Natural School; Jurisprudence of Law of Nature

▪ Suman Acharya

Abstract
Natural law has different eclectic thought. It can be classified as ancient natural law; dark
period; medieval period; social contract period; enlightment period; and revival period.
Under ancient natural law, there are the theories of Greek and Roman philosophers
whereas Dark period is represented by St. Thomas Augustine; medieval period is
embodied by St. Thomas Aquinas; classical period is exemplified by distinctive social
contract theories of Hobbes, Locke and Rousseau; enlightment period is epitomized by
Kant; downfall period is pictured by emergence of positive school and revival period is
symbolized by Stammler, Finnis and Fuller. Finally, HLA Hart also accepted minimum
content of natural law not as a criterion of validity of positive law but as a supportive
qualification of positive law. Additionally, destiny, order and reason are the part of
natural law for Heraclitus, Socrates rejects manmade law and accepts afterlife law of
God, Plato supports philosopher King and harmony of various spoons, and Aristotle
holds on local justice with distributive and corrective justice. Even in ancient natural law,
there were Sophist and Stoics. Sophists advocated positive philosophy whereas Stoics
championed natural philosophy with perfections. Cicero argues that too many laws
exploit the justice. During dark period, there was conflict between Church and State. St.
Augustine took the side of Church law whereas in medieval period St. Thomas Aquinas
trusts natural law and manmade law in parallel. In social contract theory as a movement
of renaissance, Hobbes supports absolute government, Locke embraces limited
government and Rousseau carries general will of people. Kant favors transcendental
aspect of law and individual freedom as methodical approach. After the lesson learned
from downfall of natural law, Stammler props law as the variable content, Finnis adapts
common goods and Fuller holds up inner and outer morality. Finally, HLA Hart, a
positivist philosopher, welcomes minimum content of natural law as a subsidiary part of
positive law.

 Advocate/Nepal (Ph.D.)

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Introduction
The concept of natural law evokes the principle of morality, equality, equity, fairness,
justice, fraternity, rules of law, check and balance, separation of powers, reason, values,
transcendental authority, and rationality. Reason compatible with nature is acceptable
and reason incompatible with nature is unacceptable. Priori method is applied to
determine supreme standard. Human law is comparatively weak because of the limited
capacity of human to understand the rule of nature. It always appeals to higher
standard. Human rights and fundamental rights are the concept of natural law.
Natural law is higher law, law of nature, divine law, moral law, universal law, law of
god, unwritten law which is devised from human reason. Morality, justice, ethic, right
reason, good conduct, equality liberty, freedom, social justice, democracy are
synonymous with natural law. Del Vecchio, an Italian Jurist, defines natural law as the
criterion, which permits us to evaluate positive law and to measure its intrinsic justice.
Natural law school is a vital school of jurisprudence which attempts to study law from
philosophical, abstract and ideal angle with reference to nature, god, reason or
conscience; all of which are beyond and independent of human power, control or
authority that are such a ideal notion which explains what is good or what is evil or
what is right or what is wrong. It focuses on fairness for the betterment of the human
beings. It rejects all unjust law supporting morality, which is a rational foundation of
moral judgment.
Natural law, therefore, should not be considered as a figment of imagination. Natural
law is binding over the entire globe in all countries, and at all times, no human law is of
any validity if contrary to this. It is dominant in human world from the time
immemorial to now. Earlier, it was reflected in the realm of ethics, politics, religion, or
supernatural issues whereas recently it is unchallengeable weapons of modern political
and legal ideologies.
There is diverse thought in the realm of natural law, which are method and content of
natural law. Natural law of method is the older and ancient method to devise natural
law through human reason and was prevalent from ancient period to early Middle Ages
in line with the religious philosophy. It concerned itself with trying to discover just
rules to meet ever varying circumstances. It is a prescription for rule-making and not a

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catalogue or list of rules. Natural law of content was a feature of the renaissance and
revival period. It attempts to deduce entire bodies of rules form absolute principles in
the realm of positive law. There was manifestation of the natural rights accompanied by
schemes for ensuring perpetual peace. Natural law was suggested to include in the
content of positive law when it reached its nadir with supersede of positivism. The
excesses from a rigid adherence to formalism of positivism forced to accept the
principle of natural law in modern legislation as positivism failed to give guidance
through accepted moral and social beliefs. Natural law of content is able to meet the
problem of today and to fill the gap of positive law.
Ancient Natural Law
Greek philosophers Sophists, Socrates, Plato, and Aristotle are the pioneers of western
jurisprudence based on ethical and political speculation. Greek thinkers laid the basis of
natural law and their essential features. Earlier, poets like Homer Hesiod, Solomon
presented the concept of justice through folk poem. Later, it was converted into
philosophical debate.
Heraclitus (535-475 B.C.):
Heraclitus, a weeping philosopher, adumbrated on the logos in common, was the first
Greek Philosopher founding natural law philosophy. The idea of natural law aimed at
morality with right reason and good conduct in human life. Destiny, order and
reason are the founding character of natural law. The society is in flux like an ever
newer water flows on those who step into the same rivers. All entities move and no
entities remain static. Strife is necessary for social harmony that is the ground to
establish justice in society as the balance between the strife between and among
opposite force. All things existed because of conflict of opponent and sum of things
flows like a stream.1 Human must follow the common and should not work in own
judgment. There is continuous transformation as the way up and the way down. The
death of the fire is the birth of the air and the death of the air is the birth of water. Man
character reflects a divinity so the characters of the people are their fate. The human
custom does not reflect wisdom whereas the custom of god reflects wisdom. There is
necessarily the difference between human concept of justice and god concept of justice

1
Vide Heraclitus, available at https://www.iep.utm.edu/heraclit/, visited on 9/22/2019.

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as god is always fair, just and good that are not found in the human. Humans are not the
reflection of the God. Nature deters the tyranny of man. Nature is something external
and outside of man. It is the order of things, which embodies reason. Reason or right
reason is a means for maintaining certain order between human beings and human
behaviors, which focuses on what is right and what is wrong.2
Socrates (470 – 399 BC):
Socrates was the founder of western philosophy and is concerned essentially with
concrete problems of social and individual life. Human insight distinguishes between
good and bad. Virtue is knowledge and whatever is not virtue is sin. Socrates sensitizes
justice as natural justice and legal justice; natural justice is uniformly applicable
universally but legal justices are not uniform from place to place. Natural law is
necessary for security and stability and is based on human reasoning by devising
through insight truth and rules of morality. Socrates was great inquirer of truth and
moral values and not a dogmatist. He emphasizes upon practical morality based on
scientific outlook. Virtue is knowledge and whatever is not knowledge is sin. Virtue is
sufficient for happiness. No one desires evil and no person makes mistake or error
wittingly. He is against the pursuit for material wealth. Real happiness is found after
death and material wealth has no value in the earth. The wise man only can understand
ideals belong in a world. Wiseman is suitable to govern over other but so is not found
in democracy because there are no wise men in a state in the democracy. Socrates is
also criticized on the ground that his philosophy is obscured with the philosophy of
Plato, as Socrates appeared not in any written documents. He is the supporter of mystic
world because he rejected to escape in the time of his execution with poison. There is
the influence of cynicism and stoicism in his philosophy. There is the problem of
ambiguity and reliability in his philosophy. Some criticizes him for being homosexual.3
Sophist (450-400):
Sophists are the group of paid teacher of the ancient Greek and Roman period. They
use the method of rhetoric and philosophy to teach excellence, ethical and moral
values, and virtue to the young political leader and the people from noble class. They

2
Vide Heraclitus, available at https://plato.stanford.edu/entries/heraclitus/, visited on 9/22/2019.
3
Vide Socrates, available at https://plato.stanford.edu/entries/socrates/, visited on 9/22/2019.

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used to teach an art of speaking and writing. They provided education for those who
paid money for them. Protagoras, Hippias, Thrasymachus, Callicles, Antiphon, and
Cratylus are some of them. Protagoras is taken as pioneer who started this method of
teaching with payment. They were able to provide every answer of the people with
their wide involvement on the field of philosophy. They taught on duties of citizenship
and inquired into the basis of political obligation and social morality in general.
Parmenides and the Pythagoreans recommended to preserve stability and postulated for
obedience to law. Sophists argue base of the natural law is necessary for lawmakers but
not the nature and reason. Socrates and Plato rejected the tradition of Sophist on the
ground that they unnecessarily concerned on payment. They used to teach morality and
value but their actions are different than their statement paradoxically.
Plato (427-347 B.C.):
As Plato is the disciple of Socrates, also influenced by Pythagoras logic, was born in
the family of aristocracy, has supported aristocratic attitude to prevail in society as they
perform task guided by rationality and reason in the form of divine reason in his
writing Republic written about 380 BC with Socratic Dialogue. Plato used a method of
reasoning and intuitive knowledge to represent the social philosophy with the theory of
imitation done by the people to establish their system. He argues that there are two
kinds of goods: one is limited and another is unlimited; limited goods consist of power
and wealth and unlimited goods consists of wisdom and beauty. Balance is required to
run society properly. Law should represent common will of all the people of
community based on law of nature by utilizing the reason to harmonize the capacity of
people.4
Spoon and Harmony
Plato is the supporter of ideal State: a state made consisting of rulers, soldiers and
people, and philosopher King. A person from society with the philosophical knowledge
has to be elected and taught all the philosophy of society and only allowed to rule the
nation. Otherwise, there will be perversion and injustice. Philosopher King has to
harmonize the people based on capacity or spoon. A person with higher capacity should
be allowed in the higher spoon although he gets birth in lower spoon. If this person

4
Vide Edger Bodheimer, 1997, Jurisprudence: The Philosophy and Method of the Law, pp.7-9.

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cannot work skillfully the higher position, then only they will be reinstated in their own
position. Ideal state includes perfect division of labor based on the capacity of people in
society as mentioned hereunder.
▪ Golden Spoon: This spoon is entitled to the people working with rationality and
reason. Rulers and Philosophers king are allowed to get this spoon as they are
guided by high values. Wisdom is the principal feature of this class of people.
Philosopher King makes administration of justice with the sole of reason.
▪ Silver Spoon: They are the protective class of society and required to be brave
and spirited to work with courage for peace and security of society and people.
Fortitude is the main feature of this class of people with the sole of spirit.
▪ Copper and Iron Spoon: Copper spoon is assigned to the craftsman; generally
skillful professional gets this status i.e. priest, whereas Iron spoon is assigned to
productive class like farmer, merchant, labor, carpenter, and plumber etc. They
work with physical initiatives without wisdom. Temperance is the inherent
character of this class of people with the soul of desire without harming other.
Political System
State is required for the justice and its realization and as the institution of justice as a
means to an end. So, intelligent man has to rule the nation. However, no such intelligent
person can be found in the state system other than aristocracy as mentioned hereunder.5
▪ Aristocracy: The nation ruled by qualified person is aristocracy. Aristocrat refers
to best citizen of the nation. During Greek and Roman period, this political
system was taken as best. They are allowed because they thought to be rational.
He prefers elected King with philosophical knowledge.
▪ Timocracy: After degeneration of aristocracy, people with wealth will be there in
the ruling system and they pay more attention on money and wealth rather than
social responsibility. They are fonder of love of honor. It is the degenerated from
of aristocracy.
▪ Plutocracy: The state ruled by wealthiest person is plutocracy. It is degenerated
form of Timocracy. It is not a principled state system but has depicted in practice.
When Timocracy degenerates, Plutocracy will be established.

5
Vide L B Curzon, 1993, Lecture Notes on Jurisprudence, Cavendish Publishing Limited,p.15.

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 ▪ Democracy: It is the rule by very few people ultimately in the name of majority.
No justice can be found in the democracy. Lower class people get access in the
power and anarchy will be established. Unnecessary desire to get wealth hampers
justice system. Democracy is the degenerated form of Plutocracy.
▪ Despotism: Single entity or group exercises the absolute power without any
justice. Such individual or group exercises unlimited power. It has pejorative use
in practice because person with government abuses power and authority to
oppress people. Finally, the degeneration of democracy results despotism.
Aristotle (384-312 B.C.):
The philosophical concept of Aristotle is based on teleology, which is purposive in
nature. ‘Everything comes to the human being for end’ is his concept of teleology.
Aristotle was studied in Platonic Academy. Being the disciple of Plato, Aristotle accepts
Plato’s idealistic rationality concept.
According to him in the absence of law or rule, human being turns to worse or cruel one.
Hence, law is necessary for the goodness of society. For him, if there is law in society
there is goodness/ humanity. Because of universality nature of natural law, it is inherent
in nature. For the purpose of maintaining local justice, manmade law is accepted.
Conversely, due to different circumstances sometime universality of law cannot be
applied in all scenarios. In that situation equity has to be maintained for the purpose of
justice and it is related to sprite of law giver. He equally supports to follow ethics and
equity in his writing Ethics, Rhetoric and Nichomachean Ethics.
Aristotle has classified justice as distributive and corrective justice. However, his
distributive and corrective justice is taken as natural justice. Distributive justice is related
to the proper distribution of all divisible things, as dignity, owner, property which has to
be maintained equal for equal and unequal for unequal. If there is the problem in
distribution pattern, corrective justice is activated. Therefore, it is also called remedial
justice and directly related to compensation. There are two types of corrective justice, one
is applied for voluntary action like, buying, selling, lending, pledging etc. and the other is

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involuntary action which refers to theft looting, dacoit, illicit enrichment etc. 6 For
Aristotle, the concept of state is as follows:7
• Monarchy: It is oldest version of state system, which is rejected by Aristotle
because it is absolute in nature and objectionable. It is objectionable because it
prefers hereditary. Monarchy emerges to meet the needs of primitive types of
society.
• Aristocracy: For Aristotle, aristocracy is the best citizens. Aristocracies are group
of people having natural endowments and standards of educational attainment. It
equips them to rule the government and one of the favored groups by Aristotle.
• Polity: Polity is the type of state group which rest upon the constitution allowing
the rule of the mass under the law and a system of justice.
• Tyranny: It is degenerated form of Monarchy ruler's. They have selfish wishes
over justice and law.
• Oligarchy: It is the corrupted form of the Aristocracy. They favors confined
circle of people supporting government.
• Democracy: It is a degraded form of polity. The characteristic of this type of
governments are lack of moderation, absence of justice and the dominance of
selfishness.
Aristotle emphasized that some functions can be maintained by majority people of
society. It does not mean that they have to be suppressed. Aristotle supports slaves,
women and other for equal treatment as per justice and clarifies that if they suppressed
they will be mean.
Stoics:
Stoics are widely influenced by the concept of God and its superiority. ‘Do your duty and
you don't have any kinds of right’ is the key concept of Stoics. In the prior stage, their
theory is based on Aristotelian ideas but later they transformed into the ethical theory.
According to them, the entire universe is governed by reason. Man’s reason is a part of
the universal reason. And when he lives in reason, he lives naturally. So the man is
subject of the law of nature. To fulfill necessity, individual has to live in society. Though,
6
Vide Edger Bodheimer, 1997, Jurisprudence: The Philosophy and Method of the Law, pp.10-12.
7
Vide L B Curzon, 1993, Lecture Notes on Jurisprudence, Cavendish Publishing Limited, pp.17-
18.

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they have certain duties over society. Zeno, Gaius, Cicero are the prominent of the stoic
philosophy. Zeno was a pre-Socratic philosopher and taken as a father of Stoics school.
He focused on duty of human being. But he was not belonged from Roman. Moreover,
Gaius was the Roman philosopher. He states that people are governed by laws and
customs but applied partly. So, natural law is the right law which is universal in
characteristic and non amendable. Natural law is best than positive law. The basic
characteristics of stoic philosophy are sincerity, honesty, uprightness, fortitude,
compensation, justice, humanity and universality.8
Roman Period:
In Roman Period, there was the concept of various laws as jus civile, jus gentium and jus
naturale. Jus civile is applied for Roman citizen; Jus gentium is applied for foreigners
and slaves and jus naturale is applied for both of them including the people of universe.
However, slaves have not any rights because they are not treated as human being in
Roman.
During the Roman period, there was the system of punishment for crime and wrongdoer.
Hadrian made the provision to punish for those fathers, who killed his son. In the same
way Augustus supported women’s contractual rights despite their matrimonial relation.
Roman society is influenced by Greek philosophy at that time. Despite the conquest of
Roman over Greek, they also accepted civilization and all philosophical elements of
Greek period. When the power of Roman state is waned, there is dispute between the
church and the state claims their superiority.
Marcus Tullius Cicero (106 BC-43BC):
Cicero is the statesman and orator. He strongly supported the relevancy of eternal law.
He classified law as eternal law, divine law and manmade law. For him, eternal law is
superior and true law. Eternal law cannot be curtailed, amended and revoked because
attempt to curtail it is unholy; to amend it is illicit and to revoke it is impossible. He
strongly argues that law cannot be varied from society to society and time to time. Law is
universal and applied everywhere in the similar way.9 However, the necessity of state is

8
Vide Edger Bodheimer, 1997, Jurisprudence: The Philosophy and Method of the Law, p.13.
9
Vide Cicero, De Re Publica, in M.D.A. Freeman, 1994, Lloyd’s Introduction to Jurisprudence,
(6th ed.) Sweet & Maxwell, pp.137-138.

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inevitable which is supported by human being without mind. So the existence of law and
state both are necessary. People get freedom if they obey law and vice versa.
Dark Period (5th to 12th century)
St. Thomas Augustine (345-430):
St. Thomas Augustine was the chief representative of the natural law of this period.
According to him, natural law is the will of the God. Natural law is the means for joining
heaven and earth. Church is the real interpreter of Divine law which has control over the
state. He is migrated from North Africa and spread the Christianity in Roman Empire. At
that time, there was the conflict between power of the state and power of the church. St.
Augustine emphasized that Church has power to rule than state because state consists no
enlightened persons. Conversely, enlightened people with Godly power are only in
Church because they have contact with God and wisdom. He emphasized that before the
fall of human, they were God. But after their fall, they started to face various problem
and misery. They can get salvation only with the power of God. So, church power has to
be obeyed.10
Medieval Period
St. Thomas Aquinas (1225-1274):
St. Thomas Aquinas philosophy is based on Aristotle and Cicero. His philosophy is
regarded as Neo-Scholastic tradition of theological realism. He focused on common
goods of people which are supported by law. There was conflict between church and state
at that time and entitled it as the dark period. To deal with this conflict, he has to establish
religious philosophy again. On the on hand he has supported the state and the other he
established superiority of theology in his philosophy. 11
According to him, whole world is governed by the law made by the will or order of the
God. Eternal law is the true law. Aquinas divided laws into four categories as Eternal
Law as law of God’s mind, Divine law as the law of scriptures, Natural law which is
revealed thorough the reason of man, and Human laws as made by authority. Rationalism

10
Vide Edger Bodheimer, 1997, Jurisprudence: The Philosophy and Method of the Law, p.22.
11
Vide Ibid, pp.23-26.

10

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and idealism are based on eternal law which is supreme law. He classified law into
following categories:12
• Lex aeterna (Eternal law): The eternal law is the law of universe or cosmos
which are created by the God’s mind and wisdom.
• Lex Divina (Divine law): Divine law is the law of the God and completely
related with religion or theology. So, it is known as law of scriptures. It is created
by power of the God and presented in New Testament and Old Testament (Bible
before birth of the Christ).
• Lex Naturalist (Natural law): Natural law advocates law of nature. Human
beings participate in the eternal law and divine law through the operation of
reason. So, they have power or quality to distinguish right and wrong. Therefore,
this knowledge made them enlightened person.
• Lex Humana (Human Laws): It is created by human and directed towards the
attainment of the common good. It should protect the general interest rather than
the interest of the ruler or higher class. The precept of human law is to make
people live honorably. The state as an institution which has to supply the
necessary needs of men, procure their safety and well being. This law is variable
in accordance with the time and circumstances. It focuses on just/justice. Unjust
law is no law at all.
According to St. Thomas Aquinas, Natural law is not a perfect law because of the
following reason: self-preservation; attraction to opposite and care of family and
offspring. However, all men have curiosity to get the knowledge about God; enlightened
person reveals little truths as they have to live in society. Because of these reason, natural
law is not a perfect law because enlightened person doesn’t reveal truth fully.
Furthermore, Aquinas classified justice as Aristotle i.e. distributive and commutative
(corrective) justice.
Period of Renaissance
In Renaissance period, resurgence of new ideas in the fields of knowledge and
development are emerged. Renaissance is the outcome of printing press, transportation:

12
Vide Aquinas, Summa Theologica, in M.D.A. Freeman, 1994, Lloyd’s Introduction to
Jurisprudence, (6th ed.) Sweet & Maxwell, pp.138-143.

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Ship and compass. New discovery in the field of science and technology has great impact
in every discipline. Later, the field of law is also influenced with this concept. The
emergence of Protestantism in religion and mercantilism in the society gives new vision
in the field of law. Renaissance is called the classical period because it is foundation of
the modern law as distinguished from theology. This movement liberated the law in
society.
Hugo Grotius (1583-1645):
Hugo Grotius is the father of international law. He equally contributed in the field of
natural law. For him, the main purpose of natural law is not only for reason rather to
make right reason. He says that the world is created by God. But God never makes any
significant influences in the day to day life, men has to manage themselves. On the one
hand, he accepts the creation of the world depends on existence of God and on the other
hand he insists the God is irrespective in human life. It doesn't mean that he completely
rejects theology in law. He conceptualizes manmade law as child, natural law as parents
and divine law as grandmother.13
Hugo Grotius emphasized that man should not envy others belonging (property). If they
get it from other they should return duly and in case there is any defect they have to
maintain it or compensate them. Otherwise, punishment has to be established.14 Grotius
chief axioms (an established principle that is universally accepted within a given
framework of reasoning or thinking) are as follows:
▪ to abstain from that belongings of other person
▪ to return others goods if they have;
▪ to abide my pacts and fulfill promise made with other persons;
▪ to repay any damage done to another through fault;
▪ to inflict punishment upon men who deserves it; and
▪ To the law of nature Grotius opposed to the volitional law, it means ability to
make a choice or determine something.

13
Vide Edger Bodheimer, 1997, Jurisprudence: The Philosophy and Method of the Law, p.35.
14
Vide M.D.A. Freeman, 1994, Lloyd’s Introduction to Jurisprudence, (6th ed.) Sweet & Maxwell,
p.105.

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Thomas Hobbes (1588-1671) :
Hobbes philosophy is based on individualism, absolutism, utilitarianism and liberalism.
Though he advocates in the favor of absolute government, he stresses equal rights of the
life and accepts liberty and property for all conditionally. It means man wants to lead
commodious life. So, right to industry is granted to the extent that peace cannot be
violated. His concept is based on authoritarian notion which is necessary to protect the
people’s life. According to him, in ancient time human life was brutal, nasty, misery,
mean and short. They were treated every person as their enemy. There was no difference
between strong and weak; even weak can also kill strong. Because of the uncertainty of
life, people gathered in a form of social compact. Then, men surrendered their freedom to
mightiest authority to protect their lives and property by voluntarily entering into
contract. Because of their reason, people from society to society gathered and make one
sovereign. Then, sovereign provide them liberties. However, sovereign is not limited
rather it is absolute. Main duty of sovereign is to maintain law and order for the purpose
of life, property and liberty.15
Human being is inherently selfish, uncooperative and pugnacious. Therefore, to govern
sovereign absolute power suppresses them by using force. He believes that absolute
sovereign cannot go against its existence. Absolute sovereign is like Leviathan; a mortal
God, it means there is no just and unjust law. Sovereign can use tyrannical or bad laws to
establish peace. He has to respect people’s will. If he becomes tyrannical then he will get
punishment in his eternal death. People have the rights of revolution against monarch but
if revolution further deteriorates peace, it should be endured. God will punish such
monarch after death.16
John Locke (1632-1704):
Locke concept is against the absolute government of Hobbes. He argues that in early
period there was perfect freedom, cooperation and mutual support. Everybody uses their
own perception. Later, this freedom was changed into disorder and confusion of what to
do next. In regards of this uniformity, they entered into social contract and established the
state.

15
Vide T. Hobbes, 1651, Liviathan, in M.D.A. Freeman, 1994, Lloyd’s Introduction to
Jurisprudence, (6th ed.) Sweet & Maxwell, pp. 143-145.
16
Vide Edger Bodheimer, 1997, Jurisprudence: The Philosophy and Method of the Law, p.39-45.

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According to John Locke, life, liberty and property are inalienable rights of people which
are bestowed by law of nature. These rights are inviolable and necessary to lead their life.
So state has to protect life, liberty and property of citizen by using limited force, laws and
regulation.17
He advocates the separation of power between legislative and executive. However, the
dispute between them has to be settled by judiciary. In case of the absence of legislation,
executive branch of state can use prerogative for the purpose of social welfare and social
benefit. He argues that states organs are independent, separate and equal. One organ of
the state can dominate other. If sovereign uses excessive power or force, people
overthrow it by revolution.18
J.J. Rousseau (1712-1778):
Rousseau’s concept of law is general will of the people. He insists that the law should be
based on general interest. He was in favor of Autocratic will of parliament, which
represents general will of the people. Rousseau made this statement in his later period.
People are supreme in parliamentary system. In early time people had absolute freedom.
Happiness, equality and liberty were existed in primitive societies but it is lost in the
modern time because of property. There was no limitation in ownership of property.
Though, they were self centric and savage too. Later, they come to conclusion that to
form society they need general will of the people. For the formation of the society,
complete consent of people was used. However in decision making process, it is hard to
maintain cent percent participation.19 Majority of people take part there and make good
decision. Through such decision there will be social welfare or they work for social
benefit purpose. Rousseau argues that even if decision is made by majority of people,
even minority issues cannot be ignored because one person can go wrong but group of
people cannot go wrong and cannot go against minimum human values and standards.
Even if cities follow political body, its general will still be the natural law.20

17
Vide Edger Bodheimer, 1997, Jurisprudence: The Philosophy and Method of the Law, p.45-48.
18
Vide Locke, Two Treatise of Government, in M.D.A. Freeman, 1994, Lloyd’s Introduction to
Jurisprudence, (6th ed.) Sweet & Maxwell, pp.145-147.
19
Vide Edger Bodheimer, 1997, Jurisprudence: The Philosophy and Method of the Law, pp.53-59.
20
Vide J.J. Rousseau, 1994, Discourse on Political Economy and the Social Contract, Oxford
University Press, p.7.

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According to him, sovereignty is the essence of law and acts only by the means of law.
No one is above the law in the state. One who obeys the law is free because laws merely
reflect his will. If general will of people is against it, state will be dismantled. So his
concept leads supremacy of parliament. The concept supremacy of parliament may end, if
it works against the general will of the people. William Blackstone also supported
supremacy of parliament which is still existence in England. Rousseau breaks the
supremacy of natural law and right reason, and his abandonment of natural law is the
initiation of modern jurisprudence.
Enlightment period
Immanual Kant (1724-1804):
Transcendental idealism is the legal philosophy of Kant. It is related with sensory
perceptions. Real idea is not sufficient only through sensory perception of objective
world. Throughout our sense we come to realize that the knowledge is related not only
with physics rather beyond the physics. In this way by using sensory organs, human
being formulates the ideas where they have preconceived knowledge and it is guided by
pre-defined priori assumption. Moreover, Kant divided autonomy of ideas into two;
‘autonomy of reason’ and ‘autonomy of will’.21 Autonomy of reason establishes legal
standard and autonomy of will establishes moral standards. Both ‘autonomy of reason’
and ‘autonomy of will’ are necessary to form ideas. According to him, law is practicable
and reasonable which is conceived through human mind. It reflects in both law and
morality. Likewise, individual freedom is Kant’s supreme concept. However people
hardly realize perfect freedom in their practical society but they acquire it perfectly in
their mind.
There are two kinds of human nature; one is sensible and another is intelligible. Sensible
nature is related to emotion of human being whereas intelligible nature is related to
reason. If reason is supported by will it can be contaminated by emotion.
According to Kant, law, ethics and morality are related to intelligible nature of mankind.
He conceptualized two principles as categorical imperatives. Under ‘categorical
imperative’, he states that ‘act in such a way that the maxim of your action can be made
the maxim of an universal law (general action)’ and ‘an action is right only if it can

21
Vide Dias, R.W.M., (1904), Jurisprudence. Aditya Books Pvt. Ltd., p.475.

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coexist with each and every man’s free will according to universal law’ are included,
which are the maxim of universal law.22
According to him, every individual tries to exercise for freedom which is evaluated as
sum totality of freedom of all. These concepts are applied in law. The duty of the state is
to protect the freedom for all and apply the law generated form categorical imperatives.
Kant is against the despotic state concept. He stresses that separation of power is
necessary and emphasizes that the concept of peace and violence are incompatible things.
People can exercise freedom only in peace. Violence is against it. Therefore state has to
make a policy to control violence and support peace, which is related with peaceful
environment of social existence.23 Fichte contributes Kant to be recognized in society
through spread of his philosophy.
Revival period
Along with the downfall of natural law school, positive school couldn’t establish peace
and order in society. There was negative consequence of the first and Second World War,
which killed thousands of people and destroyed huge amount of property in the name of
war. In early 1930’s, there was the emergence of Nazism, which was the cause of killing
many people in gas chamber and in war. Moreover, there was the communist movement
and revolution, which also destroyed thousands of people as the influence of the Marxist
philosophy across the globe with the rise of communist philosophy. As a result, United
Nations Organization was established to discourage war and promote basic human rights.
It demanded the necessity of natural law in the form of declarations and treaty. As a part
of UN, Universal Declaration on Human Rights was issued and gradually other
instruments of human rights were codified and issued. Humanitarian law was also
established as strongest part of the morality in the time of war, which is supported by
both national and international law. International cooperation and development was also
expanded with subsidies, grant, and donation etc. Natural calamities killed many people
which is not under control of human beings. Refugees and internally displaced person
were increased. As consequences, there was the realization of justice and morality, which
included the principles of natural law in posited laws.

22
Vide Dias, R.W.M., (1904), Jurisprudence. Aditya Books Pvt. Ltd., p.475.
23
Vide Edger Bodheimer, 1997, Jurisprudence: The Philosophy and Method of the Law, pp.60-64.

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Rudolf Stammler (1856 -1938):
Stammler is the philosophical disciple of Kant and accepts the Neo-Kantian approach.
However, he followed the Kantian approach as a faculty of knowledge but not practice
it as the based approach. Majority of his philosophical content is influence by Kantian
approach, thus he is called Neo-Kantian.
Stammler is taken as the bridge thinker who accepts positive law on the one hand and
he equally supports natural law too. He published theory of justice in 1902 but later he
revised it. Stammler categorizes law as technical science and theoretical legal science.
Technical legal science is related to content of law whereas theoretical legal science is
related to justice, principles or standard. Content is the means to apply the standard of
justice in practical condition.
He has defined law as variable content, which has changing nature as per the necessity
of temporal, spatial and other circumstances. According to him judge have to apply
ideas of justice with the empirical analysis of situation supported by fact, figure and
evidence. For social existence, law has to support collective will of the people.
Rationality and reason are equally accepted. And freedom has to be measured not from
the individual approach rather from the social approach.24
Society is the sum of the free individual where person’s will is fulfilled as his/her
freedom. He rejects emotional concept. He further defines law as species of will, other
regarding, self authoritative and enviable; species’ will refers to control of behavior;
other regarding refers to monitoring in individual relation with other; self authoritative
refers to obligation and duty and enviable refers to desire of people. He says that
content of law is variable but the purpose of law supports human dignity, justice and
truthfulness. Stammler conceptualized principles of respect and principles of
participation as under.25
• Principles of respect
▪ The content of a person’s volition must not depend upon the arbitrary will
of another.

24
Vide Edger Bodheimer, 1997, Jurisprudence: The Philosophy and Method of the Law, p.138.
25
Vide Dias, R.W.M., (1904), Jurisprudence. Aditya Books Pvt. Ltd., p.480.

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 ▪ Every legal demand can only be maintained in such a way that the person
obligated may remain a fellow creature.
• Principle of participation
▪ A person lawfully obligated must not be arbitrarily excluded from the
community.
▪ Every lawful power of decision may exclude the person affected by it
from the community only to the extent that the person may remain a
fellow creature.
These principles have to be included in every rule of state. However, many philosopher,
Jurist and lawyer reject his concept because these principles are limited from the eyes of
varieties of law.
John Finnis (1940 to 2017) :
Finnis relies on the philosophy of common goods. According to him, justice is outcome
of fulfillment of the common goods. It is also related to natural rights of the people.
Finnis’s concept of common goods is appeared in society after he published natural law
and human rights in 1980 where he rejected objective goods.
According to him there are two types of goods: one is objective goods and other is
common goods. Common goods are necessary for every person but objective goods are
not necessary for all. So law is related to justice based on common goods. Though, his
concept is based on natural tradition in positive law. He emphasize that justice is
necessary in law but in the absence of justice no law can be disobeyed. Finnis offered
seven common goods of human as below:26
▪ Life: It is the issue of self preservation and self determination. Protection of the
integrity of the body is principal goal of natural justice.
▪ Play: It is the issues of performance and entertainment to lead happy life. The
method of play varies from person to person.
▪ Knowledge: Knowledge is the method to distinguish truth and false. It is the
result of curiosity.

26
M.D.A. Freeman, 1994, Lloyd’s Introduction to Jurisprudence, (6th ed.) Sweet & Maxwell, p.127.

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 ▪ Aesthetic Expression: It is the method of appreciation of beauty. In fact, it is the
language of the heart to realize the beauty, which is revealed duly and humanely.
▪ Sociability: It refers to friendship status of people. Based on the personal nature,
the friendship circle varies from person to person.
▪ Practical reasonableness: It serves the person to follow own method, life style,
character and intelligence.
▪ Religion: Religion is the subject matter of cosmic order. The reason of the human
mind is received from such cosmic law which is known as natural law. Religion is
also the matter of faith and the extent of human freedom.
He has further elaborated basic requirements of practical reasonableness by combining
these issues with the universal and immutable principles of natural law.27
▪ Morally right or wrong action has to be determined on the basis of rational life
plan, orientation and reason.
▪ Each and every common goods respected equally.
▪ No one can obstruct other person to participate in common goods.
▪ No one can accept a project, which are against common goods.
▪ Commitment has to be executed properly; it should not be taken lightly.
▪ No one should spoil opportunity; it should be utilized properly.
▪ No one can choose anything against common goods.
▪ Common goods accept by society should be respected.
▪ No one can go against his or her conscience.
▪ Person should not select apparent goods, which are simulated to common goods.
Thus, basic requirements of practical reasonableness are the active pursuit of goods;
coherent plan of life; no arbitrary preference among persons; no arbitrary preference
among values; detachment and commitment; limited relevancy of consequences; respect
for every basic value in every ac; requirement of common good and following one’s
conscience.28

27
Vide L B Curzon, 1993, Lecture Notes on Jurisprudence, Cavendish Publishing Limited, pp.46-
47.
28
Vide John Finnis, 1980, Natural Law and Natural Rights, Clarendon Press, Oxford, pp. 100-127.

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The contribution of Finnis in the form of books are Natural Law and Natural Rights,
1980, Fundamentals of Ethics, 1983, Nuclear Deterrence, Morality and Realism, 1987,
Natural Law, 1991, Moral Absolutes: Tradition, Revision and Truth, 1991, Aquinas:
Moral, Political and Legal Theory, 1998 etc. The book entitled the collected Essays of
John Finnis, 2011 is also published in five volumes.

Lon Luvois Fuller (1902-1978) :

Fuller is the opponent of the H.L.A. Hart; he strongly supports morality in positive law.
Law with morality justifiable is real law and positive law with morally unjustifiable is not
real law. So, every law consists of internal and external morality. Internal morality is
related to procedural aspect of positive law whereas morality of duty is related to
outer/external morality which is also called aspiration of morality.
Inner morality includes law must be existent; law must be published; law must not be
retrospective; law must be consistent over the period of time; law must be intelligible and
clear; law must not be contradictory; law must not be impossible to apply and there
should configuration between enacted law and administered law. So, generality of law,
promulgation, retroactive laws, clarity in laws, contradiction in the laws, laws requiring
the impossible, constancy of law through time, congruence between official actions and
declared rules determine the legality of law as a morality of aspirations.29
According to fuller, people never appreciate the human who accept the law. Those people
will be appreciated in society who are morally right, for example; if good swimmer saves
a drown child, he/she will be appreciated; if a person who is chronically ill and still
works for the support of the family then he/she is also be appreciated; if damsel
(unmarried) girl supports her oldest parent (father/mother) without her marriage she is
appreciated by society. In this way every morally justifiable action is acknowledged by
people of society. However, no person complying law is recognized by society. So, it is
meaningless to refer either somebody accepts law or not. Fuller presents the symbol of
hypothetical Speluncean Explorers in which group of four people follows cannibalism to
quest starvation in 4300 killing fifth member. Remaining group of four were prosecuted
in the Supreme Court of Newgarth; Chief Justice Truepenny affirms convictions but

29
Vide Lon L. Fuller, 1964, The Morality of Law, Yale University Press, pp.46-91.

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recommends clemency; Justice Keen also affirms convictions; Justice Foster and Justice
Handy sets aside convictions and Justice Tatting withdraws case and makes no decision.
Finally, convicted men were sentenced to death by hanging.30 It was the example of law
and morality emerging in future. L.L. Fuller is the author of Law in Quest Itself, 1940,
Basic Contract Law, 1947, Problems of Jurisprudence, 1949, The Morality of Law, 1964,
Legal Fictions, 1967, and Anatomy of Law, 1968.
H.L.A. Hart (1907-1992):
H.L.A. Hart is a great jurist who combines positivism with natural law. Although he is
positive philosopher, he supported natural law after the debate with Lon L. Fuller and
Devlin. For him, morality is not criterion of validity of law but it adds values in law.
There is no doubt that law is law whether it is just or unjust. However, if morality or
principles of natural law are implemented through positive law, it will be good law. It
does not mean that natural law is must in positive law. But it increases the efficiency of
positive law. If minimum content of natural law are applied in positive law, it will be
good law. However, in the absence of natural law, positive law does not lose its validity.
He has supported minimum content of natural law under following criteria.31
▪ Human vulnerability: There is no certainty in the life of the human being. They
are susceptible because of their age factor, social, political and economic, health
or other factor etc.
▪ Approximate equality: Law tries to establish equality but it is not possible
because of human desires. We assume it only but we never gain ultimate level of
equality in practice. Naturally there are inequalities. So, it cannot be corrected by
legal factor. So. if positive law accepts subject matter of natural law, it will be
good law.
▪ Limited altruism: Although a person desires to support needy people, they
cannot do so because of the scarcity of the resources. So, minimum content of
natural law may establish the scope of altruism.
▪ Limited Resources: There are always limited resources so that basic needs are
unfulfilled. Though, they manage their food, shelter, clothing, education with

30
Vide L.L. Fuller, 1949, The Case of the Speluncean Explorers, in M.D.A. Freeman, 1994, Lloyd’s
Introduction to Jurisprudence, (6th ed.) Sweet & Maxwell, p.45-58.
31
Vide HLA Hart, 1994, The Concept of Law, (2 nd ed.) Clarendon Press, Oxford, pp.193-200.

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 hard labor because it is not distributed equally. Some people are able to manage
it whereas other cannot do so. So, minimum content of natural law may establish
better society.
▪ Limited Knowledge and strength of will: People do not know all the discipline
of society. It is almost impossible to know everything by single person. The will
of the people is fluctuating in nature; once it is strong and next time it can be
weak. So, there is no consistency in the will of human beings. In such case,
natural law can be best one.
HLA Hart had the authorship of The Concept of Law, 1961, Essays in Jurisprudence and
Philosophy, 1983, Essays on Bentham: Studies in Jurisprudence and Political Theory,
1982, Punishment and Responsibility, 1968, The Morality of the Criminal Law, 1964,
Law, Liberty and Morality, 1963, Causation in the Law, 1959, The Ascriptions of
Responsibility and Rights, Proceeding of the Aristotelian Society, 1929. Hart is positive
to morality because of the debate with LL Fuller and Devlin. In his other writing of Hart,
there are sufficient examples of morality as well.
Case law on natural law
Many moral and ethical issues are included in the constitution and enacted laws of Nepal.
Even Supreme Court has included numerous moral issues and justification in the time of
decision making process. Some of the examples are as under.
• CIAA vs. Min B. Aryal: Previous decision cannot be ignored bluntly. It means
new decision can be made only with the cancellation of previous decision.
Decision without right to hearing is contrary to the principle of natural justice.
The direction of the CIAA must confirm jurisdiction.32
• Shambhu Prasad Sanjel vs. Government of Nepal: Equality law cannot
confirm absolute equality. Unequal law can be made if intelligible differentia is
occurred and rational nexus or objectivity is justified, which should be lawful.
Otherwise, discriminatory law cannot be enacted.33

32
NKP, 2074, Issue 9, Decision No. 9869, p.978, available at
http://nkp.gov.np/full_detail/8920/?keywords=Natural%20justice, visited on 9/21/2019.
33
NKP. 2064, Issue 9, Decision No. 7876, p.1513, available at
http://nkp.gov.np/full_detail/3880/?keywords=Natural%20justice, visited on 9/21/2019.

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 • Sarita Paudel vs. Government of Nepal: Because of psychological weakness
caused by adverse poverty, helplessness condition, lack of support, a sudden force
is evoked against closed family member including children. Concerned authority
should study to find out root cause of the problem so that such sudden attack can
be prevented. It was the case of murder of the infant with psychological
retardation and deep poverty.34
Conclusion
Law is the dictate of reasons, which have various dimensions. Early natural law supports
theology and reason whereas medieval natural law supports both natural law and human
law. Social contract theory secularizes natural law from religion and Kant supports self-
enlightment. After the period of Kant, there was downfall of natural law, which couldn’t
establish justice and order in society. Finally, natural law was revived back again.
Stammlers supports principle of respect and principle of participation whereas Finnis
supports common goods. Additionally, Fuller endorses inner morality and outer morality
as a part of law. Broadly, there are two categories of natural law; one is natural law as a
method and another is natural law as content.
‘The End…’

34
NKP, 2071, Issue 1, Decision No. 9109, pp.1153, available at http://nkp.gov.np/full_detail/11,
visited on 9/21/2019.

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