This article was written by Tripti Kejriwal, a student of National Law University, Assam.
Intellectual history in all legal profession moves in a cyclic form. We need to go back to the initiation of the first principles in the cycle in order to realise the political wisdom and moral strength of which our nation is apt. This clearly suggests the rediscovery of the traditional principles of natural law which could be slightly perceived through the oblivion of our legal system. Thus, the opportunity to reinvigorate the tradition and also the framework for the rule of law is provided by the present rejuvenation of the natural law theory.
The Declaration of Independence was adopted by the founders of America in 1776. At that time, the human beings were bestowed with inalienable rights by the supreme Almighty, which included right to life, liberty and other rights. The government performed their actions in accordance with the fulfilment of such rights and also their actions were based on certain “self – evident” truths. Therefore, from the very onset, the nation treaded on the heels of the idea of natural law which held that there are certain rights of liberty and property which thereafter rests on a higher moral law. The theory of legal positivism which postulates that law is the will of the sovereign lies in complete contradiction with the idea of natural law. In the present day world, this will of the sovereign is the power of the state. But there is a critical difference between these views of law in a way that if there exists no any “higher law” or “divine law”, then there is no point of human law being unjust.
In the present scenario, many lawyers most likely tend to opine that the idea of “natural law” is very obsolete and that it should be relinquished altogether. They think of natural law as a religious notion which cannot be necessarily incorporated in legal analysis. On the contrary, they provide an optimistic view of “rule of law” and staunchly support it and claim that it should be preserved. Also, if not all, but some of the basic principles that is comprehended in the rubric “rule of law” can be directly or indirectly procured from the sources of natural law. Unfortunately, the nexus between natural law and rule of law that existed formerly is losing its ground because of the negligence that persists today.
This is a great shame, because the defense of the rule of law becomes much more difficult when it is unhinged from its intellectual, historical and moral roots. As Professor Ellis Sandoz has argued in a recent paper, under the rule of law “there is an appeal to a higher standard of law and justice than the merely mortal or, at the least, than the enacted law of merely contemporary rulers.”
Thus, this paper encompasses the idea of natural law and how the traditional principles of natural law has influenced “rule of law.” Also, the same idea will be presented by dealing with the ideologies of various natural law thinkers in the present context.
NATURAL LAW AND RULE OF LAW
Natural law has a varied subject matter. There are many aspects which are given to natural law to define its subject matter. Natural law is thus considered to be a slippery subject because there is no definite or easy way in which it could be defined and has wide ranging connotations. According to a theologian or any other traditional philosopher and legal scholar, natural law is closely recognized with morality and operates through free will of humans. While on the other hand, a physicist would give a contradictory definition and opine that natural law are scientific laws of nature which acts on human being regardless of their will. But, in the broadest sense, law that governs natural rights of humans from the time they are born is natural law. Hence, natural law has varied interpretations depending on who has described it.
In the words of Heinrich Rommen:
The order of the world is an order of absolute necessity for unfree creatures, but it is an order of oughtness, a moral order, for rational and free beings. In the former case the eternal law is a law of necessity; in the latter, it is a moral law of freedom.
Thus, the idea of moral natural law is different from the idea of natural law as advocated by the physicists as it suggests that moral natural law is an order of “outghtness” that is what we ought to do or not ought to do. This moral natural law is supported by the divine law and order which is acquired from the rational, free and socially inclined nature that man possesses. This is in reference to the laws of nature as given in the declaration of Independence of 1776. As propounded by various different natural law thinkers, there are many dimensions of human well – being that cannot be simplified further. These theorists understand human nature as determinate and variegated.
The natural law theorists posit to arrive at a sound and specific understanding of principles of natural justice, including those principles called human rights, by contemplating on the basic goods of human nature especially those which pertain to political and social life. In process, the theorists of natural law reject the idea of both individualism and collectivism in order to understand human nature and human good as they claim that they are highly unsatisfactory.
All the communities and societies are morally obliged to protect certain rights of the citizens irrespective of their caste, creed, gender, sex, ethnicity, race, etc. as a virtue of humanity. These rights are called human rights and are possessed by every citizen. There exist both negative as well as positive rights and duties in every community, but the most vital thing is to trace and identify as to who and how these rights will be enjoyed.
There are various natural law theorists such as Plato and Aristotle to St. Thomas Aquinas and St. Augustine etc. who advocates and propounds the theory of natural law but the definitions and contentions raised by all of them varies to a great extent. Amongst these thinkers, some of them staunchly support the ideals of rule of law that restricts the arbitrary exercise of power and proposes that everyone should be treated equally before the law.
The idea of rule of law is supported by a natural law thinker namely Cicero, who drew a line of demarcation between the laws that are made by the government and the divine laws. As per him, if the laws of a nation are made by a despot, then they are unjust and hence abiding by all the laws and decrees of a nation is not always just. He opines that the justice that holds the society together is maintained by one law is right reason which is rightly expressed in prohibitions and commands. He also adds that whoever does not follow these laws and ignores it is unjust and that these laws are promulgated and are known to people.
Ciecro was the first one to pronounce that the government was justified primarily as a medium of safeguarding private property unlike Plato and Aristotle who had imagined that the government could improve morals. Neither of them had devised of private property as an outright and absolute claim to something over everyone else.
He, further proposed that the government is like a trustee for the society and has moral and legal obligation to serve the society, which is a large and separate entity altogether. The society is a swarm of private individuals who develop markets, legal customs, languages, institutions etc. which didn’t come into the limelight until Cicero had began to see the light.
Cicero’s De Officiis (On Duties, 44 B.C.) chiefly elucidates his views on the institution of states wherein the protection and security of individual property formed the constitutional order of the state. The peculiar function of the state is to assure each and every person had free control over his property. The charge of the men who administered public affairs was to check that the people hold on to their own property and also the public administrator should never deprive men of their goods.
Further, the highlights of law expressed by Aquinas add up to the idea of the Rule of Law, which he unmistakably gives a need over the “principle of men” in his treatment of judges’ subordination to enactment and of the obligation of judges to hold fast to law even against the proof of their own eyes when that proof isn’t legitimately acceptable. The meaning of law offered by Aquinas is that it is “an ordinance of reason for the common good, made by him who has care of the community.” It is a statute of reason made by the individual or the body in charge of making laws and taking care of the group however with the goal of common good of the community at large. These laws in its present condition planned towards the benefit of everyone as its target makes it both lawfully and in addition ethically official and legitimate. There are repercussions with respect to these laws by the subjects as they may incline toward an alternate route for tracing the common good but can still continue to be the ruler’s ruler -ship.
They have seized upon the slogan, found in the theory of St. Augustine and echoed by Aquinas that, “a law that is not just, seems to be no law at all.” This concept of “Lex injustia non est lex” is considered to be the soul of natural law as it creates an obligation to pursue a good moral system of law that is for the common good and thus ordains unjust deeds. Therefore, as according to this principle, laws which are unjust or discriminatory in nature are not laws at all.
Unjust laws are, Aquinas says, “not so much laws as acts of violence.” These unjust laws lack the moral force of law and are not binding because of violations of objectives of common good and that of justice. As for example, prejudicially transferring the burden of an unjust law on the shoulders of an innocent citizen or causing disturbance by subverting respect for law in a just legal system or any such situation might lead to execution of injustice.
Locke also believed that natural law is the substantive content of rule of law. In accordance to his theory of natural law, the sovereign authority which is bestowed with the duty to protect the rights of people and ensure peace and social order has limited power and authority. He opposed the absolutism theory propounded by Hobbes, who argued that the sovereign has unlimited authority and power to preserve life, liberty and state. Thus, Locke, too staunchly supported the ideas of individuals possessing inalienable rights, limited power given to the commonwealth for the good of the society, etc. which conforms to the principle of rule of law.
The ideas of rule of law were not explicitly discussed by the thinkers who propounded the natural law theory but it still has its roots tracing back to the natural law school. But they supported the idea of equal treatment and justice by accepting the principle that unjust law is no law at all.
As pointed out by some critics of natural law that the natural law requires some basic assumptions which are strenuous to prove empirically. These includes assumptions that human life has intrinsic values; that humans are capable of free moral choice; that there is an intelligible “order of oughtness”; and that humans have a natural desire to live in an orderly society, certain principles can be inferred that bring us closer to the “rule of law.” They are as follows:
1) The protection, preservation and procreation of human life: This idea is propagated in the Christian doctrine that humans posses value and dignity and has a special place in the divine order. This is also supported in the present era with the advent of rule of law which prohibits unjust acts against humans be it murder and also gives them the right to self defense thus following the principle that human life has intrinsic value.
2) Protection of property: Liberty and property are important for man to pursue their goals. As argued by natural law thinkers, the right to own property is a part of natural law as private property is crucial to good order and social peace. The individuals would be dependent on others for their survival if they are deprived of their property which in turn deprives the right to liberty. Thus, property acquired by an individual was connected to the idea of liberty and hence should not be denied.
3) Individual liberty: It is presupposed by the Roman jurists that personal freedom was a part of natural law. The natural law related concept of liberty was brought by Magna Carta into English constitutional law, which devised that no man who is free shall be imprisoned except by the law of the land. In the modern natural law theory that persists today, individual liberty is to be given utmost significance in order to attain one’s goals subject to the qualification that the liberty of others should be respected. Thus, if the idea of liberty doesn’t infringe the right of others, then it is in line with the laws of nature.
4) Reciprocity: Reciprocity is the conceptual basis for the natural law principle that “promises should be kept” (pacta sunt servanda). Aristotle believed in this principle and stated that each man should be given his due in order to eradicate injustice from the society. Hence, all the societies have certain rules of promise making and promise keeping so that they do not exercise arbitrary rule.
5) Trust: These principles also include the obligation of fidelity which is necessary for social peace and harmony. Loyalty and care on part of the fiduciaries are derived from principles of natural law and reflect the idea of trust which is basic for survival. Thus, the moral principle of trust forms a part of natural law due to its universality.
Thus, natural law theory rightly states that human beings are governed by innate laws of nature and also rule of law. It states that a nation should be governed by laws and not by the individuals to ensure equality and equal enforcement of law. Therefore, the concept of natural law is largely related to the idea of rule of law as they both intermingle when it comes to curbing injustice and prohibiting wrongful acts and giving each man his due in a rational manner. As such, there is a very strong connection between the principles of natural law and rule of law which can mould the society and prevent injustice caused to its subjects.
Hence, natural law and rule of law stands firmly against the unjust law which runs parallel to the theory propounded by the natural law theorists who believe in the application of the principle which claims that unjust law is not law.
Natural law, thus, is provided to all human beings as an innate law which guarantees that there is the prevalence of divine order or higher law which ensures collective goodness of the community at large. Several thinkers of natural law are stalwart supporters of the idea of rule of law which is connected to the applicability of the modern concept of the principle which states that unjust law is no law at all. Despite the existence of a divine order, these thinkers have very well propagated the idea of individual liberty, common good, private property etc. These thinkers, however, opine that the divine order should also work at the individual level and disseminate justice in the society.
But, the question that now pops out is that whether or not natural law always leads to rule of law even though rule of law traces its root in natural law? This is debated as there are many natural law thinkers including Plato, Aristotle etc. who considered the idea of slavery as just. But, this concept of slavery is strongly negated as this practice is considered to be unjust on the part of the slaves thus, annulling the idea of just and equal treatment to all.
Thus, it can be concluded that natural law and rule of law has a deep connection as rule of law finds its roots back in natural law. Despite of this, there exists various repercussions regarding the same.
Therefore, the idea propounded by rule of law can be traced back to that natural law that guarantees its citizens rights and duties at present. However, the revival of the natural law theory can very well lead to the strengthening the entire framework and concept of rule of law.
- Suri Ratnapala, Jurispudence (Cambridge University Press, 2nd 05-May-2009).
- David Hume, A Treatise Of Human Nature, II, pt. III, sec. I, (Clarendon Press 1888) (1739).
- George, P. Robert, Natural Law, Harvard Journal Of Law & Public Policy.
 Ellis Sandoz, Foundations of American Liberty and Rule of Law, 24 Presidential Studies Quarterly 605, 607 (1994).
Henrich A. Rommen, The Natural Law, pg. 158, (Liberty Fund 1998 ).
 St. Thomas Aquinas, Summa Theologica I-II, Q.90, art. 4.
 Id. at Q. 96, art. 4. (quoting, St. Augustine, De Lib. Arb, [On Free Will], bk. i, 5).
 Id. at Q. 96, art 4.
David Hume, A Treatise Of Human Nature, bk. II, pt. III, sec. I, (Clarendon Press 1888) (1739).