Natural law means those rules which are considered to have emancipated from a supreme source I.e. god or nature ( other than political and worldly sources). Natural law school states that law is the human insight that inspires to generate the capacity for distinguishing between good and bad and there is the application of moral values, self-conscience, logic and reason.
l Natural law is a law of God, eternal law and the law of nature.
l Natural law is just and universal
l Natural law is related to fundamental rights, human rights and legal rights
Natural School of Law is divided into four periods as;
Ancient period ( reason )
Medieval period ( theology )
Renaissance period ( secularism )
Modern period ( written law)
Reason + Theology + Secularism + Written law = Natural school of law
Ancient Period :
Heraclitus ( 535-475 B.C )
Father of natural law school
The reason is a means for maintaining certain order between human beings and human behaviour, which focuses on what is right and what is wrong.
Destiny, order and reason are the founder characteristics of natural law.
Socrates ( 470-399 B.C)
-concerned with concrete problems of social and individual life.
-Human insight distinguishes between good and bad.
-Virtue is knowledge
Sophist ( 450-400 )
- Group of paid teachers of the ancient Greek and Roman period who used to teach about morality, values, duties of citizens, social morality etc.
Plato ( 427-347 B.C) -Law should represent the common will of all people of a community based on the law of nature by utilizing reason to harmonize the capacity of people.
Aristotle ( 384-312 B.C) – It embodies the basic principles of justice and morality which have universal validity independent of the time and place.
-Ideals of natural law have emanated from the human conscience and from the human mind.
. Stoics –influenced by the concept of God and its superiority
-the entire universe is governed by reason.
Roman Period – the concept of law as jus civile, jus gentium, and jus naturale.
Cicero ( 106-43B.C)
-To him, the law is the highest reason implemented in man.
-Classified law as eternal law, divine law and manmade law
Dark Period ( 5th to 12th century)
St. Thomas Augustine ( 345-430)
-Chief representative of the natural law of this period.
-Natural law is the will of God.
-Church is the real interpreter of divine law which has control over the state
Medieval period
The period from the 12th century to the mid-fourteenth century.
St. Thomas Aquinas ( 1225- 1274)
Lex aeterna ( eternal law )- law of the universe
Lex divina ( divine law ) – related to religion or theology / also known as the law of scriptures
Lex Naturalist ( natural law )- advocate the law of nature, discoverable by reason
Lex humana ( human law )- created by humans and directed towards attaining common goods.
Renaissance
Renaissance is called the classical period because it is foundation of the modern law as distinguished from theology.
Hugo Grotius ( 1583-1645)
-Father of international law
-Conceptualizes manmade law as a child, natural law as parents and divine law as a grandmother.
Thomas Hobbes ( 1588-1671)
-the concept of a good life
Protection of life, liberty, and property
Preservation of good life
Concept of absolute sovereignty
John Locke ( 1632-1704)
-separation of power
Power is distributed to people
Montesquieu
Separation of power
Relative government
Supremacy of law
Law as a local climate, soil, environment
J.J. Rousseau ( 1712-1778)
Law as a general will of people
Parliamentary supremacy
Supremacy of sovereignty
Modern Period
Immanuel Kant ( 1724-1804)
Concept of transcendental idealism
Law as a reason, law as a human conscience
Individual freedom
Rudolf Stammler ( 1856-1938)
-law as a technical science and theoretical legal science
Law is a variable content, which has changing nature according to time and place.
The purpose of law is to support human dignity, justice and truthfulness.
John Finnis ( 1940-2017)
Relies on the philosophy of common goods
Finnis offered seven common goods of humans:
l Life
l Play
l Knowledge
l Aesthetic Expression
l Sociability
l Practical reasonableness
l Religion
Lon Luvois Fuller ( 1902-1978)
There are 8 requirements of the law, they are;
l There should be definite rules
l These rules must be well published
l Prosperity
l Understandable
l Non –contradictory
l Practicable
l Static
l Actual enforcement of law
Dias
l Ideal development of law is natural school
l Perfect law
l No strict separation between law and morality
Influence of Natural School of Law
l Naturalists, or proponents of natural law, insist that the rules enacted by the government are not only the sources of law. They argue that moral philosophy, religion, human reason, and individual conscience are also integrated parts of the law. Natural law principle of justice, morality and conscience has been embodied in various legal systems. An example can be given from the legal system of England, India, the USA, and so forth.
l The number of legal principles and concepts in Nepal are borrowed from India and these concepts are based on the principles of natural law, for instance, the principles of justice, equity and good conscience and natural justice no doubt occupy an important place in the Nepalese law which was completely and still heavily influenced by Hindu religion.
l ‘Dharma’-the religion was the major source of Hindu law and was a form of duty. It was a righteous code of conduct prescribed for living an orderly life in society.
l Similarly, the doctrine of Karma also provides the basic framework for ethics. The belief was that Adharmic-illegal or immoral-acts of one would block the way to Mokschya the salvation. The constitution of Nepal also embodies a number of principles of natural law.
l It guarantees certain fundamental rights to the people: Quoting to ‘The Constitution of Nepal, 2072’ . The Constitution of Nepal, 2072, part 3, under the title of fundamental rights total
31 Articles such as:-
l - Art. 16. Right to live with dignity
l - Art. 17. Right to freedom
l - Art. 18. Right to equality
l - Art. 20. Right relating to justice
l - Art. 22. Right against torture
l - Art. 26. Right to freedom of religion
l - Art. 46. Right to constitutional remedies and so on.
l ▪ The Constitution of Nepal, 2072, part 4, has incorporated the provision of the ‘Directive Principles, Policies and Obligations of the State’. This provision is related to promoting conditions of welfare through establishing a just system in all aspects of national life including social, economic, and political life, while at the same time protecting the lives, property, equality and liberty of the people. This state directive principle is also based on the Natual law theory.
l The principle of ‘Secularism’, ‘Inclusiveness’, and ‘Natural justice’ that are stead in the Constitution of Nepal, 2072 is also based on the same theory. Likewise, Constitutionalism- primarily the check and balance, the rule of law, social justice and equality, independent of judiciary etc. that is adopted through the constitution is also based on the Natural law theory.
l Evidence Act 2032 BS section 3,6 and 7 is also based on the natural law theory, this section specifically talks about the evidence relating to personal property what the court entertains and what not. According to the cited sections, s/he can claim his/her property, if a person shows any reasonable ground as a Supreme Court the power to exercise control over the administration and quasi-judicial tribunals, one of the grounds of the orders set aside are based on the principles of Natural justice.
Some of the cases based on such principles are as follows:-
A. Kashi Dahal vs. HMG cabinet secretariat
{ Fact:- In the case, the petitioner had challenged demolishing of some structures and cutting down of the trees in Lumbini Development areas, without public notice.
Held:- The supreme court issued the directive mandamus order HMG and Lumbini Development Board, to issue public notice about the demolishing of the structure, or cutting down of any trees and restricting of any structure in the areas. }
B . Sunil Babu Panta and others on behalf of Blue Diamond vs. Cabinet Secretariat and other
{ Fact:- The petition was filed demanding the recognition of the third gender.
Held:- The Supreme Court issued the directive order to devise necessary laws for the identification of the third gender. }
C. Meera Kumari Dhungana vs. HMG 2052
{ Fact:- The petitioner challenged the provision of Muluki Ain 2020, not being in line with the spirit of the Constitution, in regards to property rights to the daughter.
Held:- Supreme Court issued an order to the government to make necessary
amendments to Muluki Ain 2020, dealing with the provision relating to the inheritance of property rights to the daughter. }
In short,
Natural law school = law dictates of reason.
this school generally believes that law is the creation of god. Law is of divine origin. It is known as unwritten law, higher law, moral law, immutable, divine law, derived from natural phenomena which are higher than others.
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Great notes ❤️
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