Contemporary Natural Law Theory

CONTEMPORARY NATURAL LAW THEORY

Duri During ng 14-15 14-15th cent centur ury y new new dis discove coverries ies in new new dis discove coveri ries es in scien cience ce took ook plac placee whi which the very foundations of established values. Tremendous growth in trade and commerce in European countries led to the creation of new classes in the society whic which h dema demand nded ed grea greate terr stat statee prot protec ecti tion on.. Cumu Cumula lati tive ve effe effect ct of this this situ situat atio ion n was was that that a gene genera rall wave wave of nati nation onal alis ism m dema demand nded ed for an abs absolut olutee sover overei eign gntty of the the stat statee and and  positive laws gained supremacy. supremacy. The unde nderstanding of natu atural law in the form of div divine inquiry beca ecame open to rational inqu inquir iry y. The The natu natura rall law law theo theori ries es prop propou ound nded ed by Hobb Hobbes es,, Lock Lockee and and Rous Rousse seau au came came into into pict pictur uree and and revo revolu luti tion oniz ized ed the the exis existi ting ng inst instit itut utio ions ns and and held held that that soci social al cont contra ract ct was the basis of society and natural law was incorporated in the political philosophy. THOMAS HOBBES

Wrote a book Leviathan. As per him natural law is based on the natural right of self preservation. He used the natural law theory to support the absolute authority of the ruler. He stated that law and government are required if we are to protect order and security. Ther herefo efore by socia cial cont ontract we surrender our natu atural freed eedom in order to create ate an orde orderl rly y soci societ ety y. He furt furthe herr says says that that any any huma human n acti action on whic which h incl includ udes es mora morali lity ty is self  self  serving in nature as it shows our essential selfishness. He furt urther says that becaus ause we are essenti ntially equal both oth ment entall ally and physi ysically i.e. Even the weakest has the strength to kill the strongest, he says, this equality gene genera rate tess disa disagr gree eeme ment nt and and then then we tend tend to argu arguee for for 3 main main reas reason ons: s: (1) (1) comp compet etit itio ion n ( for for limi limitted supp suppli lies es of mate materrial ial pos posses session sionss), (2) (2) dis distrus trustt and and (3) glor glory y (we remai emain n hostile in order to preserve our powerful reputations). He says that as we always stay in a state of disagreement we enter into a natural state of   perpetual war of all against all where no morality exists and all live in constant fear  and danger of violent death because it gives everyone the right to everything including another person’s life. So in order to escape the horrors of this state of nature, Hobbes has given un 3 laws of 

nature. 1st and fundamental law of nature is to seek peace and follow it. 2nd law of nature is we transfer our rights to each other in the form of the contract so as to achieve peace as this act of transferring tends to form a duty towards each other. E.g. I won’t steal from your property similarly you don’t steal from my property. But such agreement won’t be binding in nature and is also not genuine in nature because there exists a possibility that I may break my agreement if I know that I can evade detection if I have the added advantage of the possession of invisibility cloak. You know this too. So Hobbes states his third law of nature that agreements needs to be honored. So he states that to avoid the break down of any mutual obligations he argues that unlimited power to a political sovereign must be granted to punish us if we violate our contracts. Its our pre selfish reasons that motivates us to agree to the establishment of an authority and only when such sovereign exists we can arrive at the objective determination of  what is right and wrong. As per him morality consists of 3 laws of nature which is arrived through by entering into a social contract with the State. LOCKE

Wrote a book Two Treatises of Civil Government. Gave a new version of social contract theory. Rejected Hobbes state of nature and state that life in nature was not as brutish and miserable as detected by Hobbes instead life was reasonably good and enjoyable but he major flaw which existed in this state was that property was not protected in the state of nature. For Locke- men entered into a social contract to rectify this flaw.So through this social contract man surrendered not all but some of the rights to the state. Thus natural rights which remain with the men are the right to life, liberty and property and only right to maintain order and to enforce the law of nature are surrendered by

them. Locke’s social contract theory gives us two ideas: It’s revolutionary nature: When govt. Unjust or authoritarian Locke acknowledges the right of the oppressed people to resist tyranny and overthrow the govt. Says, ‘ a tyrant has no authority’. He also attaches considerable importance to man’s right to property. Labor theory. He states that God owns the earth and has given it to us to enjoy therefore as such no man has the right over the property but when we mix our labor with material objects we are entitled to enjoy the fruits of our labor, therefore the laborer acquires the right to the thing he has created. Best e.g. of labor theory IPR. Therefore, as per Locke state exists to protect three kinds of rights. Right to life, liberty and property which are inalienable and necessary for the well being of the society. Social contract preserves these rights. He represented a limited form of government where he said that checks and balances can  be maintained among different branches of the government where in his view would maximize individual liberties. JEAN JECQUES ROUSSEAU

Pinpointed that a social contract theory is merely a hypothetical conception. Under  contract, people surrender their rights not to a single individual i.e. Sovereign but to the community as a whole which Rousseau termed it as ‘general will’. Therefore, as per Rousseau State and Law are the products of general will of the people not of reason as stated by the early natural law thinkers. Rousseau favored people’s sovereignity.So as per him if an individual descends into selfishness he must be compelled to fall in law with the dictates of the community. Further stated that there is a difference between ‘will of all’ and the ‘general will’. ‘will of all’ it looks at the private interests- it is the sum of all private interests whereas ‘general will’ looks only to the common interest. E.g. Of general will- referendum for Briexit and Scotland. Rousseau proposed that ‘men must be forced to be free’. It should be interpreted to mean

that individual’s surrender their free will to create popular sovereignity. Rousseau further says that there are certain natural rights that cannot be removed as long as the government represents the general will But govt. Can infringe these rights through law as and when necessary. Eg. Suspension of freedom of speech and expression during emergency. His idea of State was both that of a democrat and totalitarian. Talked about participatory democracy but at the same time allowed total intervention by the state. But as per him, State interference was only there to promote more freedom and equality not to totally diminish them. As per him, social contract is that which maintains the equilibrium between absolute  power of the state and the rights of the individuals.