Chapter 6: Legal Theories. a). Natural School of Law

Note of Chapter 6: Legal Theories. a). Natural School of Law (thorough Note).

Chapter 6: Legal Theories.

a). Natural School of Law

Classical Naturalism

This is first stage of natural school of law is classical school of law. This can be divided in to three different division:

Greek Period
Roman Period (Cicero)
Christian Period

Naturalist	Basic Concepts
Heraclitus (530-410 B.C.)	He is the first Greek Philosopher. The idea of natural law aimed at morality and righteous conduct in human life. Three features of natural law are destiny, order and reason.
Socrates (470 – 399 B.C.)	Human insight of man has the capacity to distinguish between good and bad. Virtue is the knowledge and whatever is not virtuous in sin. Two kinds of justice are natural justice and legal justice. Natural Justice is uniformly applicable but legal justice differs place to place. Natural law is necessary to country for security and stability. Natural law supports to human reasoning.
Plato (427 – 347 B.C.), Modern Enemies and Theory of natural Law	Justice lies in reason and wisdom controlling passion and desires. Concept of ideal state is Republic. Only intelligent and rich person should be the king.
Aristotle (384 – 322 B.C.)	Natural law is the man's insight for eternal moral values. Man is the creation of God who possesses insight and reason to articulate his actions.
	Natural law is the reason unaffected by the desires. Positive law should incorporate standard principles of natural law. Ideals of natural law have emanated from the human conscience and not form human mind. Positive law is the outcome of human mind.
	Natural law is the product of wisdom and reason.

Three Roman Laws	Jus Civile is the law for applying to citizens of Roman. Jus Gentium is the law for applying to foreigners. Jus naturale is the law for applying to Roman as well as foreigners. So that natural law had the universal application.
Cicero	The true law is the right reason in agreement with nature of the universal application, unchanging and everlasting.

	Natural law is the reason of the intelligent man or faculty of reasoning that is valid for all nations at all times.
Christian Period	Church came in the power; fathers are regarded as equal to God. All the administration of state was carried out by the church. The church was regarded as the exponent of divine law. According to Father, Christian all laws, government and property, were the product of sin and so human laws contrary to the law of God were to be discarded and ignored.

Medieval Naturalism

St. Augustine

There should be a new legal order and political ideology based on morals.
All laws are either divine or human.
Divine wisdom is in moral precepts or Holy scriptures.
Both divine and man-made laws are supreme and unity of universe.
Slavery, property, state etc. are the evil desire.
Natural law accepts the supremacy of law.
Two facets of human activities are ruler's worldly activities and pope's Godly activities.
Majority view was the state and law, which were the gift of agreed people for authority.

Thomas Aquinas (225 – 1274 A.D.),

Law is an ordinance of reason to protect common good of community and to avoid an evil.
Primary precept of law is goodness.
Classifications of laws are (i) law of Godor Eternal law, (ii) Natural law through reason, (iii) Divine law of the law of scriptures, (iv) Human law is called positive law.

Thomas Hobbes (1588 – 1679 A.D.)	Natural law did the evolution of social contract to support absolute power and authority of the ruler. The prior life of nature was solitary, poor, nasty, brutish, short, misery, pain, so men surrendered their freedom to mightiest authority to protect their lives and property by voluntarily entering into contract. Civil law is the real law because it is commanded and enforced by the sovereign. Hobbes' doctrine of absolutism of sovereign is the outcome of Austinian imperative positivism.
Jam Locke (1632 – 1704 A.D)	The prior life of nature was not so miserable and brutish. Rights of men Suchas right to life, liberty and property remained with him and only the right to maintain order and to enforce the law of nature was surrounding by him in order to enter into the social contract. To protect the right of life, liberty and property is the very necessary of individuals. He pleaded the constitutionally limited Government to protect the individual liberty.
Jean Rousseau (1712 – 1778 A.D)	The Prior life of nature was happy an equality among men. People united to preserve their right of freedom and equality surrendering to, not single individual but to sovereign, as a ‘general will’ for social contract. Government and law should conform the general will otherwise they (would) discard. He favored the people's sovereign. Natural law is the freedom and liberty of individual. State, law, sovereign, general will are inter-changeable items.
Immanuel Kant (1724 – 1804 A.D.)	Basis of social non tract was reason. Freedom of individual is necessary. Law should function to separate power of state. Man guides to dictate by his own conscience, so it is the human right of self- determination. Autonomy of the will emanates from the reason. Freedom should not be used as one pleases. Universal law is the right of free action or will of everyman.

Modern Naturalism:

Naturalism was based on morality, justice, reason etc. precepts that were rejected by analytical positivism and realism.
20th Century Revival of Natural Law Due to failure of legal system, Fascism in Italy and Nazism in Germany, 20th Century legal thinkers looked for some value-oriented, value-conscious ideology or law. The new natural law is value-loaded, value-oriented, value-conscious, relativistic, not absolute, changing, varying, not permanent and everlasting in character.
Rudolf Stammler	Law is species of will, others-regarding, self-authoritative and inviolable. Just law has two fundamental principles (i) principle of respect, (ii) Principle of community participation. Natural law means just law which harmonizes the purpose in the society.
Professor John Rawls	To basic principles of justice are (i) equality of right to secure the wants of basic liberties, opportunities, power and minimum substances. (i) social and economic inequalities should secure maximum benefit to the community as a whole.
Francois Geny	Law has to be relativistic and not static or immutable or unchangeable. Judicial decisions are most important to Mould a legal system.
Kohler	Law is a reasonable form of standard of conduct. Law shapes the society morally and culturally to advance in course of evolution.
Finis	Natural law is a set of principles of practical reasonableness in ordering human society. He noted seven values, (i) life, (ii) knowledge that is perfect truth over false, (iii) performance. (iv) Appreciation for beauty, (v) practical reasonableness in shaping one's own character, (vi) religious freedom, (vii) assurance of justice and order in the society. Finis promoted those seven values to promote natural law.
Lion Fuller	Law and morality are necessarily co-related. Good order is law, which corresponds to justice or morality. Moral duties are affirmative actions and forbearances are negative duties. He divided morality as it is and it ought to be. Morality of duty is basic requirement of social living. Morality of aspirations is good life of excellence. Eight requirements to make law are (i) definite rule, (ii) well –published, (iii) not abuse of retrospective legislation, (iv) easily understandable, (v) practicable and not required beyond his power or capacity, (vi) not contradictory or inconsistence, (vii) not subject to frequent changes, (viii) rule is for actual enforcement.

Naturalism in Nepalese Perspective:

By the above study of Naturalism, we can understand that of naturalism is ideal one to accept in Nepalese Perspective. So, whether these precepts are being applied in Nepalese law or Jurisprudence or not is a very hard task to investigate. But also we observe the following provisions:

As per the constitution of Nepal, 2072, Article- 1: Constitution as the supreme law of the land. Since, before the natural law was considered to be the supreme law and activities inconsistent with that of the natural laws were the acts towards destructions. Similar in the case of the constitution, any other laws must not be inconsistent with it.
This can be related with the classical concept as; as per Aristotle, there must be the equality. Moreover, in the Hindu philosophy, there must be no biases in case of the delivery of the justice. The concept of “100 Apradhi Umkiyun tara 1 Nirdosh pani nafasosh “has also followed the theory of natural law.
Article 18 of CoN promotes naturalism to protect all citizens equally before the law. Equality rejects the discrimination on the basis of religion, race, sex, caste, tribe or any ideologues.
Section 3 of Civil Right At 1955 codes naturalism not to reject equal protection of law and equality before the law to all citizens.
Section 67 of the Muluki Civil Code, 2074 says if a man and a woman get united by a cultural ceremony or by other forms become husband and wife. Similarly, Section 68 of Muluki Civil Code, 2074 says that marriage is the social bonding, etc.
Article- 9 of the Constitution of Nepal, 2072 states Cow to be the national animal of the country which has also been guided by the divinity and religious values.
The human rights are the natural rights, which enhances the rights of life, liberty and property.
The laws must not be discriminatory.

Section 15 of Police Act 1955 provides the power to arrest the criminals to prevent the crime, obeying the related authorities' order by the police staffs. If there is sufficient reason to arrest, then police can only do such duty.
Slavery, Kamaiya, Deuki, Baadi Prathas, sexual harassment, etc. are the practices against the Humans existence and is against the Natural Laws.
The self-autonomy of a person is regarded the natural rights. For example: the contract laws.

No person is under anyone’s control, it means that this principle also focuses on the equality of people from all the sectors or aspects like the economic, social, political, linguistic, cultural, etc.
The person must be given the punishment as per the crime committed.
We can also relate the Natural Law with that of the principle of natural justice as well. Aristotle said that justice means not harming anyone and justice does not mean that compensating someone after causing harm to them from any other means.
Nemo judex in causa sua: No one should be judge in his/her own case. It is the rule against any kinds of biases. The natural law from here can be related with the concept of independent judiciary as well.
Audi alterum partum: Rule of fair hearing
The principles in Criminal justice system have been developed out of the natural laws; Criminal liability lies in the person who commits the crime.
Nepalese law promotes the naturalism of criminal justice. None shall be punished by law when the act was committed. None shall be prosecuted to punish for same offence against the double jeopardy.
No one is allowed to destroy, sabotage or damage any religious sites or articles or objects of any group or religion as per the Section 150 of the Muluki Criminal Code, 2074.
Right to Religion as Naturalism: Article 26 of CoN promotes the naturalism that person shall have the freedom to profess and practice his own religion as handed down to him from ancient times having due regard to traditional practices.
The development of the concept of “ Nyaya napae Gorkha Jnau”has also been derived out of the concept of fair justice from the classical concept of the natural justice system.
Paragraph 8 of Civil Servants Act 1993/98 promotes to give sufficient hearing opportunities against the case of Civil Servant commits moral-less crime.
The products of natural law or naturalism are Consumer Act, Free legal Aid, Family Court, Human Rights Commission, Administrative Tribunal, Special Court, Women Commission, Activism of Judiciary and CIAA, due process of law or rule of law righteousness, duty, service to mankind, altruism, compensation release, doctrine of elections, health right, environmental rights, etc. These new developments of doctrines of natural law, which embody higher values of life, liberty, equality and justice that have gained increasing importance in the Nepalese Legal System so that a social order with just and human conditions may be accomplished. So natural law is the basic foundation of positive law.

Case laws 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

Decision without right to hearing is contrary to the principle of natural justice.

Shambhu Prasad Sanjel vs. Government of Nepal

Discriminatory law cannot be enacted.

Rishikesh Shah v. Chief Zonal Commissioner

A person has to right to know the grounds as ground of detention under theme of natural justice.

BASIC TENETS OF NATURAL LAW

Natural law theory adopted perception of defining law in terms of abstract notion. It relates law with: -

# Dictates of reason

# Human wisdom

# Natural phenomena # Divine inspiration

# Distinction between good and bad

Human beings as a civilized being is regulated by dictates of his/her own reason. Therefore, in accordance with what is thought good is to accordance with law. In this sense, law is, dictates of right reason’.
Human being is divinely endowed with power to understand what is right to do and what is not. Hence, the rules of laws are determined by wisdom of human beings. Human wisdom is therefore source of law.
Nature follows a course of rules something happens exactly in the same way and pattern it is succeed to happen.
For example: -
- Cow gives birth to calf, but not to human baby.
- Seasons repeats exactly in time.
- Plants grow with defined course.
- Calamities occur beyond to knowledge of human being.

Natural law/ Lex Naturalis believes on ‘Uniformity’ and ‘Universality of rules. Human beings having wisdom to identify what is wrong and rights behave in similar way everywhere.
Natural law defines law in terms of divine rules, and in this sense the force of law resides on unseen power.
Human made laws is subjected to authority of natural divine/eternal law.
Natural laws don to distinguish from law from morality.
Law emanates from divine or reason of human beings.
Based on ‘a priori ‘method.
Hrithik Yadav.

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