NATURAL SCHOOL OF JURISPRUDENCE (PART 2)
• During the Renaissance era, Natural Law Theories gained a new perspective and usage. Its evolved impact can be seen in the following events of that era:
1. The English Revolution of 1688
2. The American Declaration of Independence
3. The French Revolution of 1788
It was the period which marked the birth of the concept of Social Contract, which became a tool of negotiation and arguments for both, the authorities who were in pursuit of establishing an outright jurisdiction and the Individuals who were against this establishment of out and out command over them and yearned to seek ‘Sacred liberty’ or ‘Churchly liberty’.
• The rise in commerce became a catalyst for the increase in individual wealth and hence paved the way to reach the goal of freedom of spirit for the people.
• The concept of The Social Contract dates back to Marsalis of Padua (1270-1343). This concept emphasizes the 2 contracts that primitive men made with each other, to survive in nature which are as follows:
1. First Agreement: According to this agreement, men promised to protect each other’s life and property from imminent danger, as highlighted by some of the people, for whom this period of lawlessness and no government became hard and felt persecuted.
2. Second Agreement: This agreement emphasized the establishment of a ruling body, which would provide liberty and will safeguard the life of property of men of that era, and in return, the men will abide by the commands of that body and will voluntarily waive off some of their rights. This Agreement became the foundation of the existence of Rulers, Governments and Sovereign Commanders.
• This Theory of Social Contract throws light only on the interest of an Individual. Some prominent thinkers of this theory are as follows:
• According to Hugo Grotius, The Social Contract Theory has 2 operations which are :
1. Within in the State: The Social Contract Theory show just cause for the ultimate obligation of the individuals to abide by the commands of the Sovereign. He highlighted the unquestionable and irrefutable authority that the Government gets, once the obedient individuals give up their freedoms and rights, which involves the Right to hold accountable and punish that government, in honour of such authority. He agreed to the fact that such a Sovereign is only bound by Natural Law theory which directs it to fulfil the promises that he had made to his subjects.
2. Globally: This Theory was used by Hugo to furnish peace and friendly relations among different nations, based on law and stability.
•He dealt with the Natural Law theory in the era when Civil War was going on and for him, Natural Law was just suggestive principles, which he didn’t back with sanctions.
•According to him, Natural law is made to benefit only an individual and its formation is done based on human nature.
•His encounter with times of Civil War made him realise that Natural Law should only seek to preserve one right only and that is the Right of Self Preservation.
•He stated that Men agreed to surrender their rights to the absolute commander in return for the safety of their life and property in this dog-eat-dog world (This was his view because he lived in the times of the Civil War) and abided by the directions of that sovereign until that ruler is capable enough to protect them.
•For him, State was the sovereign and all the other authorities, including Churches are subordinate to it. Commands of the Sovereign are to be backed by sanctions, without which all the directions of the ruler will become mere statements and will not be able to get enforced upon the individuals.
•He said that Civil law is the only authentic law which holds the power to govern individuals. Hobbes’ idea of an absolute commander could not be held accountable or answered to a higher authority like divinity.
•Some of the principles he propounded were:
1. The Natural Law (Lex Naturalis) are Directive Principle that refrains a man from doing self-destructive activities and helps lead a better and more peaceful life. I mentioned the word ‘peaceful’ because according to him, the ultimate desire of man should be to attain peace and for that, if The Natural law fails to suffice then he may use all the means necessary, be it using war for his benefit, for the fulfilment of this aim.
2. This principle directs that the extent of authority and liberty of one man over the other man should be the same from both sides.
3. The 3rd principle highlights that there should be no injustice ( in his view, non-adherence to the Civil Law which is backed by sanctions) and all men should follow the valid covenant.
•He refused to accept the role of the Church as the interpreter of God’s words and rather put his beliefs in and gave authority to State and its sovereign power only.
•There were some similarities in the thought process of Hobbes with other jurists which are as follows:
1. Hobbes’ individualism was similar to that of Locke.
2. His Utilitarianism was the same as Bentham and Mill’s.
3. His Absolutism was similar to all the State empowerment theories.
•The ideologies of Locke were found relatable by many generations as he propounded the idea of the Government of the majority which was entrusted with the obligation to safeguard the life of property of the individuals and voluntarily adhered to the commands of that Government. He gave more importance to Natural law than positive law and granted rights to individuals, particularly the Right to Private Property. Locke had clashing views with that Hobbes as he stood for individuals’ liberty.
•His individualism surely was like that of Hobbes but unlike Hobbes, he gave due importance to the rights of the individuals which could not have been taken away from an individual.
•There is a 2 fold role in the Social Contract of Locke, which is as follows:
1. According to the first Contract, all the individuals will unite together and form a majority government which has the power to take away the rights of an individual (including the Right of Private Property) if it deems fit.
2. According to the second Contract, the authority of the Government will only remain to an extent whereby they fulfil their ultimate promise to preserve the individuals.
•For Locke, the commands of the Government by the majority should be following the Natural Law as it is superior authority and anything which is against the Right of Self Preservation of the subjects is considered invalid by him.
•He blames the rise in population for the change in the utopian environment, in which men lived peacefully and there was no envy or jealousy and individuals listened to their hearts more than their brains.
•According to him, Social Contract was the one-spot solution for all the problems of man, like the increasing gap between rich and poor and the selfish nature of individuals, in that era. This Social Contract indemnified the loss of rights of an individual in the community by providing him with the same right as the others. For example, if ‘A’ can not kill ‘B’ then ‘A’ can also not be killed by ‘B’, here both A and B, gave up their Right to kill the other person and gained the Right to the preservation of their own lives.
•For Him, the community of individuals is the Sovereign and to implement the ideologies and policies of the absolute Commander, Government ment is formed, and such Government is not the party of this Social Contract.
•The only distinction between the theories of Hobbes and Rousseau was that Hobbes centralised the authority to govern the whole state to one person only and that is a ruler, whereas, Rousseau provided the whole community, with a collective authority to govern themselves, with the help of Government.
•Rousseau’s Sovereign is not subjected to any constraints as it is considered the general will of the whole community which can never decide the members of the community.
•His Idea of freedom of an individual involves Civil liberty and not Natural liberty and that, according to him can only be enjoyed by man, if he follows the general will of the society. As directed by Rousseau, general will be the only will by which the whole community should abide and if a minority of people have a clash of opinion then they are directed to introspect and realise the defect in their view and should rejoin the majority's idea of justice.
•The general will was considered the only way to freedom for all individuals because, through this will, they were the rulers of their own life instead of a monarch.
•Limitations of Rousseau’s theory of Social Contract:
1. It was considered a vague theory which is not relevant or up to date with today’s condition of society.
2. If the general will, will be followed then the minority or the people who don’t see eye to eye with that ideology, will never get justice and will always be oppressed which defeats the claim of the general will, that is to provide freedom and peaceful life to all the members of the community.
•He emphasised the concept of free will which should be exercised by a man living in this world. For him, this was the only way of attaining spiritual freedom for men.
•By Free Will, he meant the Will of the person which is not influenced by human sentiments.
•According to him, the only functions of the government should be the implementation of rules of morality and help ensure that people live an ethical life and not oppress the people with tyrannical commands. He set a benchmark with his doctrines, which the system in reality has to match.
•He drew a difference between the rights one has and the rights one gets by following Natural Law. He stated that man has only one right and that is to live with liberty to an extent whereby others' liberty is not being disturbed.
•For him, there was only one true form of government and that was the republic and representative form of government and disobeying it was considered a crime.
•He was against the arbitrary rule of Churches and rather vested his trust in the State which is subjected to certain restrictions which separate that political power from a tyrant to an administrator who has the authority to enforce the law, that is accepted by the whole population.