Last month, Lex Witness commenced this eight part special series on Nature of Legal Discipline with Prof. Dr. K. Parameswaran. This is the second part of the series which lays down special focus on the Natural Theory of Law and related aspects. Follow this section for the subsequent parts of the series.
Natural theory of law broadly explains that law and its order are immanent in universal Nature. It is similar to laws of science that explain Nature and its inevitable outcomes resulting in order and development. Law of Nature exists and will continue to exist till it changes its own law and nature of existence. Equally, natural theory of law broadly explains legal rights, obligations and values of social existence and coexistence (initially individualistic and finally collective) come as a result of human nature and its collective life in society. It believes in a set-in order for human nature and society from its birth and existence. Natural law creates natural rights which come down to every human being by virtue of ‘being human’. A direct corollary of natural law gives natural justice which forms an essential basis for legal reality of life in society.
Theories of natural law, its justice and rights show various phases of growth and development since ancient times to our current times. Olden societies accepted natural law as something imperative coming from a higher command of Nature. It is something of a universal, essential, common and moral imposition, invisible of authority. Yet, it cannot be questioned and violated. Natural law just ‘shows’ rights and obligations in the way they ought to be and hence they cannot be altered or cancelled. It is believed to be the way of social collectivity. And that is what and how it will always be. With religion and culture influencing the cycle of society, natural law theories, its justice and rights had varied stances, often subjected to interesting positions. Those, who believed and did not believe in religion and culture changed their stance as to its imperativeness, invisible universality, essentiality, commonality and morality claimed under the tree of natural law, its justice and rights. However, with the gradual growth of mental reasoning learnt from painful trial and error experimentation of life, development of small communities into nation-states, inter-national world and global humanity as a whole, natural law theories, its justice and rights signal at present a new ‘dynamis’ different from its earlier positions. Individual and collective liberty, equality and justice and, crises such as corruption or climate change, violence or border disputes that have not yet decreased, indicate a renewed need for integral awareness to understand all problems of life and perils of society. This in turn has shown a new radiance of light to the nature of legal discipline especially from the perspectives of natural theory of law, its justice and rights.
Religious, cultural, social, political, economic and psychological developments depict a dire need at this moment to revive afresh the canons of natural law with possible amendments suitable for modern and holistic requirements. Though understanding and developments of natural law varies from traditions to countries and civilizations, its core subject-matter remains more or less the same. The core truth of substance of natural law in its assertiveness to make law, legal rights and obligations understand from ‘within’ in order to practice ‘outward’, remains vitally relevant. Laws that result in harmony, good and beauty, peace and prosperity become new parameters of natural law for our current times. Especially in this contemporary age laws made by Sovereign and self-interest groups are broken fast as a result of extreme contradictions in both national and international life resulting in disorder, disharmony and disintegration. These sets of laws do not sustain underlying social fabric of collective development, equality and substantive justice except for short-term benefits. Mechanical trade and commerce that has disturbed our ecology and bio-diversity has proved this point by pointing to us the worth of sustainable development. One can say, there is no other better example of modern natural law principle than sustainable development (SD) which has gained immense value in protecting our human race, planetary life, flora and fauna from all the ill-effects of disturbed ecology. This principle (SD) has awakened human minds across all nations and differing legal traditions. It is bound to be followed up in action in the times to come is a great and welcome sign. Thus, natural theory of law adds great values to the nature of legal discipline which has a crucial role for the future legal order of world. It makes legal reality clear and effective in ensuring both order as well as development for everyone without discrimination and injustice. In one way, it can be said a modern natural theory of law based on pure harmony, good and beauty, peace and prosperity on the nature of legal discipline has become indispensable.
This comes from its core analysis of human nature and its conduct born out of mind- emotion-body complex. Their origin, interrelationships and outcome have an impact on individuals and collectivity which in turn influences the ascertainment of rights and obligations of the people who become parties before law and courts. The sole power of natural theory of law, its justice and rights comes through penetrating analysis of two elements. They are ‘pure reason’ and ‘causative thinking’ on life and society. This pure reason and causative thinking with ‘what, why and how’ of all kinds of relationships turns them into social obligations of life. These social obligations if accepted as norms through collective will and consensual process give natural effect (legal authority) to create do’s and don’ts. This self-understood and self-recognized obligations based on pure reason and causative thinking create scope for natural law, its justice and rights. When these obligations become edicts through an authority of State sovereign, a positive law is born. In one way, natural law is a pure state of dimension that is transcendent and immanent, before a positive law is born which is material and sublunary. The former is internal, interior and inner, whereas the latter is external, exterior and outer. Natural law gives effect to positive law. Positive law protects natural law by deriving its strength from natural law. When imperativeness, invisible universality, essentiality, commonality and morality of natural law become an accepted norm it is ready to be made into Statutes, Acts, Rules and Regulations. A study of the Indian Constitution and the United Nations Charter can explain this dimension of double-factor and dual-effect of natural law and positive law when we analyze their respective Preambles followed by actual set of positive legal provisions towards implementation.
Reason and cause are two indispensable cohorts for all kinds of natural law propositions, affirmations or wantings. With these two cohorts supporting life and society from behind and invisibly, natural law theories, its justice and rights between human beings and social collectivity become realistic and functionally operative for any legal system irrespective of the presence of positive law. From this we come to know the core rationale behind human behavior in a society. When it explains what, why and how of human behavior in terms of mind-emotion-body complex and thought-feeling-conduct inter-relationships, the cause and effect relationship in life becomes self-evident paving way for clarity of thought and action. This in turn gives guidance to know and the power to act according to what is conceived as right and wrong for oneself as well as for all others around. In this way, a superior human being and better society is established.
The benefits of order are alive in human life through natural rights which come from natural law. Though deviations and disorder exist, an underlying sense of stability in the movement of things in life and society without breaking-up since the advent of creation or evolution shows, how life and enjoyment of natural rights continue or evolve from one stage to another. Natural rights that we all claim in life are a result of natural law. Natural rights are inalienable and fundamental and hence exist perpetually in time and space, which only a ubiquitous natural theory of law can automatically support from all sides. Natural law gives strength to natural rights which are positively affirmed by laws. The Preamble of the Indian Constitution or the Charter of the United Nations Organization are classic examples. Natural law exists because of its own self- existence. Rational thinking emerging from human awareness brings out identity of natural law by virtue of the power of reason. Thinking becomes a channel to allow the flow of benefits of natural rights to our daily life. Contributions of natural law cannot be as easily dismissed as its invisible existence. Irrespective of criticisms on natural law that it lacks visible reality of manifestation to proof, still natural law cannot remain unhelpful to any situation where law ought to be present. Interestingly it helps those who criticize it, as their critical right of thought and reason derives its cause only from natural law! Even when two human reasons conflict resulting in contradiction and vagueness when natural law does not directly dictate there, it is the highest possible reason with maximum practicality on the situation that makes a natural way. And hence, the nebulousness and lack of exactness attributed in the criticism against natural law is unreal and has no validity.
It is natural law that gives ability to the State-making; power to establish Governmental authority and finally a political self and social identity which gets positively translated in the law of the Constitution or in any supreme Charter of the State. Non-acceptance of this cause and effect relationship between natural and positive law annuls the very state of Nature which is practically impossible. In a way, it is the ‘phusis’ (dynamis) of natural law that alights and gives birth and identity to ‘nomos’ (positive order) which the legal being of modern Statehood rests upon and boasts about. As a result of this, State’s right to bring laws arising out of the requirements of social contract prefixes the subsistence of natural law. The indispensable social growth out of individual and collective growth derives its cause from natural law which effects through positive laws. In short, the nature of legal discipline from the eyes of natural law is such that law is eternal in existence, rationale of pure reason and inevitable for the birth of positive laws. When positive law fails, natural law comes to rescue if violators of law understand their inner reason, which natural law holds it as normative sense present as human ought and duty. This normative sense brings fulfilment to individual and collective life irrespective of labelling natural law, its justice and rights under the banner of morality or invincible power or providence from the hands of God.
This deeper understanding can make legal research on natural law contribute to positive law and positive law to look for deeper sense, greater direction and complete satisfaction through natural law. A top-down approach of natural research with inductive reasoning can give this effect to positive legal propositions. As a result of this natural theory of law, legal research that characterizes the nature of legal discipline becomes ideal-oriented, concept-based and theory-driven doctrinally packed to impart the spirit and value of ideals that stand behind to support law, legal systems and the State in actuality. It makes law deeply inner and normative in sense, yet compels and drives inner human mind to use pure reason and causative thinking to accept values as duties irrespective of whether State and society are ready to include them in positive legal propositions. If concerns of enlightenment, socialism and progressivism like extreme subjectivity of morality utter lack of connection with reality and evolutionism in improving legal standards are taken into consideration in the formulation and application of natural law, natural theory of law becomes good, great and grand. If empiricism supplements values of conceptual naturalism, it boosts the significance of natural law applications. When fast changing world looks for long lasting benefits from law and legal system, this seems to be an interesting option.
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