Human beings have undergone a long way to its evolution. All the schools of Jurisprudence provide us with a clear outline of the reformation that people have witnessed through their various stages of life. The most ancient school of Jurisprudence is the Natural Law School or theory.
NATURAL LAW THEORY
The natural law has acted as a catalyst for bringing about the transformation of the old prevailing legal system. The basic idea of this theory is whatever law we have today has originated from a supreme source and that emerged from God, thus having a Divine origin.
The entire natural law school is based on morality. The jurists of this school gave overemphasis to morality and opined that whatever laws that we have today are not man-made; rather, these are universal.
The content of natural law varies from time to time according to its use and the functions that are required to be performed to fulfil the needs of the society following the time and circumstances. Therefore, the jurists of this school have divided the growth or evolution of the Society into the following stages.
In the ancient period, the laws were considered to be Divine in origin, i.e. rules and principles were supposed to have originated from the divine source, rather than any political or worldly authorities. The jurists of this period opined that natural law is not made by man, man only discovered it. Some of the philosophers of the ancient period were Socrates, Plato and Aristotle.
According to the jurists of this period, all laws were either Divine or man-made. Therefore, unlike the view of the jurists of the ancient period, the philosophers of the medieval period developed separate views regarding the development of laws. They also considered that Divine laws are based on nature while human laws are based on custom and that it is the divine nature of the natural law, which makes it binding on all other laws.
This period led to the emergence of new ideas in different fields of knowledge; this was achieved by discoveries of science, growth in trade and commerce, etc. Some essential scholars of this period are Hugo Grotius, Thomas Hobbes, John Locke, Jean Jacques Rousseau.
THE DECLINE OF NATURAL LAW THEORY DUE TO THE 19TH CENTURY POSITIVISM
After renaissance, natural law theory declined, and there was a growth of positivists school where the historical and analytical school introduced a pragmatic approach to know the condition of civil society. As a result, Positivists considered that natural law theory was not practical and was baseless for being merely abstract.
This article focuses on the period of renaissance.
The period of the renaissance is also known as the modern classical era for it has been a significant development in the history of natural law. This period has introduced rationalism and new ideas in different fields of knowledge, such as discoveries of science etc. Due to this tremendous growth of trade and commerce in European countries, new classes in the society were created which needed more significant protection from the state. The ultimate effect of these developments was that there was a general awakening of nationalism and a demand for absolute sovereignty of the State and supremacy of the positive law along with the downfall of the dominance of the Church and giving way to natural rights of man and the State.
The jurists of this period revolutionized the society, and they did so with the help of social contract theory. Therefore with the renaissance, there was a demand of organize State and rise of humanism which ultimately led the nation free from its former religious trappings.
STATE OF NATURE
The State of Nature is the hypothetical condition of existence of human beings before the emergence of political association and a standardized administration of the society.
Perceptions of the state of nature differ sharply between jurists although all of them have an inbuilt standard view of the absence of sovereignty of state.
One of the greatest Jurists named Thomas Hobbes holds a negative conception of the state of nature, where he stated that existence in the state of nature is nothing more than “solitary, poor, nasty, brutish, and short.”
In his view there existed a situation of permanent war all around and people were under a constant and vicious condition of competition to fulfil their selfish and unlimited wants because everyone was born with a natural right to everything. They were governed, and bound by only the laws of nature and they were under an act of self-preservation in whatever way they want. Hobbes further stated that in the state of nature all human beings were equal; in the sense that due to the absence of any authority any man could dominate others regardless of the way they adapt to the same. Therefore, there was no concept of even distribution in the society and ‘survival of the fittest’ either by strength or cunningness was the only way of existence and cravings for food, fear for security, competition for profit, pride and reputation were the ultimate goals for the people regardless of the method to attain them. The society completely lacked laws and people enjoyed absolute freedom, making the place almost a jungle. But since everyone had a natural right to everything; therefore people were not met with injustice, they were under their own means to preserve their safety and no authority was there to play the role of administering justice to them.
Like Hobbes, John Locke also considered this as mere abstract but he stated that it is not necessary that state of nature has to be characterized by state of war rather it is featured by the absence of government administration but not by the absence of mutual obligation. Therefore, he imagined a condition which is pre-political but not pre-social. The state of nature depicted a scenario in which human beings were governed by the universal laws of nature i.e. the laws made by God and individuals enjoyed perfect freedom to act according to their will and they need not depend on any other for having access to their rights.
Locke also believed that men are naturally endowed with essential rights such as, right to life, right to liberty and right to property. Therefore, he considered that under state of nature everyone is equal and independent and that no one should harm another or forbid from exercising his/ her natural rights.
He further stated that in that situation individuals belonged to the same kind; therefore no one could treat others like animals which were created for their own well being. Consequently, it was accepted that all individuals are entitled “to the same advantages of nature”.
Another famous Jurist named Rousseau also gave his view on State of nature where he criticized Hobbes conception of state of nature characterized by social conflicts and contended that people were innocent and free from any kind of internal or external disputes. The state of nature that Rousseau argued of meant the primitive state before the emergence of socialization which was devoid of social characteristics such as pride, reputation, enmity, harming one another, social wars or disputes or even fear of others. This state of nature was a peaceful condition where people lived without any conflict and were morally neutral to one another. Furthermore, the situation was such that individuals acted according to their basic urges like hunger and other natural desires like self-preservation. They were more involved in fulfilling their minimum desires like those which were necessary for their survival rather than demanding luxuries.
According to him, people lived in a selfless condition where they never craved for any possessions and there was no discrimination among the people subjecting themselves to the abundance availability of everything due to which people were self sufficient and need not depend on any other persons.
Rousseau further opined that man was described as a ‘noble savage’ who lived a solitary, happy and carefree life. There was no dispute and no place for vice and virtue like criticisms, judgment, comparison with others, snatching others happiness and distinction on merit because according to him it leads to inequality in the society. So, Rousseau believed that human beings have an intense feeling of goodness in them and they also feel the sufferings of others along with fulfilling their needs.
SOCIAL CONTRACT THEORY
Social contract theory is a kind of descriptive method that deals with the organized existence of society and its relationship with rules and laws i.e. what is the need of the society to be following the rules and laws. The ultimate objective of this theory was to provide the people living in a society with proper justification.
Social Contract Theory unwraps that people live together in society in consonance with the rules and laws in the form of an agreement that establishes both moral and political shape of behavior. This theory tries to evaluate and bring forth the motive and value of the systematized nature of government by contrasting the civil society with the state of nature that prevailed before the present state of society.
Over the centuries, philosophers like Socrates have tried to describe the ideal appearance of social contract, and how the existing society has evolved from its primitive structure. While defining social contract, it was also suggested that a set of rules having the effect of morality governing the behavior of every human being is accepted by a rational person when it is accepted by everyone. Therefore, no matter the rules and laws are explicit or implicit, they provide a framework to maintain peace and harmony in the society by helping every person to treat one another for their mutual benefit by having access to the same rules and practice.
Thomas Hobbes said that man used to live in chaotic, poor, solitary, nasty, brutish and short conditions. They used to live in fear of their property being taken away by other tribes. In such circumstances to protect themselves from such misery, people entered into a contract voluntarily where they surrendered themselves in the hands of higher authority. This contract is known as a social contract theory. This slowly and steadily led to the emergence of rulers which later assumed the formation of the State. He believed that subjects should not be given any right to revolt against the sovereign, thus giving the monarch the absolute authority.
Thus Hobbes was a supporter of the absolute power of the ruler and subjects had no rights against the sovereign and had to follow the ruler how unworthy he might be. He considered that supreme power and authority should always lie with the ruler and command from the ruler is essential to maintain obedience among the people.
Hobbes in one hand considered that natural law is based upon natural right of self-preservation of person and property but on the other hand he also observed that law is dependent upon the sanction of the sovereign. Therefore, he opined, “Governments without swords are but words, and of no strength to secure a man at all”. Hence, keeping in view the following facts, he reiterated that civil law is the actual law because it has the capacity to be commanded and enforced by the Sovereign authority.
John Locke was opposed to Thomas Hobbes and stated that right to life, right to property, these rights are those kinds of rights which should not be given entirely in the hands of the sovereign. But still, the sovereign is under the obligation to protect the rights of the people. He said that people should be given the power to overthrow the government. And have the right to revolt against the government. Therefore to support the rights of individuals against the absolute power of the sovereign, a new interpretation of the natural law and social contract theories became more or less necessary. Thus, to ensure the protection of property, man entered into the social contract surrendering only a part of his rights and not all the rights as contemplated by Hobbesian theory. Thus, natural rights of man like the right to life, liberty and property remained with him and only the right to maintain order and to enforce he surrendered the law of nature. The purpose of the state was to establish laws to uphold and protect the natural rights of men. Hence, the doctrine of laissez-faire which was the result of individual freedom found great support in Locke’s theory for he pleaded for limited government administration or absence of absolute rule by the ruler and supported individual liberty.
JEAN JACQUES ROUSSEAU
Rousseau stated that social contract is not a historical fact as viewed by the other two jurists, but on the contrary, it is a mere hypothetical concept.
According to his social contract theory, to protect the life and property the people entered into a contract but didn’t surrender all the freedom in the hands of one single authority i.e. sovereign; rather they entered into an union of the community as a whole to protect their rights which he termed as ‘general will’ and he also considered that the laws should be made in such a manner that they are in conformity with the general will of the people and if the laws are not in accordance with the general will of the people they would be discarded. Therefore, state and laws are the outcome of General will of the people and not of reason as proclaimed by other legal philosophers.
Hence, it could be assumed that Locke laid emphasis on individualism but Rousseau gave more importance to people’s sovereignty. He believed that the general will of the people is an essential weapon to turn the society into a systematic form and it is the general will of the people which needs to be cherished because state, law, sovereignty, general will all are interdependent. Therefore, there could be no establishment of law and order with the monotonous rule of one single authority which would ultimately result in an authoritative administration in the society.
The theories of natural law have undergone alterations from time to time, whether it be absolutism or individualism, it has supported and evolved itself with different contributions of different philosophers. This theory has also been influenced by various revolutions especially, with the development of positive law.
Furthermore, the concept of Social contract theory which is a critical theory for the transformation of the society into a civilized and organized society, has also witnessed its way to achievement in the natural law school. The three philosophers, Thomas Hobbes, John Locke, and Jean Jacques Rousseau have great contributions to social contract theory where they have undoubtedly paved ways to create scenery to show us the transformation of society from their defined state of nature to an orderly administrative system that we have today.
Therefore, they created a hypothetical situation before us to know the primitive condition of the people and their lifestyle before the emergence of Society. All the three of them gave their interpretations to the social contract theory and how it helped to let people live in a peaceful and lawful environment avoiding the concept of survival of the fittest, absolutism, individualism etc.
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https://www.sparknotes.com/philosophy/rousseau/themes/ (Last Visited August 10, 2020).
BY ANANYA SAHA | INDIAN INSTITUTE OF LEGAL STUDIES