Bowing to Law – Plausibility of Natural Law and Positive Law
December 26, 2020
Why do we bow to the law? Since childhood, we are taught the two common reasons as to why we should follow a rule: sanction (Positive Law) and reason (Natural Law). When a child doesn’t eat they are made to eat by telling them about ghosts coming to steal their food and monsters coming to gulp down children who waste food. When the same child in due course of life learns to lie or pick up any other bad habit like drinking or smoking they are either given a good beating (sanction) or are counseled against the ills by reason. Thus, since our childhood, our life’s actions are structured either by reason or by sanction (fear of superior).
The same two reasons structure legal systems all around the world. No country can solely rely on the concept of sanctions or reasons to maintain peace and order. They can always paint the legal canvas with a darker or lighter tone but to choose one shade is never an option.
Jurisprudentially, there are vast and well-developed theories by various scholars illustrating which of the two reasons can better suit the world. Primarily Natural School of Law was developed by Aristotle and Thomas Aquinas who relied on reason and morality as guiding reasons to follow the law. Due to the failure of Natural Law in providing righteous results in all matters Positive school thinking was developed by Bentham and Austin. Within each school, various thinkers have their own theory as to what constitutes the right reason or morality (Natural School) or sanction (Positive School).
Natural Law School
As the name suggests Natural Law School thinkers believed law is divine, it is guided by god. They also called it the law of reason. The structuring stones of Natural School were jus civile, jus gentium, and jus naturale. This school focuses on how the law should be i.e. law ought to be. For the scholars of Natural Law, it is not enough that there is a rule or law it is equally important that it should be reasonable. The theories propounded by thinkers of this school have actively voiced that unjust law is no law. The idea of morality runs as soft music in the backdrop of these theories.
Many famous scholars have given their own definition of right reasons. Some of them being:
The Greek Philosopher is also referred to as the “Founder of Natural Law theory”. In his theory, he defined natural law as universal. According to him, the law was based on reason and these reasons were so fundamental to all humankind that there cannot be any other rule except one. Thus highlighting the uniform character of natural law.
Resting on his idea of reasoned law he characterized justice into two categories :
Distributed Justice: This form of justice worked to carve a perfect frame of equality for a society.
Corrective Justice: This form of justice rectified the frame of equality whenever it was distorted by the greed of man.
St. Thomas Aquinas
Italian philosopher Thomas Aquinas gave his own version of what constitutes Natural Law. His version of the law was in addition to Aristotle’s theory of universality and uniformity. Community good was defined by him as the absolute aim of Natural Law. His theory added that Natural law was universal and uniform because it aims to serve the community of mankind. It is the goal of the common good that people obey the law.
Grotius is famously credited for laying the founding stone of International Law. His work in the case of Natural Law credited him the title of Father of Philosophical School. His theory not only combined the two theories of Aristotle and Thomas Aquinas but also refined it. His theory narrowed down the principle of community good and focused on a single individual. Thus, by disagreeing he agreed with St. Thomas that it’s the innate urge of man to live peacefully in the community which makes him obey rules. He also viewed the idea of reason from his own microscope. He said it was not reason but the ethical reason which makes law necessary.
Positive Law School
Positive School of Law is better known as Analytical School or Imperative School. Some scholars also prefer to call it a Teleological school. Due to the valuable contribution by John Austin, his followers prefer to term it as the Austinian school of thought. Scholars of Positive Law voiced for the codification of laws. Positive School focused on Law as it is. It did not take into account whether the law was just or not. It measured the validity of law by the fact that it was the command of the sovereign. Keeping the relation of law and state in center-positive school only limited its ambit to how the law was.
Philosophical thought behind the school is driven from Latin maxim Ubi civitas in lex meaning where there is a state there cannot be anarchy. Tracing the primary source of law to state. For believers of Positive, the Law of the state is a necessary evil.
Bentham is regarded as the founder of Positive School. He came up with the theory of Utilitarian Calculus which called for maximum happiness for the maximum number of people.
From his theory of Utilitarian Calculus Principle of Utility was drafted. Principle of Utility talked about how a person tends to do more of something in which he enjoys pleasure and how he refrains from doing something which causes him pain. Thus he laid the foundation for sanction as a source of law. As sanctions were meant to cause pain it was believed that people will fear it and refrain from breaking any law.
Bentham did not completely reject natural law ideology. He did classify law into to categories:
Expository law i.e. law as it is
Censorial law i.e. law as it ought to be
Austin’s work on positive law has structured laws of many countries and is revered. His analysis of the positive law has made him the Father of analytical school. His version of positive school can be summed up in a single sentence that law is the command of the sovereign. He further defined law as the rule laid down for guidance by an intelligent being for an intelligent being having power over him. According to him, sanctions add an element of imperativeness and inquiry to law. Austin was such a firm believer of positive law that he termed international law as law improperly so-called and positive morality.
Hart believed that law consists of rules which have broad application and are non-optional at the same time. He was of the view that laws are nothing but social rules which sprung from social pressure to form legal rules. According to his theory legal rules have the following characteristics: a code of conduct and the conduct being obligatory and not a sanction.
His theory was heavily criticized by Dworkin and Ion Fuller. Fuller strongly opposed Hart as he was of the view that law cannot be completely divorced from morality.
Kelson developed the famous Pure Theory of Law. He believed law is the order of human behavior and that it is free from sociological, political, financial, and other factors of society. Kelsen characterized the law as self-supporting and normative, further highlighting that law is an ought to proposition ie. norm. He defined the Norm as an act of will. According to the Pure theory of law primary source of law is grundnorm.
He classified Norm into two categories:
Independent norm (not coercive)
Dependent norm dependent on independent norm example: Section 299 of the Indian Penal Code is dependent on Section 302 for its validity.
Median Idea of Natural Law and Positive Law
Social Contract Theory was developed as a median idea that combined the principles of Natural Law and the structural idea of Positive Law. According to the thinkers of this theory, the people contracted within the society or the ruler to develop a legal system that best suits their needs. Three main thinkers of this theory are:
Thomas Hobbes was an English philosopher. Hobbes gave a totally different ideology as to what makes people follow natural law and developed the famous Social Contract Theory. He argued that the reason behind following the natural law is self-preservation. Hobbes’s theory borrowed from the readings of Grotius and Austin. He stated that the people surrender their rights to follow to protect their right to property and person. When the question was raised as to who these rights should be surrendered he relied on Austin’s Sovereign authority.
In a way, Thomas Hobbes’s theory combined Natural and Positive Law. He defied the Positive law which held sanction as a guiding aspect and took a course of man’s reason i.e Natural Law as the means and source. To provide a well-structured system he did not completely abandon the Positive Law philosophy.
John Locke supported the concept of laissez-faire. He introduced new elements to the Social Contract Theory. He believed that people gave power to the sovereign to maintain order and justice. Unlike Thomas Hobbes, his idea of Social Contract Theory required limited sovereign authority. He did not believe that people bartered their rights for self-preservation rather the idea was that people gave power to the sovereign to rule but they kept their right to life, liberty, and estate with themselves. Though the sovereign had the power to govern the lives of its subjects it had no right to make them bow in terms of life, liberty, and estate.
Rosseau gave his own idea of the social contract. He claimed that the social contract is a hypothetical conception. He denied superior authority as sovereign instead he termed that it was the sovereignty of people. His theory was varied from the original Social Contract Theory on many levels. He denied the authority of the sovereign, he also rejected the idea that people surrendered their power or gave power to any authority. In his theory, Rousseau advocated that for protecting freedom and equality people united and surrendered their right to the community as a whole. Thus the source of law became the general will of the people. Kante developed his theory of categorical imperative based on general will theory.
One can understand the relation between Natural Law and Positive Law as that of a parent and child. Where Natural Law being the parent lays the founding stones of law and Positive Law as a dutiful child continues the legacy by keep building the legal structure.
The Indian Constitution evidence of the fact that there cannot be any single reason to bow to law rather a social contract is required for the harmonious functioning of the society. The Indian Constitution follows Rousseau and places sovereignty in the hands of the people of India. Further Part III and Part IV are examples of Natural Law. Although our legal system has been borrowed from the British; our Constitution is the lengthiest written constitution proves that positive law has always been the need of the hour.
Judicial Activism in several ways has proved that Natural Law and Positive Law both share equal ground. In the current scenario, the debate on CAA (Citizenship Amendment Act) is the best example that one can look up to understand how the scheme of Natural and Positive Law works in real life. There is a famous proverb of the Indian Legal system Saam Daam Dannd Bhed meaning one can get any work done by first giving a reason as to why it is required, then by putting a value to the work, and then by putting a sanctioning clause.
Editor’s Note The battle between legal positivists and natural law theorists has been going on for generations, and will no doubts continue to go on. The main reason for this is that on the surface both these theories appear to be at opposite ends, one claims that in order for an act or law to be valid, there must be some moral principle, while the other claims that morals are not important in the creation of laws, as long as a valid procedure is used.
This is just on the surface though, both these theories are like opposite ends of poles yet they are of the same pole, meaning that despite being different the fundamental principles are very similar. The present article outlines both the theories, discusses the differences between them, and also establishes the similarities in order to provide a deeper understanding of both theories.