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FACULTY OF LAW
QUESTION
Explicate the reasons for the rejection of Natural law in 19th century and its revival in 20th
century
TABLE OF CONTENTS
1.0 INTRODUCTION ............................................................................................................... 3
The question forth requires a critical analysis of the factors that contributed towards the
decline of the natural law theory in the 19th century and its resurrection in the 20th century.
Therefore natural law theory will be subjected to a long discussion, tracing its path way and
endurance throughout the centuries.
The interpretations as to the content of the principles surrounding natural law have constantly
been in divergence from one another, but the central notion as explicated by Fitzgerald lies
on the essence 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.3 This is valid necessity because
the rules governing correct human conduct are logically connected with immanent truths
concerning human nature.4
Natural law can be traced to the ancient Greeks such as Protagoras, Callicles, Hippias, Plato
and Aristotle.5 The Stoics whose emphasis was man being subjected towards rationalism. The
Roman Jurisprudence, through jurists such as Marcus Cicero and Gaius who associated
natural law with ius gentium. Then during the medieval era, where the teachings of the
church dominant, natural law was most famously explicated through St Augustine through
his book ‘City of God’ and St Thomas Aquinas who divided the law into eternal, divine,
1
Ghormade, V. (2014). Lectures on Jurisprudence & Legal Theory. 2nd ed. Pune: Hind Law Publications. p. 61
2
Cited in Freeman, M.D.A.(2008). Introduction to Jurisprudence. 8th ed. London: Thomas Reuters (Legal) Ltd. p.
84
3
Fitzgerald, P.J. (2008). Salmond on Jurisprudence. 12th ed. New Delhi: Universal Law Publishing Co. Pvt. Ltd. p.
15
4
Freeman, M.D.A.(2008). Introduction to Jurisprudence. Op cit. p. 84
5
ibid
natural and human.6 The renaissance period was characterized with natural law which was on
separate terms with the dogmatic teachings of the church as advocated by philosophers such
as Hugo Grotius, Thomas Hobbes, John Locke, Jacques Rousseau, and many more. There
was also the development of the social contract theory, which tried to explain on the position
of the state and law. Though this long and enduring journey, natural law was met with crisis
in the 19th century as was culminated from the prior century, which inevitably led to its
demise.
The circumstance that prompted such stern rejection of natural law by the bourgeois was the
atmosphere of legal uncertainty that surrounded their business affairs. 13 There was a need to
6
ibid
7
Mahajan, V. D. (2001). Jurisprudence & Legal Theory. 5th ed. Lalbagh: Eastern Book Company. p. 710
8
ibid
9
Roederer, C & Moellendorf, D.(2007). Jurisprudence. London: Juta and Company Ltd p. 45
10
Maritain, J. (1971). The Rights of Man and Natural Law. Retrieved on April 2, 2018. Available at
https://encyclopedia2.thefreedictionary.com/natural+law
11
Ratanapala, S. (2011). Jurisprudence. 1st South Asian ed. New Delhi: Juta and Company Ltd
12
ibid
13
Maritain, J. (1971). The Rights of Man and Natural Law. Retrieved on April 2, 2018. Available at
https://encyclopedia2.thefreedictionary.com/natural+law
have clear and known rules governing such contractual relations rather than basing on
customs and religion as was prevalent during feudalism.14
It is the judges (as we have seen) that make the common law. Do you know how
they make it? Just as a man makes law for his dog. When your dog does anything
you want to break him of, you wait till he does it and then beat him for it. This is
the way you make laws for your dog: and this is the way the judges make law17
Other flaws included; law taxes which placed undue burdens on litigants, there were
complicated rules of procedure that delayed decisions which made justice costly and also
obsolete rules of evidence which made informed judgments far more difficult.18 Moreover
there was an increase of new cases which did not fit into any of criteria that existed during
that period of time. These new and complex cases were dealt with by the expedient of forcing
them into old categories which mostly led to unfavourable results.19 Criminal law was also in
a dilemma. There were over 250 crimes in England that were considered grave offences and
attracted capital punishment.20
It was due to this state of disorder that jurists such as Bentham were dedicated to the cause of
law reform, with the belief that justice, order, certainty and simple procedure could be
implanted permanently into any legal system through adoption of a concise legal code.21
14
ibid
15
Kinsley, G. M. (1986). The Decline of Capital Crime Statutes in Early 19th Century England. Retrieved on April
6, 2018. Available at https://archives.columbusstate.edu/gah/1986/120-130
16
Alfange Jr, D. (1969). Jeremy Bentham and the Codification of Law. Cornell Law Review. Vol 55. Issue no.1.
Retrieved on April 3, 2018. Available at http://scholarship.law.cornell.edu/vol55/iss1/3. p. 66
17
From J.Bentham’s Truth v. Ashurst, as quoted in Alfange Jr, D. (1969). Jeremy Bentham and the Codification
of Law. Op cit. p. 66
18
Alfange Jr, D. (1969). Jeremy Bentham and the Codification of Law. Op cit. p. 61
19
ibid
20
Kinsley, G. M. (1986). The Decline of Capital Crime Statutes in Early 19th Century England. Retrieved on April
6, 2018. Available at https://archives.columbusstate.edu/gah/1986/120-130
21
Alfange Jr, D. (1969). Jeremy Bentham and the Codification of Law. Op cit. p. 61
2.3 Rise of Sovereign States
The rise of sovereign states frustrated the ideologies of higher law inherent in each and every
individual.22 This was attributed to pre-eminent ideas of legal and political philosophy, jurists
such as Bodin, Machiavelli, Hobbes and Bentham.23 Jean Bodin conceived sovereignty as a
supreme, perpetual and indivisible power, marked by the ability to make law without the
consent of any other.24 Therefore this implied that there is no higher authority that could
empower the state and limits its ability.25 This contributed to the decline of natural law.
22
Ghormade, V. (2014). Lectures on Jurisprudence & Legal Theory. Op cit. p. 61
23
ibid
24
Dunning, W. A. (1896). Jean Bodin on Sovereignty. Political Science Quarterly. Vol 11. Issue 1. Retrieved on
April 8, 2018. Available at http://www.jstor.org/stable/2139603
25
Troper, M. (2015). Sovereignty and Natural Law in the Legal Discourse of the Ancien Regime. Retrieved on
April 8, 2018. Available at https:/ http://www.jstor.org/
26
Jeremy, W. (2009). The Decline of Natural Right. New York University Public Law and Legal Theory Working
Papers. Paper 143. Retrieved on April 8, 2018. Available at https://Isr.nellco.org/nyu_plltwp/143
27
Freeman, M. (2011). Human Rights: An Interdisciplinary Approach. 2nd ed. London: Cambridge UK Polity. p.
37
28
ibid
29
Jeremy, W. (2009). The Decline of Natural Right. Op cit
30
ibid
2.5 Rise of Historicism
This was a school of jurisprudence that was pioneered by Prof. Friedrich Karl von Savigny,
a German jurist as influenced by Johann Herder.31 During this period Germany was
recovering from reign of the French, trying to find an alternate ideology on law, freeing
themselves form the Napoleon code which was centred on natural law. The central idea of
this school was that a nation’s customary law is its truly living law and the task of
jurisprudence is to uncover this law and describe in historical studies its social provenience.
This school rejects the conviction that there is a practical law of nature or reason, an ideal
legislation for all times and all circumstances. They believe that the origin and development
of the law is rooted in the customs of the society as emanated from the spirit of the people
and this is different in each society making the concept of natural law inapplicable.32
Auguste Comte, is the one credited with inventing the term ‘sociology’, denoting scientific
analysis of the society.37 Comte denounced natural law theory as false, non-scientific and
based on supernatural beliefs.38 Waldron credits the decline of natural law to the ‘rise of
31
ibid
32
ibid
33
Mirabella, D. (2011). The Death and Resurrection of Natural Law. WAJ. Vol 2. Issue No. 2.
34
ibid
35
Roederer, C & Moellendorf, D.(2007). Jurisprudence. Op cit. p. 45
36
Mirabella, D. (2011). The Death and Resurrection of Natural Law. Op cit
37
Doherty, M. (2001). Jurisprudence: The Philosophy of Law. 2nd ed. London: Thomas Reuters (legal) ltd. p. 171
38
ibid
large-scale social theory’ particularly as articulated by Karl Marx, Emile Durkheim and
Max Weber.39 They asserted the following;
As explicated by Gill, Jeremy Bentham was the philosopher and jurist who promulgated the
principle of utility into existence.43 As influenced by Thomas Hobbes’ account of human
nature and David Hume’s account of social utility, he developed his own assertion, holding
that humans were ruled by two sovereign masters.44 These masters are pleasure and pain.
Bentham promulgated the principle of utility as the standard of right action on the part of
governments and individuals. Such actions are supposed to serve the happiness of the greatest
numbers of individuals in the community45. This was an idea profound after reading Joseph
Priestley’s Essay on Government.46 Bentham clearly rejected natural law, by categorizing law
as a subject of scientific formulation.47 To him law is an assemblage of signs, declarative of
volition, conceived or adopted by the sovereign in a state, concerning the conduct to be
observed in a certain case by a certain person or class of persons who in the case in question
39
Pagden, A. (2003). "Human Rights, Natural Rights, and Europe's Imperial Legacy". Political Theory Vol. 31.,
no. 2. p. 171-199
40
Ibid. p. 153
41
ibid
42
Gill, M. (2006). The British Moralists on Human Nature and the Birth of Secular Ethics. New York: Cambridge
University Press
43
ibid
44
ibid
45
Alfange Jr, D. (1969). Jeremy Bentham and the Codification of Law. Cornell Law Review. Vol 55. Issue no.1.
Retrieved on April 3, 2018. Available at http://scholarship.law.cornell.edu/vol55/iss1/3
46
ibd
47
ibid
are supposed to be the subject to his power.48 His ideas were later on expressed and
developed by his student and admirer John Stuart Mill, who quashed the ideas of natural
law and advocated for codification of laws based on utility. 49
48
http://www.grkarelawlibrary.yolasite.com/resources/LLM-LT-1-Devanand.pdf
49
Crisp, R. (1998). Mill, John Stuart, 1861 [U]: Utilitarianism. Oxford: Oxford University Press
50
Ghormade, V. supra
51
Paton, G. W. (2007). A Textbook of Jurisprudence. 4 th ed. New Delhi: Oxford University Press. p. 5
52
ibid
53
Tripathi, B. N. M. (2004). An Introduction to Jurisprudence (Legal Theory). 15th ed. New Delhi: Allahabad Law
Agency. p. 101
were found to be inadequate.54 It was seen that law is not simply a matter of applying statutes
or precedents to any instance. Roscoe Pound asserts the following;
“We have learned that entire certainty and objectivity in the judicial process
cannot be assured by providing a detailed rule in advance for every case that can
arise. We have learned that much has to be left to legal reasoning and that a choice
has to be made as between starting points for such reasoning which are of equal
authority, often without any legal precept requiring choice of one rather than the
other.”55
The impact of material progress and its effect on the society made the thinkers look for some
values and standards, an ideology that could prevent general moral degradation of the
people.56 Therefore this created the environment towards revival of natural law.
In the aftermath of the WWII, the United Nations was born assigned with the task of
protecting the world from another global war.59 The UN Charter (1945) drew heavily from
natural law principles in entrenching an objective set of natural fundamental rights.60 These
basic human rights, while mentioned in the preamble and article one of the UN Charter, were
actually listed in the Universal Declaration of Human Rights (1948).61 This document
inspired the invention of numerous declarations and other conventions around the world.62
54
Jayakumar, N. K. (2006). Lectures in Jurisprudence. 2nd ed. New Delhi: LexisNexis Butterworths. p. 115
55
Pound, R. (1942). Revival of Natural Law. Notre Dame L. Rev.287. Vol 17. Issue 4. Retrieved on April 7, 2018.
Available at http://scholarship.law.nd.edu/ndlr/vol17/iss4/1
56
Paranjape, N. V. (2007). Studies in Jurisprudence ad Legal Theory. New Delhi: Central Law Society. p. 100
57
Mirabella, supra
58
Hanhimaki, J. M. (2008). The United Nations: A Very Short Introduction. New York: Oxford University Press.
p. 11
59
ibid
60
Joseph, S & Kyriakis, J, (2010). Research Book on International Human Rights Law. Cheltenham: Edward Elgar
Publishing Ltd. p.16
61
ibid
62
ibid
The events of WWII also inspired renewed interest of natural law in jurisprudence academic
circles.63 Prominent jurists include Gustav Radbruch, previously a positivist, expressed in
his work known as ‘Rechtsphilosophie’ that Nazi laws did not ‘partake of the character of law
at all; they were not just wrong law, but were not law of any kind.64
The decision in the Nuremburg Trials resulted in the birth of the ‘Nuremburg Principle’,
which established that certain acts constituted ‘crimes against humanity’ regardless of the fact
they did not offend against specific provisions of the positive law. 69 Though they did not
explicitly appeal towards natural law, they point out the insufficiency of positive laws,
establishing a firm base towards the revival of the former.
63
Mirabella, D. (2011). The Death and Resurrection of Natural Law. Op cit
64
Kelly, J. M. (1992). A Short History of Western Legal Theory. New York: Oxford University Press. p. 303
65
Mirabella, D. (2011). The Death and Resurrection of Natural Law. Op cit
66
ibid
67
Zimmermann, A. (2010). ‘Legislating Evil: The Philosophical Foundations of the Nazi Legal System’.
International Trade and Business Law Review. Vol 13 221, 231
68
Mirabella, D. (2011). The Death and Resurrection of Natural Law. Op cit
69
Wacks, R. (2005). Understanding Jurisprudence: An Introduction to Legal Theory. New York: Oxford
University Press. p. 26
70
Hart, H.L.A. (1958). Positivism and the Separation of Law and Morals. Harv.L.Rev.616. 717 Retrieved on April
7, 2018. Availbale at http://ssrn.com/abstract=1917342
informing the Nazi government of his condemnation comments. The wife claimed that she
was abiding to the laws that were in place.71 The court of appeal which decided the case held
that the statute under which the wife was claiming protection "was contrary to the sound
conscience and sense of justice of all decent human beings."72 Hence it was reasoned that she
could not be given protection under such statute.
This reasoning became a benchmark precedent which was followed in many cases that have
been hailed as a triumph of the doctrines of natural law and as signalling the overthrow of
positivism.73 This case also sparked a famous debate between legal theorist Lon Fuller
(1902-78) and H L A Hart (1907-92), which would get to the heart of the tension between
law and morality.74 Fuller contended that the Nazi laws were invalid because internal
morality was absent from their legal system. On the other hand, Hart argued that immorality
should not invalidate laws but rather, retrospective laws should be enacted to fix problems of
bad law. Though his reluctance to accept morality, Hart admitted that a requirement of a
minimum content of morality is inevitable in law.75
71
ibid
72
ibid
73
ibid
74
Mirabella, D. (2011). The Death and Resurrection of Natural Law. Op cit
75
Leiboff, M & Thomas, M. (2009). Legal Theories: Contexts and Practices . London: Lawbook Co. p. 262
76
Pattaro, P. Et al. (2015). Natural Law Theories in the Twentieth Century. A Treatise of Legal Philosophy and
General Jurisprudence. Vol 12. 1300p. Retrieved on April 7, 2018. Available at
http://scholarship.law.nd.edu/ndlr/
77
ibid
different times. First to positivism, neo idealism and analytical philosophy. These ideologies
spread throughout gaining a good number of followers, signalling the revival of natural law.78
Then there is Giorgio Del Vecchio, an Italian legal philosopher. Like Stammler he also
distinguishes sharply between the concept of law and the ideal of law.82 Del Vecchio’s theory
approximated to classical natural law, in placing the autonomy of the individual in the centre
his theory of justice, maximising of the human being’s capacity for free development, and the
protection of the rights which naturally belonged to him because entailed by this end was the
business of the state. He described a state which acted contrary to justice in this sense as a
delinquent state.83
There is an endless list of legal philosophers and scholars who profound on the ideas of
Immanuel Kant, advocated strongly towards the revival of the ideologies on natural law to be
incorporated in the current legal system so as guarantee justice.
78
ibid
79
Prabhu, D. P. (2017). The Revival of Natural Law and Value Oriented Jurisprudence. Retrieved on April 7,
2018. Available at https://www.grkarelawlibrary.yolasite.com/resources/
80
ibid
81
Wacks, R. (2005). Understanding Jurisprudence: An Introduction to Legal Theory. Op cit. p. 26
82
ibid
83
Ibid, p. 27
4.0 CONCLUSION
The theory of natural law has stood strong throughout different epochs, serving various
purposes in each and every one of them. With the rise of positivism and the empirical spirit of
the period, natural law was not to be found during the 19th century through to the mid-20th
century. However, it was proved that order and stability cannot be preserved without the
assistance of natural law. The events and atrocities that occurred during the 20th century
forced a re-emergence of natural law under the guise of human rights and sparked new
debates and a sustained academic interest in natural law which still thrives till this very day.
REFERENCES
BOOKS
Crisp, R. (1998). Mill, John Stuart, 1861 [U]: Utilitarianism. Oxford: Oxford University
Press
Doherty, M. (2001). Jurisprudence: The Philosophy of Law. 2nd ed. London: Thomas Reuters
(legal) ltd
Fitzgerald, P.J. (2008). Salmond on Jurisprudence. 12th ed. New Delhi: Universal Law
Publishing Co. Pvt. Ltd
Ghormade, V. (2014). Lectures on Jurisprudence & Legal Theory. 2nd ed. Pune: Hind Law
Publications
Gill, M. (2006). The British Moralists on Human Nature and the Birth of Secular Ethics. New
York: Cambridge University Press
Hanhimaki, J. M. (2008). The United Nations: A Very Short Introduction. New York: Oxford
University Press
Joseph, S & Kyriakis, J, (2010). Research Book on International Human Rights Law.
Cheltenham: Edward Elgar Publishing Ltd
Kelly, J. M. (1992). A Short History of Western Legal Theory. New York: Oxford
University Press
Leiboff, M & Thomas, M. (2009). Legal Theories: Contexts and Practices . London:
Lawbook Co.
Mahajan, V. D. (2001). Jurisprudence & Legal Theory. 5th ed. Lalbagh: Eastern Book
Company
Paranjape, N. V. (2007). Studies in Jurisprudence ad Legal Theory. New Delhi: Central Law
Society
Paton, G. W. (2007). A Textbook of Jurisprudence. 4th ed. New Delhi: Oxford University
Press
Ratanapala, S. (2011). Jurisprudence. 1st South Asian ed. New Delhi: Juta and Company Ltd
Roederer, C & Moellendorf, D.(2007). Jurisprudence. London: Juta and Company Ltd
JOURNAL ARTICLES
Mirabella, D. (2011). The Death and Resurrection of Natural Law. WAJ. Vol 2. Issue No. 2.
Pagden, A. (2003). "Human Rights, Natural Rights, and Europe's Imperial Legacy". Political
Theory Vol. 31., no. 2
Zimmermann, A. (2010). ‘Legislating Evil: The Philosophical Foundations of the Nazi Legal
System’. International Trade and Business Law Review. Vol 13 221, 231
ONLINE ARTICLES
Alfange Jr, D. (1969). Jeremy Bentham and the Codification of Law. Cornell Law Review.
Vol 55. Issue no.1. Retrieved on April 3, 2018. Available at
http://scholarship.law.cornell.edu/vol55/iss1/3.
Dunning, W. A. (1896). Jean Bodin on Sovereignty. Political Science Quarterly. Vol 11.
Issue 1. Retrieved on April 8, 2018. Available at http://www.jstor.org/stable/2139603
Hart, H.L.A. (1958). Positivism and the Separation of Law and Morals. Harv.L.Rev.616. 717
Retrieved on April 7, 2018. Availbale at http://ssrn.com/abstract=1917342
Jeremy, W. (2009). The Decline of Natural Right. New York University Public Law and
Legal Theory Working Papers. Paper 143. Retrieved on April 8, 2018. Available at
https://Isr.nellco.org/nyu_plltwp/143
Kinsley, G. M. (1986). The Decline of Capital Crime Statutes in Early 19th Century England.
Retrieved on April 6, 2018. Available at https://archives.columbusstate.edu/gah/1986/120-
130
Maritain, J. (1971). The Rights of Man and Natural Law. Retrieved on April 2, 2018.
Available at https://encyclopedia2.thefreedictionary.com/natural+law
Pattaro, P. Et al. (2015). Natural Law Theories in the Twentieth Century. A Treatise of Legal
Philosophy and General Jurisprudence. Vol 12. 1300p. Retrieved on April 7, 2018. Available
at http://scholarship.law.nd.edu/ndlr
Pound, R. (1942). Revival of Natural Law. Notre Dame L. Rev.287. Vol 17. Issue 4.
Retrieved on April 7, 2018. Available at http://scholarship.law.nd.edu/ndlr/vol17/iss4/1
Prabhu, D. P. (2017). The Revival of Natural Law and Value Oriented Jurisprudence.
Retrieved on April 7, 2018. Available at https://www.grkarelawlibrary.yolasite.com/resources
Troper, M. (2015). Sovereignty and Natural Law in the Legal Discourse of the Ancien
Regime. Retrieved on April 8, 2018. Available at https:/ http://www.jstor.org/