Juri Spud Ence

CHAPTER- I

A.INTRODUCTION

Natural law theory has been remarkably influential in the evolution of the human thought on

the conception of justice for more than 2,500 years since its inception. In fact, as Friedmann

aptly says, 'the history of natural law is a tale of the search of mankind for absolute justice

and its failure'1. To use his eloquent words further, 'again and again the idea of natural justice

has appeared in some form during the last 2,500 years, as an expression of the search for an

ideal, higher than positive law after having been rejected and revived in the interval'.2

The revival of natural law in the late nineteenth and early twentieth centuries reflected

itself in several modern theories. The skepticism of modern thinkers against an absolute idea

of justice, their relativist view of world and above all their unflinching belief in the progress

of mankind resulted in the rejection of the older notions of natural law as a law which is

immutable, eternal and universal3. As a consequence, modern natural theories could be seen

as part of the never ending search for ideas of justice. While theorists belonging to the formal

idealist school, such as Stammler in Germany, and Del Vecchio in Italy, sought to set up a

formal structure of just law and then sought to give it a material content. Lon L. Fuller, a

post- positivist lawyer, advanced the theory of 'procedural naturalism4. Even Hart, a positivist

who expressed the goal of his theory as 'an improved analysis of the distinctive structure of a

municipal legal system and a better understanding of the resemblances and differences

between law, coercion and morality, as types of social phenomenon’5, sought to examine the

impact of moral questions upon the assessment of law's quality by introducing a ‘minimum

content of natural law’ into his positivist theory6.

But not all modern natural law theorist have abandoned the classical theories of

natural law. Known as neo-scholastics jurisprudes like Dabin Maritaion and Finnis follow

and refine the doctrine of Aquinas. The theory of law as a moral phenomenon, advanced by

1 W. Friedmann. Legal Theory (Third Indian Reprint 2003), 95.2 Ibid3 Id. 1534 Lon L. Fuller, The Morality of Law, rev.ed. (NewHaven : Comn. Yale

University Press, 1969)5 H.L.A. Hart, The Concept of Law (1961), 17.6 Ibid, at pp. 188-189s

1

Deryok Beyleveld and Roger Brownsword7 offers a more extreme thesis than those found in

the classical naturalist spectrum or even that set by Finnis.

John Finnis, a prominent living legal philosopher, who is presently a Professor of

Jurisprudence at Oxford, has successfully managed to revivify the discussion on natural law

with his own new theory of natural law. Drawing both on Oxonian and Catholic theorist

philosophical traditions, he has not only challenged the dominant Anglo-positivist approach

to legal philosophy taken by John Austin and H.L.A. Hart but has also sought to dispell

misconceptions, slogans and illusions surrounding the natural law theory. His Natural Law

and Natural Rights, first published in 1980, provides an important contemporary re-statement

of natural law which is unique in its application of analytical jurisprudence to a body of

doctrine usually considered to be its polar opposite. Although he disclaims originality and

describes his book as introductory and admits that countless relevant matters are only

discussed briefly or not discussed at all, it undeniably constitutes an invaluable contribution

to contemporary legal philosophy.

In his preface to his book he states, "My hope is that a re-presentation and

development of many elements of the 'classical' or 'mainstream' theories of natural law, by

way of an argument on the merits (as lawyers say), will be found useful by those who want to

understand the history of the idea as well as those interested in forming or reforming their

own view of the matter". Finnis's theory of natural law has been so thought provoking that it

has been critiqued by jurisprudes and scholars alike. The present study is an humble attempt

to understand his views on natural law, human rights and justice. The new theories of natural

law took into account the various approaches to law such as analytical, historical and

sociological approaches. They also sought guidance from contemporary theories in other

branches of knowledge. The revived natural law is relative and not abstract and

unchangeable. The new approach of natural law is concerned with practical problems and not

with abstract ideas. It tries to harmonise natural law with the variability of human ideals. It

takes into account new legal theories which put emphasis on society8.

7 D. Beyleveld, and R. Brownsword, Law as a Moral Judgment (1986)8 Mahajan .V.D, Jurisprudence and Legal Theory, Eastern Book

Company, Fifth Edition.

2

B.RESEARCH METHODOLOGY

1).Problem

The concept or ambit of natural law is very wide and hence it is very difficult to study and

consider its each and every aspect.

2).Rationale

The purpose or need of this project is to understand Revival of Natural Law in the 20 th

century.

3).Objectives

1). To understand the concept of natural law and

2). To discuss its revival in the 20th century.

4).Review of literature

Mahajan .V.D, Jurisprudence and Legal Theory, Eastern Book Company, Fifth

Edition – According to Mahajan .V.D, the revived natural law is relative and not

abstract and unchangeable. The new approach of natural law is concerned with

practical problems and not with abstract ideas. It tries to harmonise natural law with

the variability of human ideals. It takes into account new legal theories which put

emphasis on society.

Dr. Paranjape N. V, Studies in Jurisprudence and legal theory, Central law Agency,

6th edition – According to Dr. Paranjape N. V, the impact of materialism on the

society and the changed socio-political conditions compelled the twentieth century

legal thinkers to look for some value-oriented ideology which could prevent general

moral degradation of the people. The World War I further shattered the western

society and there was a search for a value-conscious legal system. All these factors

3

cumulatively led to revival of natural law theory in its modified form different from

the earlier one.

Stammler, Theory of Justice (Translated by Husik) - According to him, law of nature

means ‘just law’ which harmonises the purposes in the society. The purpose of law is

not to protect the will of one but to unify the purposes of all.

Finnis : Natural Law and Natural Rights - According to John Finnis, natural law

consists of two sets of principles, the first consisting of certain basic values that are

good for human being and the second consists of certain requirements of practical

reasonableness. The human mind is capable of appreciating the basic values and

methods of achieving good life. He considered rights and obligations as necessary

components of common good as they are limited by each other.

Dias R. M. W, Jurisprudence (5th Ed. Indian Reprint 1994) - According to him, law

of nature means ‘just law’ which harmonises the purposes in the society. The purpose

of law is not to protect the will of one but to unify the purposes of all.

5).Nature of study

The nature of study followed in this project is non-doctrinal.

6).Sources of Data

The following secondary sources of data have been used in the project-

1. Articles.

2. Books.

3. Websites.

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CHAPTER- 2

A).Reason behind the Revival of Natural law

The nineteenth century legal theories which over-emphasised positivism failed to

satisfy the aspirations of the people because of their refusal to accept morality and ‘reason’

as elements of law. It was realised that exaggerated importance to historical approach

giving undue significance to cultural and social characters of legal system had given rise to

fascism in Italy and Nazism in Germany. The impact of materialism on the society and the

changed socio-political conditions compelled the twentieth century legal thinkers to look

for some value-oriented ideology which could prevent general moral degradation of the

people. The World War I further shattered the western society and there was a search for a

value-conscious legal system. All these factors cumulatively led to revival of natural law

theory in its modified form different from the earlier one. The new approach was obviously

concerned with the practical problems of the society and not with abstract ideals. As Dr.

Allen rightly pointed out, “the new natural law is value loaded, value-oriented and value

conscious and is relativistic and not absolute, changing and varying and not permanent and

everlasting in character. It represents a revolt against the determinism of historical school

on the one hand and artificial finality of the analytical school on the other hand”. 9 The main

exponents of the new revived natural law were Rudolf Stammler. John Rawls, Kohler and

others. The main exponents of the new revived Natural Law were Rudolf Stammler, Prof.

Rawls, Kohler and others10.

9 Allen C. K.: Law the Making (1964), p. 22.10 Dr. N. V. Paranjape, Studies in Jurisprudence and legal theory,

Central law Agency, 6th edition

5

CHAPTER- 3

A).Main exponents of the new revived Natural Law

1).Rudolf Stammler (1856-1938)

Stammler was a Professor of Roman law in various universities of Germany. He

succeeded Kohler as Professor of Law in the University of Berlin. He defined law as,

“species of will, others-regarding, self-authoritative and inviolable”. For him, a just law

was the highest expression of man’s social life and aims at preservation of freedom of

individuals. According to him, the two fundamental principles necessary for a just law

were: (I) principle of respect, and (2) the principle of community participation. With view

to distinguishing the new revived natural law from the old one, he called the former as

‘natural law with variable content’. According to him, law of nature means ‘just law’

which harmonises the purposes in the society. The purpose of law is not to protect the

will of one but to unify the purposes of all.11

Stammler believed that it is impossible to frame legal principles of universal or

eternal validity. It is not the principles of the law of nature but the nature of law which is

constant. Society as a continuing entity, pre-supposes the existence of law. Therefore,

"law is the law of nature with a variable content". Everyone is bound to respect the rights

or claims of others and contribute his share to the life of the community. He believed that

law is necessary a priori, because it is inevitably implied in the idea of cooperation. A just

law seeks to harmonise individual interests with that of society.12 A just law seeks to

preserve the freedom of individual with the equal freedom of other individuals.

11 Lloyd Dennis : Introduction to Jurisprudence (1959), p. 87.12 Stammler; Theory of Justice (Translated by Husik) p. 55.

6

Stammler did not deny the validity of law which fail to conform to the

requirement of justice because 'justice' according to him, is a relative concept.

2).John Rawls (1921-2002)

John Rawls made significant contribution to the revival of natural law in the

twentieth century. He propounded two basic principles of justice, namely, (I) equality of

right to securing generalised wants including basic liberties, opportunities, power and

minimum means of subsistence; and (2) social and economic inequalities should be

arranged so as to ensure maximum benefit to the community as a whole.

According to John Rawls, a well ordered society is one which is effectively

regulated by a public perception of justice and fairness. He views justice and fairness not

as a mere moral doctrine but a political conception which applies to all political and social

institutions of the society. Rawls postulates three levels of justice.

1. local justice, which includes principles applicable directly to all institutions

and associations;

2. Domestic justice applies to family;

3. Global justice is applicable at international level.

These are, however, subject to reasonable restrictions to maintain rule of law.

Rawls' theories of equality and justice have been widely applied to justify various

forms of affirmative action, such as preferential treatment of minorities in America and

equitable allocation of resources. Thus, Rawls emphasized that social and economic

inequalities are to be arranged so that they are reasonably to everyone’s advantage and

command respect for rights and claims of others. In order to ensure equality of

opportunity the initial social and cultural handicaps of an individual have to be taken into

consideration with a view to evolve a just and equitable society. The primary goal,

according to Rawlsian theory is to negate the social and cultural disadvantages that a

person is subjected to and suffers by virtue of being born into a particular social stratum

and provide all with equal opportunities so that a person's social standing is not a

hinderance in achieving the highest goal.

It may be stated that the right to preferential treatment through reservation

policy has to be seen as a group right to certain actions of community who have been

victims of caste discrimination for centuries.

7

Rawlsian theory of equality and justice centers round two fundamental principles

namely.—

(1) Each person is to have an equal right to the most extensive basic liberty

compatible with a similar liberty for others; and

(2) Social and economic inequalities are to be arranged so that they are reasonably

expected to be to everyone’s advantage, and attached to positions and offices

open to all.

Applying the Rawlsian theory to Indian society, it is well known that certain castes

and communities remained marginalised due to rigid social structures and educational

backwardness. After the Indian Independence, the framers of the Constitution of India

incorporated provisions in the Constitution permitting preferential treatment through

reservation in favour of those who are socially and educationally in a disadvantageous

position due to discrimination.13

Rawls' idea of equality of opportunity takes into account the initial social and

cultural handicaps of an individual. He pointed out that in a formal system of equality, those

with substantial social and educational resources will reap the benefit of being placed in a

better position while those with meagre initial resources will continue to receive only

meagre returns. Therefore, it is necessary to recognize that initial distribution of resources is

based on equitable principle so as to provide an “equal start” for everyone in the society and

social standing does not remain a hinderance in reaching the highest goal and position.14

Rawls contention with reference to individual is that 'reason' yields principles of

natural duties and fairness. Natural duty includes to uphold just institutions and help in

promoting justice, to render mutual aid and respect, not to injure or cause harm to innocent

persons etc. The fairness principle, on the other hand, gives rise to obligations which

implies that every individual should play his part as specified by the rules of law so long as

he accepts benefit thereof. Rawls justifies civil disobedience when substantial injustice

occurs but it should inflict no injury or harm to the innocent. Thus, he views disobedience

as ’an appeal to the society's sense of justice and law is the only institution of social

justice.15

13 Arts. 15 (3) and 16 (4) of the Constitution of India.14 Article 39 (b) and (c).

15 Dias R. M. W : Jurisprudence (5th Ed. Indian Reprint 1994), p. 484.

8

It would thus be seen that the Rowlsian theory of the equality and justice takes into

account the realities of social structure and need for formulating a uniform policy whereby

those who have remained backward and neglected due to socio-economic disabilities stand

at par with those who have better resources and social status. The justification for

reservation policy in India finds support in the Rawlsian theory of justice.

3). Francois Geny (1861-1944)

Geny was much impressed by the Stammler’s natural law with variable content

therefore, he devoted himself to the revived natural law. He was opposed to the empiricism

of the historical and analytical schools. He believed that law has to be relativistic and not

static or immutable like the nineteenth century natural law. He underlined the importance of

judicial decisions in moulding a legal system. Geny developed his natural law theory within

the framework of the positive law.

Geny, as a sociological lawyer regarded the law of nature as the sociological factor

which controls and influences the legislators and the Judges. The technique of law-making

or pronouncing judgments involves the welding of the following factors to make the

resultant rules serve the needs of the society :—

1. The physical factors for the society's existence and environment;

2. The evolution, history and traditions of the society;

3. Such fundamental principles which promote sanctity of human life

and freedom;

4. The ideals and inspirations of the society.

Thus Geny attempted to establish universal principles and suggested

application of scientific methods derived from the social science and restated the

natural law theory from a semi-sociological viewpoint.

4).Joseph Kohler (1839-1919)

As a neo-Hegelian, Kohler defined law as, “the standard of conduct which

in consequence of the inner impulse that urges upon men towards a reasonable

form of life, emanates from the whole, and is forced upon the individual’. He says

that there is no eternal law and the law shapes itself as the society advances morally

and culturally in course of evolution. He tried to free the nineteenth century natural

9

law from the rigid and a priori approach and attempted to make it relativistic,

adapting itself to the changing norms of the society.

Del Vecchio asserted that natural law is the principle of legal evolution

which guides mankind and law towards greater autonomy of the individual.

5).John Finnis

Another twentieth century natural law jurist John Finnis, interpreted natural law

as a set of principles of practical reasonableness in ordering human society. He

emphasised on seven values, namely , 1). Life (2) knowledge, that is perfect truth

over false, 3). performance, 4). appreciation for beauty, 5).practical reasonableness

in shaping ones own character; and 6).religious freedom. The function of law

according to Finnis is to promote these values and ensure justice and order, in, the

society.

"

According to John Finnis, natural law consists of two sets of principles, the first

consisting of certain basic values that are good for human being and the second consists

of certain requirements of practical reasonableness. The human mind is capable of

appreciating the basic values and methods of achieving good life. He considered rights

and obligations as necessary components of common good as they are limited by each

other.

The moral authority of law depends upon its ability to secure justice. Law derives

its force from practical reasonableness and therefore, sanctions and punishments are

necessary elements of law. Finnis emphasised that common good of the community can

be attained by minimisation of arbitrariness and maintenance of reciprocity among the

Subjects of law, both amongst themselves and in their relation with the lawful

authorities.16

6).Jerome Hall (1901-1987)

Professor Hall insisted on unifying moral, social and formal considerations

and including moral values in definition of positive law. He may therefore, be called

as the supporter of natural law philosophy. He sought to combine positivist, naturalist

16 Finnis : Natural Law and Natural Rights pp 276-277.

10

and sociological study, namely, rules (laws) ; values and social conduct to form what

he termed as integrative jurisprudence17. Thus, he focused on 'law as in action' based

on value considerations to provide validity to law. He recognised the value of

customary law, which according to him represents the experience of setting problems

in just and rational manner. In his opinion law consists of six features, namely, (1)

ethical validity, (2) functional, (3) regularity, (4) effectiveness, (5) public interest and

(6) inexorability, that is supremacy. He, however, distinguished positive law from

morality and other norms but insisted that morality must be included in the definition

of the law as it provides validity to law.

7).Lon Luvois Fuller (1902-1978)

Professor Fuller is also considered as one of the leading supporters of the

modern natural law philosophy. He emphasised on the role of ‘reason’ in legal

learning and believed that law and morality are necessarily co-related. He said that

good order is law which corresponds to justice or morality. Thus he denied any rigid

separation between “is” and “ ought" aspect of law. He brought out an excellent

exposition or legal positivism ad natural law which according to him" were two

divergent legal philosophies competing at that time. Fuller pointed out that the

essence of legal positivism is sharp distinction between law ‘as it is' and ‘as it ought

to be whereas natural law theory denies this rigid separation of is and ought which

has been a cause of great confusion in the existing legal system.

Lon Fuller analysed the concept of morality and its relation with law in great

detail. He distinguishes morality as it is from ‘morality as it ought to be' and calls the

former "as ‘morality of duty’ and the latter as ‘morality of aspiration’. He further

sub-divides moral duties into affirmative actions or duties and forbearances which he

called ‘negative duties’.

According to him, morality of duty includes basic requirements of social

living whereas morality of aspiration means good life of excellence, e.g., forbearing

from Indulging into extra-marital sex activities. Morality of duty can be generally

17 From Legal Theory to Integrative Jurisprudence (1964) 33 U Cin LR 153. See also Hall j

Foundations of Jurisprudence, pp 137-138.

11

enforced by law but not the morality of aspiration18. Lon Fuller believes that law is a

purposive system, the purpose being ‘to subject human conduct to the control and

guidance of legal rules. He thinks that every workable legal system must comply

with eight reqirements in order to make the law really effective. These requirements

are as follows -

1).there should be definite rules,

2). these rules must be well publicised,

3). there should be no abuse of retrospective legislation,

4).These rules must be easily understandable,

5). these rules must be practicable and must not require a person to do something which

is beyond his power or capacity,

6). the rules must not be contradictory or inconsistent with any other existing law,

7).the rules should not be subjected to frequent changes, and

8).there must be congruence between the rules promulgated and their actual

administration.Thus Fuller emphatically stated that fulfilment of all these requirements is

necessary for establishing rule of law in the society. He calls these requirements as inner

morality of law, which represents the procedural aspect of the modem natural law theory. For

him, the above requirements, with exceptions, are indispensable if a legal system is to

regulate legal behaviour. He asserted that any law which derogates from the 'internal morality

of law’ would not merit to be termed as law and a Judge would be free to disregard it.

Professor H.L.A. Hart has criticised Fuller’s theory of natural law for it confuses ‘morality’

with ‘efficiency’. Unlike Fuller, he does not advocate any minimum universal rules but

considers ‘human conditions’ necessary for an orderly society.

8). H.L.A. Hart

Prof. H. L. A. Hart (1907) is in many ways the leader of contemporary positivism. In his

book entitled The Concept of Law19, Hart has attempted to restate the position of natural

18 He was Professor of General Jurisprudence in Harvard Law School (USA) from 1947 lill

his death in 1978. His main works are "The Law in Quest of Itself (1940) and "The Moraliiv of law"

19 (1964).

12

law from a semi-sociological point of view. He points out that there are certain substantive

rules which are essential if human beings are to live continuously together in close

proximity. ." Hart puts emphasis on an assumption of survival as a principal human goal.

According to him, we are concerned with social arrangements for continued existence and

not with those of a suicide club. There are certain rules which any social organisation must

contain and it is these facts of human nature which afford a reason for postulating a

"minimum content" of natural law. Hart does not state the actual minimum universal rules

but certain facts of "human condition" which must lead to the existence of some such rules

but not necessarily rules with any specific content. According to Hart, those facts of human

condition consist of human vulnerability, approximate equality, limited altruism, limited

resources and limited understanding and strength of will. In the light of these inevitable

features of human condition, there follows a "natural necessity" for certain minimum forms

of protection for persons, property and promises.

Hart does not suggest that, even if this analysis of human society is accepted, this must

inevitably lead to a system of even minimal justice within a given community. He accepts

the fact that human societies at different periods of history have displayed a melancholy

record of oppression and discrimination in the name of security and legal order as in the

case of systems based on slavery, or systems based on positive religious or racial

discrimination.

Hart's view of minimum content for natural law has been criticised. It is contended that

this approach should not be confused with an attempt to establish some kind of "higher

law" in the sense of overriding or eternally just moral or legal principles, but is merely an

attempt to establish a kind of sociological foundation for a minimum content for natural

law. Although Hart refers to the implications of approximate equality between human

beings, he himself recognises that no universal system of natural law or justice can be

based upon the principle of impartiality, or that of treating like cases alike. The rule of

equality cannot be derived from any formal principle of impartiality. The idea of equality

or non-discrimination is essentially a value judgment which cannot be derived from any

assertions or speculations regarding the nature of man. No insistence on the idea of

impartiality or the rules of natural justice, or the "inner morality" of the law in the sense

used by Prof. Fuller, can afford a basis of arriving at such a principle as that of non-

discrimination.

13

CHAPTER- 4

A).CRITICISMS

1).Rudolf Stammler(1856-1938)

1).Max Weber has given a detailed criticism of Stammler's concept of legal science.

According to him, the alleged formal categories are in fact categories of progressive

generalisation, the more general ones being relatively more formal than less general ones.

Even if a purely formal concept of law can be imagined, it is incomprehensible how

Stammler can maintain throughout his work the illusion that a purely formal idea of law is

capable of material guidance to the lawyer. Philosophically, his fallacy is that he adopts the

different parts of Kant's philosophy but destroys the basis of Kant's system.

2).Dr. Friedmann writes that Stammler was torn between his desire as a philosopher to

establish a universal science of law and his desire as a teacher of civil law to help in the

solution of actual cases. The result is an "Idea of Justice" which is a hybrid between a formal

proposition and a definite social ideal, kept abstract and rather vague by the desire to remain

formal. Stammler produces solutions dependent on very specific social and ethical valuations

which it was his chief endeavour to keep out of an idea meant to be universal.

2).John Rawls(1921-2002)

1).The view of Prof. Rawls has been criticized on many grounds. One major attack launched

by more than one critic is to question whether his conclusions follow from his "original

position." It is maintained that the whole concept of "original position" and "veil of

ignorance" and what it covers and what it does not cover only provide a semblance of

14

justification for reaching certain desired conclusions.

2).Prof. Dias points out that Prof. Rawls has not succeeded in showing how his principles,

desirable as they may be, derive from reason. The thrust of his theory is for stability. He puts

emphasis on obedience grounded in fairplay. Law is only one institution of social justice.

3).John Finnis

1). It supports certain ambiguity. It does not distinguish law from other norms.

2). No solution if dispute arises between basic goods.

4).Lon Luvois Fuller(1902-1978)

1).Professor H.L.A. Hart has criticized fuller’s theory of natural law for it confuses

‘morality’ with ‘efficiency’.

2). Fuller does not develop the relationship between the form in which legal rules are

expressed and their content.

5). H.L.A. Hart

1).Hart's view of minimum content for natural law has been criticised. It is contended that

this approach should not be confused with an attempt to establish some kind of "higher law"

in the sense of overriding or eternally just moral or legal principles, but is merely an attempt

to establish a kind of sociological foundation for a minimum content for natural law.

2). D'Entreves points out another gap in his treatment of natural law by Hart. While Hart

accepts the positivist view that the validity of a legal norm "does not depend in any way on

its equity or iniquity", he maintains that natural law contains "the elementary principles

which man must respect as long as men are what they are and propose to set up a viable

society." D'Entreves asks: "Are we to conclude that natural law is a central and privileged

sphere of morality distinguished by its sacred and inviolable character?" Does this mean that

outside the area of the minimum content laws of any iniquity may stand? and even within it,

what is the status of laws which flagrantly violate the minimum protection for which Hart's

natural law stands? Are such laws law and, if so, what, if any, is the right of resistance? To

15

what extent can "evil laws" permeate a system before that set-up becomes no more than a

suicide club?

CHAPTER-5

A).Impact of Revival of Natural Law

The evolution of United Nations organisation and human rights could be regarded as result of

natural law may be regarded as those fundamental and inalienable rights which are essential

for life as human being. Human rights are the rights which are possessed by every human

being, irrespective of his or her nationality, race, religion, sex, etc., simply because he or she

is a human being. Since human rights are not created by any legislation, they resemble very

much the natural rights. Any civilized country or body like the United Nations must

recognise them. Members of the U.N. have committed themselves to promote respect for and

observance of human rights and fundamental freedoms.20 International concern with human

rights as enshrined in the United Nations charter is not a modern innovation. The Charter of

the United Nations represents a significant advancement so far as faith in and respect for

human rights is concerned. The appalling atrocities of the Nazis against the Jews and against

other races during the Second World War led to a strong movement for the international

protection of fundamental human rights, and the Charter contains numerous references to

them.21 U.N. Commission on Human Rights is established by the Economic and Social

Council in February, 1946 is “the nearest approach to permanent machinery for the

supervision of the problem of protection of human rights. Other U.N. Bodies primarily concerned

with human rights are Committee on the Elimination of Racial Discrimination, Human Rights

Committee, U.N. High Commissioner for Refugees etc. The Declaration “...is the mine from

which other conventions as well 1national constitutions protecting these rights have been and

are being quarried." One of the 1st reasons for the inclusion of the provisions concerning

20 Lauterpacht, International Law and Human Rights, op cit, at p. 15221 J. L. Briefly, The Law of Nations, Sixth Edition (1963), p. 292.

16

human rights in the U.N. charter was the bitter experience which the mankind had undergone

during the First and second World Wars when large scale violations of human rights were

made. Thus large-scale violations of human rights during two World Wars, especially the

Second World War, including the Nazi atrocities were fresh in the minds of the framers of the

U.N. Charter. That is why, one of the first decisions that the General Assembly took was to

prepare an International Bill of Human Rights. The Declaration include the following civil,

political, economic, social, cultural rights such as Right to life, liberty and security of

person.22 Prohibition of slavery and slavery trade23, Prohibition of torture, cruel, inhuman or

degrading treatment or punishment24, Right to be recognized as a person before law25, Right

to equal pay for equal work26, Right to just and favourable remuneration27, Right to form and

to join trade Unions28,Right to rest and leisure29. The universal declaration has exercised a

powerful influence both nationally and internationally. The provisions of the Universal

declaration of Human Rights have influenced various national constitutions enacted after the

adoption of the Universal Declaration. For example, the Constitutions of Algeria, burundi,

Cameroon, Chad, Democratic Republic of Congo, Dhaomey, Guniea, Gabon, ivery Coast,

Madagascar, Mali, Mauritiana, Niger, Senegal, Togo and Upper Volta (when attained

independence between 1958 and 1964), the peoples of these countries solemnly affirmed

their devotion to the principles and ideals of the Universal Declaration.

The Indian Constitution bears the impact of the universal Declaration and this has been

recognised by the Supreme Court of India. In recent years, the ideas of natural justice have

become more and more important and have been relied upon by the Supreme Court of India

and High Courts in their decisions. While Inferring to the Fundamental Rights contained in

Part III of the Constitution in Kesavanand Bharti v. State of Kerala30 Sikri, C. J. of the

Supreme Court observed : “I am unable to hold that these provisions show that some rights

22 Article 323 Article 424 Article 525 Article 6

26 Article 23, para 2.27 Article 23, para 3.28

Article 23, para 4.29

Article 24.30 AIR 1973 SC 1461,1536; See also Patanjali Sastri, C. J. in State of west

bengal v. subodh gopal, AIR 1954 SC 92;1954 SCR 587,596; per Hidayatullah, J. in Ujjamabai v. State of U.P., (1963) ISCR 778 , 926-927: AIR 1962 SC 1621 ; Moti

Lal v. State of U.P., 1LR (1951) 1 All 269.

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are not natural or inalienable rights. As a matter of fact, India was a party to the Universal

Declaration of human Rights...and that Declaration describes some fundamental rights as

inalienable. In maneka ghandhi v. Union of india case the court observed that natural

justice is a great humanising principle intended to invest law with faireness and to secure

justice. Even the Soviet Constitution could not escape the influence of the Universal

declaration as Chapter 7 of the draft Soviet Constitution contained "the Basic rights,

Freedoms and Duties of Citizens of the U.S.S.R.”. In A. K. Kraipak v. Union of India31, the

Supreme Court observed that the aim of the rules of natural justice is to secure justice or to

put it negatively, to prevent miscarriage of justice. These rules can operate only in areas not

covered by any law validly made. They do not supplant the law of the land but supplement it.

Important world conferences on Human Rights have also been taken place like international

conference on human rights or Tehran conference(22nd April to 13th may, 1968), world

conference on human rights, Vienna(14th to 15th June 1953) or Vienna conference etc. All the

above can be seen as the result of impact of revival of natural law in the 20th century.

31 1969

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CONCLUSION

“From the beginning, man, in trying to understand what law must be, has been seduced by the

concept of natural law as against the biblical insistence on supernatural law.”32 May God be

pleased to end that seduction among his people so that they may be equipped with the

infallible Word of God, “the sword of the Spirit,” as they go forth to expand the kingdom of

God and establish justice in the earth. This brief survey of the content of ‘Natural Law’ has

varied from time to time. It has been used to support almost any ideology, absolutism,

individualism and has inspired revolutions and bloodshed also. It has greatly influenced the

positive law and has modified it. The law is an instrument not only of social control but of

social progress as well, it must have certain ends. A study of law would not be complete

unless it extends to this aspect also. The ‘Natural Law’ theories have essentially been the

theories regarding the ends of law. The ‘Natural Law’ principles have been embodied in legal

rules in various legal systems and have become their golden principles. Natural law is one of

the more difficult subjects that a person can encounter. Whitehead states: “The concept of

natural law is one of the most confused ideas in the history of Western thought.” 33This is due

to the fact that there are various conceptions of natural law, and because even those who are

in basic agreement on natural law theory often cannot see eye to eye on the particulars. 

Towards the end of the 19th century, a revival of the ‘Natural Law’ theories took

place. It was due to many reasons: First, a reaction against 19th century legal theories which

had exaggerated the importance of ‘positive law’ was due and theories which over-

emphasized positivism failed to satisfy the aspirations of the people because of their refusal

32 Rushdoony, The Politics of Guilt and Pity, p. 99.33 John W. Whitehead, The Second American Revolution (Westchester,

IL: Crossway Books, 1982), p. 181.

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to accept morality and ‘reason’ as element of law; Second, it was realized that abstract

thinking or a priori assumptions were not completely futile; Third, the impact of materialism

on the society and the changed socio-political conditions compelled the 20th century legal

thinkers to look for some value-oriented ideology which could prevent general moral

degradation of the people. The World War 1 further shattered the western society and there

was a search for a value-conscious legal system. All these factors cumulatively led to revival

of Natural Law theory in its modified form different from the earlier one. In spite of this

confusion, there has been enough agreement among natural law thinkers in the West to make

it possible to give a general summary of the natural law position and to identify its major

claims.

Natural law and natural rights follow from the nature of man and the world. We have

the right to defend ourselves and our property, because of the kind of animals that we are.

True law derives from this right, not from the arbitrary power of the omnipotent state. Natural

law may seem to suffice for those who have no higher vision than the restoration of “family

values” or “traditional values” to our culture. But for those who understand the rebellious

autonomy inherent in natural law theory; for those who desire to bring every sphere of life

under the authority of God and His Word; for those who long to see the crown rights of Jesus

Christ acknowledged by all — including presidents, governors, senators, representatives,

judges, and “we the people” — natural law theory must be firmly rejected.

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SUGGESTION

The term natural law has been understood to mean a variety of things to different people at

different times viz. ideals which guide legal development and administration, a basic moral

quality in law which prevents a total separation of the “is” from the “ought”, the method of

discovering perfect law, the content of perfect law deducible by reason and the conditions

sine quibus non for the existence of law. The “is” and “ought” aspect of law cannot be

separated and interpreted or studied alone as they are complementary to each other. The

morality and law cannot be separated from each other as the law can be tested as just or

unjust on the basis of morality. A law in contravention of morality cannot fulfil the needs of

the society as the morality is the essence or need for the existence and social solidarity of

society. The natural law philosophy at present time is occupying a prominent role in the

justice delivery system. The concept of natural justice has been well versely used and

interpreted by the Indian jurists in various cases. At last all schools of jurisprudence hold

their own importance as where one school is unable to answer the question another school

can be referred for its answer. The natural law principles should be taken into consideration

before making any law so that it can fulfil the needs of the society.

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BIBLIOGRAPHY

Mahajan .V.D, Jurisprudence and Legal Theory, Eastern Book Company, Fifth

Edition.

Dr. N. V. Paranjape, Studies in Jurisprudence and legal theory, Central law Agency,

6th edition.

Rushdoony, The Politics of Guilt and Pity.

Whitehead John W., The Second American Revolution.

Lauterpacht, International Law and Human Rights.

Briefly J. L., The Law of Nations, Sixth Edition (1963).

Dias R. M. W, Jurisprudence, 5th Edition, Indian Reprint (1994).

Lloyd Dennis, Introduction to Jurisprudence (1959).

Stammler, Theory of Justice (Translated by Husik).

Allen C. K, Law the Making (1964).

D. Beyleveld, and R. Brownsword, Law as a Moral Judgment (1986).

W. Friedmann. Legal Theory, Third Indian (Reprint 2003).

Fuller Lon L., The Morality of Law, revised edition (New Haven : Comn. Yale

University Press, 1969).

Hart H.L.A., The Concept of Law (1961).

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