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Published : September 10, 2014 | Author : Sugandha.ch
Category : Law - lawyers & legal Profession | Total Views : 5160 | Rating :

  
Sugandha.ch

 

Many times jurists have made their efforts to give their definitions of law, its various sources and the very nature. For the purpose of understanding their points of view, the jurists are divided on the basis of their approaches to law. This division has been helpful in understanding the evolution of legal philosophy.

One class of these jurists came to be known as ‘naturalists’, who perceived law as the dictate of reason. Contrary to positive law that is found by recourse to codes, statutes, Constitution etc., the natural law is based on the principles of justice and morality.

Merits:
1. Often ordinary laws fall short of ideal and men feel the need of an appeal from positive law to some higher standard which is provided by the natural law.

Example: The setting up of the International Military Tribunal in Nuremburg was a decisive step in the history of mankind.

· Its basis was really the general indication of mankind against brutality of the Nazi regime in exterminating thousands of innocent people.

· Yet the only ground of these trials’ justification was the theory that there was a “moral basis” for the trial and war crimes were essentially “immoral” in character.

2. This school of law acts as a defence against ethnic relativism, which attacks the very basis of obligatoriness of law.

· Natural law, e.g. Movement of Sun and Moon, is inevitable and obligatory whereas human law, e.g. Customs, manners etc., can’t have nay special claim to obedience.

· Some laws differ from state to state while some law is applicable to all the states. This shows that it was but natural to have such law.

· True law is equated with right reasoning, according to the Stoic philosophers.

3. Natural law acts as moderation of religious cleavages by finding out common moral ground of truths.

· Natural law is not dependant on human belief in any particular diety or divine being but on human reasoning.

· Hence it is possible for non-Christian to arrive at same principles as Christians when, as far as natural law is concerned.

4. When emphasis shifts from medievalists stand point of man’s functions and duties to natural rights of man, the fundamental human rights seem to have a base of natural law.

Criticism:
1. Moral proposition “ought” is not always deductible from the factual proposition “is” and hence moral arguments are, at times called defective.

Example: it is natural for men to beget children as is for tree to bear fruits. Bentham considered this as confusion between moral law and scientific principles.

Scientific law states what generally occurs whereas moral law states how men should behave.

Thus begetting children shows merely the tendency but not an obligatory moral duty to conform to this tendency.

2. It argues that everything has its proper function but it breaks down in the case of man.

Example: consider an object such as a watch, which got its purpose from its maker. However in case of a man, whether he got his purpose also from his Maker?

This raises the question on existence of God and lays down reasons for assumptions of existence, wherein an assumption need not be universally accepted.

3. Attitude towards colour, religions etc. in different communities take away much from the universality of natural law.

Example: Slavery.

4. Natural law varies in its detailed application to various societies, thus undermining the whole concept.

Example: Monogamous marriage

The author can be reached at: sug.ch@legalserviceindia.com




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