INTERNATIONAL ISLAMIC UNIVERSITY ISLAMABAD

FACULTY OF SHARIAH AND LAW

DEPARTMENT OF LAW

GROUP ASSIGNMENT

GROUP 2

TEACHER NAME: STUDENT NAMES ALONG WITH REGISTRATION

NUMBERS:
Mr. Muhammad Hanzalah Raees
1. MUHAMMA PANJAL (623-FSL/LLB5Y/S22)
SUBJECT: 2. ZAFARULLAH (624-FSL/LLB5Y/S22)
3. MUHAMMAD HASSNAIN ALI
Jurisprudence – I (Legal Theories)
(626-FSL/LLB5Y/S22)
SECTION: 4. MOHIZ UR REHMAN (627-FSL/LLB5Y/S22)
5. MUHAMMAD HASSAN IQBAL MASOOD (628-
(A)
FSL/LLB5Y/S22)
6. TANVEER AHMED ZIA (630-FSL/LLB5Y/S22)

DATE OF SUBMISSION: 31st MAY 2024

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 TOPIC:
Development of Natural Law Theory in Renaissance period:
Decline and its Revival

Introduction

The concept of Natural Law has a rich history spanning over 2,500 years. It asserts that there
exists an objective moral order inherent in the natural world. This theory posits that certain
universal moral principles govern human behavior and contribute to the development of just
laws. Natural law is not man-made; rather, it derives from nature, divine sources, and reason.
The roots of natural law theory can be traced back to ancient Greek and Roman philosophy.
Thinkers like Aristotle and Cicero explored the idea that ethical norms are embedded in the
fabric of the universe. These principles guide human conduct and serve as the foundation for just
legal systems. The Renaissance period (14th to 17th centuries) witnessed a flourishing of natural
law theory. In England, especially, it reached its zenith. During this time, scholars and jurists
expanded upon the ancient ideas, emphasizing the importance of natural rights (also known as
ius naturale) and the inherent moral order. The Renaissance thinkers grappled with questions
related to justice, ethics, and the role of law in society. However, as history unfolded, natural law
theory faced challenges. The secularization resulting from the Renaissance and Reformation led
to skepticism about unchanging, universal moral codes. The Enlightenment era emphasized
reason and empiricism, which further marginalized natural law jurisprudence. Legal realism in
the 20th century shifted focus to empirical observations of legal practice, sidelining natural law.

What is Natural Law?

According to Salmond "By natural law or moral law is meant the principles of natural right and
wrong the principles of natural justice if we use the term justice in its widest sense to include all
forms of rightful action." Here is a paraphrase of the passage:
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Natural law has been described using various terms like divine law, the law of reason, universal
or common law, and eternal law. It is considered the command of God imposed upon humanity.
Natural law is established by the same reason that governs the world. It is an unwritten law, not
inscribed on physical tablets, but rather written in the hearts of people by nature itself. This law
is universally obeyed across all places and peoples. Natural law has existed since the beginning
of the world, making it eternal in nature.

The Renaissance Period: The Rise of Natural law theory

From time to time, great writers have expressed their views on natural law or the law of
nature. A reference in this connection may be made to the views of Aristotle, Cicero,
Hobbes, Grotius, Pufendorf and Blackstone. The Renaissance humanists contributed little
original theory to natural law, focusing on rediscovering classical texts like Cicero rather than
developing new ideas. The most positive development came from the "second flowering" of
scholasticism, which engaged in re-thinking natural law against nominalism and Protestantism.
Scholastic thinkers like Vitoria, Suarez, Soto revitalized natural law philosophy by going back to
Aquinas' framework while developing new justifications and applications. They defended natural
law concepts challenged by nominalism like knowability of essences and intrinsic morality
discerned by reason. Scholastic thinkers also responded to Protestant ideas that depicted human
nature as totally depraved and rejected intrinsic goodness/evil of acts. Figures like Suarez
systematized natural law across domains like law, morality and politics in works disseminated
widely in universities. This Renaissance of scholastic natural law contributed by saving the idea
from nominalism and developing what Aquinas left implicit, for problems of their time. It made
natural law a universal rational standard again during the cultural rebirth of classical antiquity in
Europe. This scholastic revival made an enduring contribution to revitalizing the natural law
tradition essential to Western civilization.

According to Dias and Hughes: Natural law doctrines have served important social needs over
time. Maintaining stability against change (e.g. in ancient Greece and medieval periods).
Inspiring change and reform against entrenched stability (e.g. after the Reformation and
Renaissance)

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The Renaissance period saw a lasting distinction drawn between positive (enacted) law and
moral/natural law. It also brought about the emancipation and increased significance of the
individual. A strong connection was established between positive law and the freedom/rights of
the individual.

1.1 The Emergence of a New Perspective on Natural Law:

The Renaissance period witnessed the emergence of a new perspective on natural law that
departed from the prevailing medieval Scholastic tradition. While Scholastic thinkers, such as
Thomas Aquinas, had grounded natural law in the divine command and the teachings of the
Catholic Church, Renaissance scholars sought to develop a more secular and humanistic
understanding of natural law.

This new perspective emphasized the role of human reason and the inherent dignity of the
individual in the formulation of natural law. Rather than relying solely on divine revelation or
ecclesiastical authority, Renaissance thinkers argued that natural law could be discerned through
the exercise of human reason and the recognition of the fundamental characteristics of human
nature. This shift towards a more autonomous and secularized conception of natural law laid the
groundwork for the modern natural law tradition that would emerge in the centuries to come,
with influential thinkers like Hugo Grotius and Samuel Pufendorf building upon this foundation.

Key Contributions of Natural Law Philosophy

1. John Locke:
o Locke emphasized the nature of humans as creators and property owners. His
ideas extended the concept of natural rights beyond previous discussions of
natural law. Locke believed that individuals have inherent rights to life, liberty,
and property. These rights are not granted by society or government but are
derived from nature itselfHis work laid the groundwork for modern philosophical
thought and influence. subsequent thinkers.

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 2. Other Renaissance Philosophers:
o Francisco Suárez:

Spanish Jesuit philosopher who contributed to the development of natural law

theory. He explored questions related to moral norms applicable across time and
place.

o Hugo Grotius:

A Dutch jurist and philosopher who emphasized the idea of natural law as a set of
universal moral norms.

o Thomas Hobbes:

Although known for his political theories, Hobbes also discussed natural law. He
believed that natural law arises from self-preservation and the pursuit of peace.

o Samuel von Pufendorf:

A German philosopher who further developed natural law theory, emphasizing

the importance of reason and social cooperation.

Natural law theory in renaissance: Decline

Arguments based on natural rights doctrine were not always justified, as seen with
attempts to justify slavery as a "natural right." Using natural law terminology can obscure
the ability to critically evaluate laws based on factors beyond just moral/justice grounds
(e.g. efficacy, convenience, simplicity). Invoking natural law to find people guilty of
violating it, even when their actions were legally innocent at the time, goes against basic
principles of criminal liability.

Natural law thinking had a profound impact - both positive and problematic - on the evolution of
law and legal philosophy during the Renaissance period.

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Understanding the Decline of Natural Law Theory

The decline of natural law theory marks a significant intellectual shift in the history of legal and
moral philosophy. Rooted in ancient and medieval thought, natural law posited that certain
ethical principles were inherent in the nature of things and universally applicable. However, as
the Enlightenment unfolded and societal complexities increased, natural law faced critical
challenges. In this formal exploration, we delve into the factors contributing to its decline and the
emergence of alternative theories.

Critique of the Social Contract Theory

 The 18th-century social contract theory, championed by thinkers like Rousseau, Locke,
and Hobbes, postulated that individuals voluntarily entered into a social contract to
form a society. In this contract, they surrendered certain rights in exchange for
protection and order.
 However, this individualistic conception of society clashed with emerging collectivist
and nationalist ideologies. Critics questioned whether such a simplistic contract could
adequately address the complexities of human interactions and societal structures.

Complexity of European Society

 As European society became increasingly intricate, scholars recognized the need for a
more nuanced understanding of societal issues.
 The abstract and individualistic nature of natural law theory proved inadequate in
addressing the multifaceted challenges posed by diverse cultures, historical contexts, and
evolving norms.

Undermining the Foundations

1. Montesquieu (1689-1755):

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 o Montesquieu’s work, particularly “The Spirit of the Laws,” emphasized the
importance of context and historical development. He questioned the universality
of natural law principles.
o His focus on comparative analysis and the influence of climate and geography
challenged the rigidity of natural law.

2. David Hume (1711-1776):

o Hume’s skepticism extended to natural law. He argued that moral principles were
not universally fixed but shaped by human sentiments and cultural norms.
o His critique weakened the absolutist claims of natural law theorists.

3. Jeremy Bentham (1748-1832):

o Bentham, a fierce critic, famously dismissed natural rights as “nonsense upon
stilts.”
o He argued that the principle of absolute equality was unattainable and that liberty
could not coexist with subjection.

Rejection of Natural Law Theory

Morality Beyond Religious and Scientific Frameworks

 The Enlightenment era witnessed the separation of morality from religious dogma and
scientific explanations.
 This shift led to the development of alternative theories:
o Theory of Justice:

Developed by John Rawls, it emphasized fairness, distributive justice, and the

original position—a hypothetical scenario where rational individuals design
societal rules without knowing their own position in society.

o Theory of Social Contract:

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 While still rooted in contractual ideas, this theory evolved beyond the simplistic
individual contract. It explored collective agreements, societal norms, and the role
of institutions.

The Emergence of Humanism

One of the primary factors contributing to the decline of natural law theory was the rise of
humanism. Humanism emphasized the value of human reason, individualism, and the study of
classical texts. As scholars delved into ancient Greek and Roman works, they found alternative
ethical and legal frameworks that challenged the universality of natural law.

Humanism and Legal Thought

Humanists questioned the idea that there existed a single set of moral principles applicable to all
people. Instead, they celebrated the diversity of human experiences and cultural contexts. Legal
scholars began to explore legal positivism, which asserted that laws were man-made and subject
to change based on societal needs.

Skepticism Toward Universality

Natural law theory, rooted in the idea of universal moral principles derived from nature, faced
skepticism. Humanists argued that cultural differences, historical context, and individual
circumstances should shape legal norms. The rigid application of natural law seemed inadequate
in addressing these complexities.

Scientific Revolution and Empiricism

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The Renaissance witnessed significant advancements in science, led by figures like Galileo
Galilei and Johannes Kepler. Their empirical approach challenged traditional views of natural
law.

Empiricism and Legal Philosophy

The shift toward empiricism influenced legal philosophy. Scholars like Hugo Grotius argued that
legal norms should be based on reason and experience rather than abstract metaphysical
concepts. Empirical evidence became central to legal reasoning.

Political Realism and State Sovereignty

The Renaissance also saw the emergence of political realism. Thinkers like Niccolò Machiavelli
and Thomas Hobbes challenged natural law’s idealistic assumptions.

Hobbes and Social Contract

Thomas Hobbes, in “Leviathan,” proposed a social contract theory based on self-interest and fear
of the state of nature. His focus on state sovereignty and the need for strong central authority
clashed with natural law’s emphasis on individual rights.

Legal Positivism and the Shift Away from Natural Law

Legal positivism gained prominence during the Renaissance. Legal scholars argued that laws
were products of human institutions, not divine or natural principles. This shift away from
natural law had several implications:

Separation of Law and Morality

Legal positivism separated law from morality. Laws were seen as enforceable rules, irrespective
of their moral content. This departure from natural law’s moral foundation weakened its
influence.

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The revival of the natural Law school started at the start of the 19th
century.
The revival of the Natural Law school started due to the following reasons as mentioned below.

1. The revival of the natural Law school takes place as a result of the reaction to the new
theories, especially of the Analytical school of thought which has exaggerated the positive law
by giving absolute powers to the sovereign as it is a well-known quote that Absolute power
corrupts Absolutely” due to this reason the natural law school is preferred as it includes the
check and balance on the sovereign as he cannot do anything against the rules of morality.

2. The prior knowledge that a person gets without need of any previous knowledge. It was
held that this method is not completely ineffective as it is effective to some extent.

3. The pure positivist approach has failed to meet the problems which are created by the
new social conditions. The material progress and its effect on society make the thinkers look for
some values and standards of living.

4. The Western world was disturbed due to the occurrence of World War I in Europe
ultimately resulted in the scholar started search for the ideal system in which people can live
peacefully and also progress with the period.

5. Science has started to become doubtful about its facts in itself.

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6. The youth rebelled against the accumulation of power and money in the hands of some
specific class of people which were a very small minority of the society in the form of the French
Revolution of 1789 and the American War of Independence respectively.

7. Lawyers started to think that law is not simply applying statutes and precedents to any
given case through the help of pure logic. The unsolved modern problems need a solution higher
than the positive law. There was the search for the ideal justice

8. The emergence of new ideologies such as Socialism and Fascism resulted in to formation
of counter-ideologies resulting into the revival of natural law school.

Changes in the Natural Law Theory with the time being

The following are changes which take place to revive the concept of natural law theory

1. The new ideas of Natural Law Theory took into account approaches from various schools
such as analytical school, sociological school and historical school. Etc.

2. The new approach is relative and changes with the period and place in this way it is more
practical and not an abstract idea. In this way, the new theory has natural law with the variable
contents.

3. The followers of Thomas Aquinas became ready to accept the concept of Neo- Thomists
according to them reality can be provided through use of the scientific methods but this can only
be proven by applying the philosophical approach toward it by proving with the help of reason
and reflection.

Natural Law Theory jurists of the Modern period

Following are some jurists whose work in natural law theory has given a new soul to the school
of natural law in modern times till the 20th century.

Stammler:-

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He was the great exponent of the natural law with the variable exponents. He has proposed a
hybrid structure of natural law by mixing Analytical school into Natural Law. He was the first
who has distinguish between theoretical legal science and technical legal science. Where
technical legal science deals with the current legal system so it deals with the content of law and
what the law is. Theoretical legal science is concerned with the rules giving effect to the
fundamental principles dealing with which the law is made.

According to him to legislature achieve justice it has to follow the two rules of participation and
two rules of respect. Rules of respect are that the person's violation must not depend on the
arbitrary will of the person and every legal demand is maintained in such a way that the person's
obligations remain as to fellow creature. The principle of participation is that the person lawfully
obliged must not be arbitrarily excluded from the community and every lawful power of decision
may exclude the person affected by it from the community only to the extent the person remains
a fellow creature. He has put law scientifically on its feet and revived legal idealism against the
steamily of positivism.

John Rawls

According to him, society is more or less self- self-sufficient association of persons who in their
mutual relation recognize as binding certain rules of conduct specifying a system of corporation.
Principles of social justice are necessary for making a rational choice between various available
alternative systems. Fairness results from the reasoned prudence that a rational person will
choose in the hypothetical " Original Position” It is the position in which the legislator doesn't
take into consideration his status in society nor does he know whether he will be poor or rich in
the future. Also, the legislator doesn't know what his gender is whether he is male or female or
any other gender. The main principle of justice is to secure the generalized social wants, “
primary social good” which includes liberties, opportunity, power and a minimum of wealth. The
first principle of justice is that each person has equal and extensive rights of equal basic liberties

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compatible with the principle of similar liberty for all. According to the principle of priority,
liberty should be given priority subject to the fulfilment of some basic wants. Liberty can only
be restricted for the sake of liberty.

The second principle of justice is that " Social and economic inequalities are to be arranged so
that they are both (A) to the greatest benefit of the least advantaged, consistent with the just
saving principle and (B) attached to the office and positions open to all under the condition of
fair equality of the opportunity. The second priority rule is the priority of justice over efficiency
and welfare. Inequality is only enhanced when it provides opportunity to those having the lesser
opportunity. An excessive rate of saving will be used for those who are bearing such type of
hardship.

CONCLUSION

The Renaissance saw a profound change in perspectives on natural law theory. While classical
texts from ancient Greece and Rome fueled renewed interest in natural law concepts, humanism
and empiricism challenged the notion of universal and absolute moral principles. Skepticism
grew regarding the applicability of natural law across different cultures and historical eras.
Thinkers like Machiavelli emphasized political realism over idealistic interpretations of morality
and justice. The rise of legal positivism further separated law from theology and morality,
asserting that positive laws are social constructs subject to change over time and place.

In a nutshell the concept of natural law has undergone a fascinating journey, flourishing during
the Renaissance and facing challenges in later periods. Despite its decline, the yearning for
universal moral principles and a foundation for just laws never truly vanished. The 19th century
witnessed a revival of natural law theory, not as a rigid set of principles but as a dynamic
framework that adapts to evolving circumstances. This renewed focus on natural law integrates
insights from various schools of thought, fostering a more practical and context-sensitive
approach. Thinkers like John Rawls, with his "Original Position" thought experiment,
emphasized fairness and social justice as core principles. The quest for a just and equitable
society continues to drive the development of natural law theory, ensuring its enduring relevance
in the pursuit of a better world.

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SOURCES

PRIMARY SOURCE

Jurisprudence And Legal Theory by V.D Mahajan

Research papers

1. “The Role of Natural Law in the Rise and Decline of European International Law”
2. “The Decline of Natural Law: How American Lawyers Once Used Natural Law”
3. “Human Rights - Natural Law, Transformation, Rights”
4. “Natural Law and Laws of Nature in Early Modern Europe”
5. “The Rise of Natural Law in the Early Modern Period”

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