated theory of natural law. He says
that a theory of natural law claims to be able to identify the conditions and principles
of right-mindedness, of good and proper order among men in individuals conduct.
He viewed justice and moral authority of law is the import of natural law. According
to him, natural law consists of two sets of principles.
(1) Basic Values those are good for Human Beings:
Example: knowledge, aesthetic experience, sociability, practical
reasonableness and religion, etc.
(2) Basic requirements of practical reasonableness are the authority,
justice, moral authority, and Rule of Law

In his ‘Natural Law and Natural Rights’, Finnis accepts the law emanates from the
eternal law and is self-evident based on experience and reflection.
Brian H. Bix: Natural Law is the mode of thinking systematically about the
connections between the cosmic order, morality, and law, which, in one form or
another, has been around us for thousands of years (Brain Bix, Natural Law: The
Modern Tradition). Bix, like Finnis, is more dynamic in his approach and
disfavoured extreme construction of both legal positivism and traditional natural law
theories, he is of the opinion that the borderline of difference between natural law
and positivism is wrongly drawn and unwarranted line of differences were raised by
too much digging in ‘is’ and ‘ought’. He is of the view that the devoid between natural
law and legal positivism sometime is raised by misinterpretation of traditional
natural law doctrines. He explains it with example of Aquinas
Phrase “lex iniusta non est lex” which is generally construed to mean ‘unjust law is
no law’, Bix says, a more reasonable interpretation of statements like "an unjust law
is no law at all" is that unjust laws are not laws "in the fullest sense." As we might say
of some professional, who had the necessary degrees and credentials but seemed
nonetheless to lack the necessary ability or judgment: "she's no lawyer" or "he's no
doctor." This only indicates that we do not think that the title, in this case, carries
with it all the implications it usually does. Similarly, to say that an unjust law is "not
really law" may only be to point out that it does not carry the same moral force or
offer the same reasons for action as laws consistent with "higher law." "...This law is
unjust; it is not a law in the fullest sense, and therefore citizens can in good
conscience act as if it was never enacted; that is, they should feel free to disobey it."
This is a common understanding of the idea that an unjust law is no law at all...”
(Brian Bix, Traditional Natural Law Theory).
Modem legal positivism developed in reaction to certain (less sophisticated) versions
of natural law theory. The reality is that they are more complementary than
contradictory (1) natural law theory reduces to the claim that there is objective moral

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truth and that this truth should be used to evaluate our political and legal
institutions as well as our individual choices, and (2) legal positivism reduces to the
claim that there is a possibility of and value to a descriptive or conceptual theory of
law separated from any evaluation of its (moral) merits, then there would seem no
reason why one could not support or advocate both (Brian Bix, On the Dividing Line
between Natural Law Theory and Legal Positivism). Through his dynamic and
rational arguments, Bix tried to reconcile both Natural law and Legal positivism, (up
till now) irreconcilable, this approach though originated by Finnis and others, Bix,
gave very loud voice, which hopefully would bring a novel perspective to legal theory.
IV
CONCLUSION
This module is an introduction to western theories on natural law; efforts were made
to include all prominent theories on the subject but with a view to keep the topic
simple certain versions of natural law are avoided. It is advisable that the reader
shall, along with theories presented in this module must also study Pufendorf,
Immanuel Kant, Francois Geny, Lon Luvois Fuller, H.L.A. Hart and others natural
law theories. However, the reader must not forget that in the ancient cultures, like
India and China, one can find very systematic expositions on natural law. For
various reasons, no systematic efforts were made to revive these theories. For deeper
study, it is advisable to read juristic views on ancient Indian natural law theories.

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