This theory asserts that certain rights are inherently belonged to human beings and those are endowed by nature. Hence it is also called as Law of Nature, Divine Law, Law of God, etc.
It is not promulgated by legislation; it is an outcome of preaching of philosophers or prophets or saints and thus in a sense, it is considered as higher form of law. Natural Law has no formal written Code.
The content of ‘Natural Law’ has varied from time to time according to the purpose for which it has been used and the function it is required to perform to suit the needs of the time and circumstances. Therefore, the evolution and development of ‘Natural Law’ has been through various stages which may broadly be studied under the following heads:
(1) Ancient Period - Greek philosophy and Stoics
(2) Medieval Period - Christian Theology
(3) Renaissance Period/ Enlightenment - Social contract
(4) Modern period- Revival of Natural law
This school focused on 5 points God’s will (Divine element) human reason - Law is a rational standard for conduct – what law says is necessarily rational, and what’s not rational is not law
God’s will (Divine element)
human reason - Law is a rational standard for conduct – what law says is necessarily rational, and what’s not rational is not law
Social contact (law is to be in consonance with the state)
Use of reason and choosing between good and evil
Jus Gentium – Need for a collective law universally
Some of the most prominent examples of the sources of the natural law theories have emerged out of a) Greek Philosophy, b) Roman Law, c) Christian Theology and d) Social Contract Theories.
The natural law philosophy dominated in Greece during 5th B.C. This theory suggests that societies must constantly evolve with the social structures.
Their writings acted as a catalyst for bringing about transformation of the old prevailing legal system.
Mooted for universal order governing all men and the inalienable rights of the individuals.
Law is construed as higher moral law order, righteousness and salvation
The philosophy of morality, justice, ethics, right reason, good conduct, equality, liberty, freedom, social justice, democracy has its derivation from here
Natural law also developed through Stoic Rome philosophy of Cicero that dealt with personal ethics
Theological influence of Natural Law
St Augustine- 4th century AD - His writings state that government became a necessary tool to restrain men from doing evil through the fear of punishment.
St. Thomas Aquinas wrote and his 13th Century AD writings
Focused on Dominance of church and these writings were moulded to the Church's needs. To him there are only 4 laws - Divine Law, eternal law, law of nature and Human Law. Obligation to conscience
harmonisation of God's enactments with human deeds
God dictates and humans follow if not, sin.
Revival of natural law
John Finnis, Dr. Allen, Rudolf Stammler and Lon Fuller were main proponents who revived the theory of natural law. The main reasons were World War II, followed by Constitutionalism beginning in the last two decades of the 20th century. It questioned evident and serious violations of human dignity. It mooted for the inclusion of human rights within constitutional regimes. There must be formation of general rules to guide actions, that must be made known to public .The rules should be prospective in nature and not regressive. These should be consistent with other rules. They should be stable in a reasonable way, that is should not be changed too frequently.