2008

STUDENTS NAME:
SHADRACK JABA
REG: NO.
53912/T.2005
COORDINATOR: DR.
MAPUNDA

UNIVERSITY OF DAR ES SALAAM

ASSIGNMENT
The problem with employing natural law theories is that they can
denounce legal heresies in the same way as medicine denounced
medical heresies. This confirms the tendency towards being
conservative or even reactionary. If we had adhered to the Greek
concept of natural law we would probably still retain slaves.
Moreover, most moral reform in law have stemmed from
individuals acting against the contemporary societal mores
(Anonymous). Discuss this statement.
FACULTY OF LAW

JURISPRUDENCE

LAW 300

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Natural law, in jurisprudence and political philosophy is referred to as a

system of rights or justice common to all human kind and derived from
nature rather than that from the rules of society or positive law1.
According to natural law proponents, evidently Cicero2, a true law is a right
reason in agreement with nature and of universal application, unchanging
and everlasting. On the other hand, positivist jurists especially Hart3
contends that natural laws are mere rules of morality.
Generally speaking, legal theories works like a bicycle chain i.e they are inter
dependant, the learned editor Dr. Doherty. M4 argues interlia that natural law
seeks to find coherent theory that will check upon an unjust legal system
that lacks moral justification; the view that matches squarely with those of
Sir Lauterpacht5 who asserts that it is in the light of natural law that positive
law must be interpreted and, if need be, supplemented and corrected. Thus,
it is in the light of aforesaid views of the two this essay will dwell in extenso
by taking into consideration dynamism, conservatism and reactionary
element of natural law theories in various historical eras.
I subscribe to the view that natural law theories in some way are both
conservative, and reactionary. Finch, J.D,6 contends, mutatis mutandis, that it
[natural law] can be employed as the vehicle of reform (or even of
revolution) or of reaction; it can be used or abused, therefore, in the line of
that view it is undisputable truth that natural law theories are dynamic
(flexible) and have been employed by individuals from different historical
epoch to address, justify or challenge the existing status quo, or societal
mores.

1
2
3
4
5
6

Britannica Concise Encyclopaedia

Lloyds introduction jurisprudence (1985)5th ed., P.150. [See, Ciceros de republica.]
Prof. Hart (1907)The concept of law
Jurisprudence: The philosophy of law (2001) 2nd ed. P.151
Sanders, A.J.G.M (1979) international Jurisprudence in African context, P. 171
Introduction to Legal Theory(1979) 3rd ed. P. 40

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Ancient Greek and Roman philosophers contends that natural laws are
unchangeable (static) rules, this is contradicted by our understanding of
evolution therefore, contemporary practice holds contrary views, and that
natural laws must be accompanied with dynamism element as to the
dictates of time and societal needs. This approach is justifiable by appraising
the historical trends from Classical naturalists (ancient era) to Neo-Kantian
naturalists in relation to other jurisprudential schools of thoughts especially,
Legal positivism as follows.
In early ages, the conception of the laws of nature revolved around the
existing social strata, this is examplified by proportions of ancient Greek
philosophers7 who centred their ideas to justify the mode of production that
was prevailing in their societies (slavery and feudalism). Foristance, Plato
categorically divided his society into three classes namely as, men of gold
(rulers), men of silver (soldiers), and bronze (producing classes). Again,
Aristotle who came from the ruling class advocated much on the
preservation of peace and the existing classes by observing laws. This
conservatism tendency of natural law theories was also evident in Feudal
English legal system whereas, the common law 8 was too rigid (conservative)
for example it did not recognise principles such as right to set-off, counterclaim, beneficial interest, and tort of negligence, to mention just a few.
Moreover, women were discriminated and oppressed in all spheres of life by
using natural law theories in justifying such social set up, besides at this
historical epoch it was natural for a king (and queen) to be above the law.
However, these conservatism elements shown does not in themselves vitiate
the essence of natural law theories, because even during the 18 th century
and afterwards where legal positivism was at its apex, the same social
injustices were evident whereas holding of colonies9 were justified by
positive laws as previously possession of slaves and serfs were justified by
7
8
9

Lloyds introduction to jurisprudence [1985] 5th ed. PP.145-160

Richardson(1985), a guide to negotiable instrument, 7th ed. Chap. 1, PP. 1-33
See, [Walter Rodney, How Europe underdeveloped Africa]

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natural

laws.

Additionally,

in

medieval

England,

equity

laws

were

administered according to the best conscience of the chancellors founded on

the fundamental precepts of prevailing morality 10, also the common law
courts convicted people on the ground that the moral feelings of the
community had been outraged by such act.
In 15th to 16th centuries, the natural law theories shifted their attention from
national law and promulgated the concept of international law, this is evident
among the rationalist school of natural law pioneered by Hugo Grotius11
whose formulation of principles such as jus gentium, and pacta sunt servanda
emerged at a time where intercourse between states through commerce
(mercantilism) was emerging thus, his theories came to justify and regulate
the social set up, therefore, the element of universality under naturalists
theories became self-evident as international law was emerging.
Around 17th and 18th centuries natural law was conceived as an instrument
for prevention of autocracy and despotism, 12 this is exemplified by constant
political revolutions and nationalism in Europe and America 13, for example, in
America, natural law theory was an important influence on the founders of
American government, as evidenced by the principles of the U.S Declaration
of Independence which refers briefly on laws of nature citing equality and
other alienable rights as self-evident. John Locke and other scholars
philosophies14 of naturalism became a tool of the Glorious revolution, and
lied down Bill of rights in England. Moreover, Montesquieu theories15 of social
contract, liberty and separation of power fuelled much the French revolution,
and afterward putting in place of The French Declaration of the rights of man

10

Chakravarti (1989) infra, P.40 [see also, Bodenheimer, 2nd ed. Jurisprudence, P.145]
Sander, op. Cit., PP. 4-6 [ refer, Hugo (1625), De jure belli ac pacis ]
12
K.P Chakravarti (1989) Jurisprudence and legal theory .PP.60-1
13
John P. Reid, The role of Natural law in America revolution, Harvard Law Review, (March
1995) Vol.108, No.5.
PP.1202-7, [see also, Blackstones commentaries].
14
Chakravarti, Loc.cit.
15
Ibid.
11

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and of the citizen, which asserts liberty, property, security, and resistance to
oppressions as imprescriptible natural rights'.
Again, from the late 18th century natural law theory was a weapon in the
battle over government powers to control and regulate economic affairs;
defenders of Laissez-faire theory of capitalism some time invoked natural
right theories.
In the second half of 18 th to the late 19th century natural law theories
declined dramatically, partly as a result of sceptical attacks by Geremy
Bentham and later John Austin thus, legal positivism and utilitarianism
became dominant legal philosophies of the time. However, towards the end
of 19th century16 due to the rise of totalitarian regimes in Europe as Fascism
and Nazism which culminated into World War II and led to high inequalities in
societies, thus pure positivism failed to solve problems created by new social
conditions therefore, this accelerated the revival of natural law theories (i.e
natural law with a variable content17).
The revival of natural law thinking was evident in many international legal
instruments, and in many countries legal frame work afterwards as follows;
The end of World War II, and the establishment of United Nations
(organisation), principles of natural rights (law) were incorporated in the
U.Ns Charter in 1945 especially peace and dignity on its preamble, 18 also
article 38 of the statute of international court of justice cite principles of
general application as source of international law; besides, the universal
declaration of human rights (1948) to a large extent incorporates inalienable
natural rights.
On municipal level, especially in England and other Commonwealth
countries, principles of natural law (justice)19, are in some instances invoked
16
17
18
19

V.D Mahajan (1987) 5th ed. Jurisprudence and legal theory, P.714
Stammler (1856-1938), referred in Mahajan, op. Cit., P. 717
C.P Maina (1989) A polemical approach to three schools of jurisprudence, P. 9
Ibid., PP. 32-34

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to test the legality of administrative acts [Anisminic V. Foreign compensation

commission and another20], decisions of courts of law, recognition of foreign
judgements and custom. Other rules emanated from natural law ideas are
such as the test of reasonableness, quasi-contracts, privacy against undue
encroachment, unjust enrichment (Lord Manifields formulation)21, and
protection against nationalisation of properties 22; in the case of Oppenheimer
V. Cattermole and cooper (inspector of taxes) Lord Cross23 held interlia that
legislation which take away without compensation from a section of the
citizen body singled out racial ground all their property.....a law of this sort
constitutes so grave an infringement of human right that the court of this
country ought to refuse to recognise it as law at all , subsequently, Lord
Morris in Wiseman and another V. Borneman and another, observed that
.....natural justice; it has been said is only fair play in action nor do we wait
for direction from the parliament 24. In U.S.A, the Supreme Court in the case
of Marbury V. Madison (1803) asserted its right to declare any law or action
unconstitutional in the light of natural rights embodied in the constitution,
this practice is still been followed in U.S courts consistently25.
Around 1945-1960s the anti-colonial sentiments in the third world nations by
chanting

slogans like freedom and liberty, right to self-determination,

equality and dignity, et cetera revolved around natural law theories

propounded by rationalist scholars. Moreover, currently most of these
countries have Bills of rights26 in their constitutions, essentially, enumerating
natural inalienable rights.

20

[1969]2 AC 147
Mahajan, supra., P. 713
22
Chakravarti, supra., P. 41
23
[1976] AC 249 at P. 278
24
[1969] 3 ALL ER 275 at P. 289
25
Mahajan, op. cit. PP. 713-4
26
Tanzania incorporated the Bill of rights in its constitution in 1984. In Germany it is known
as the basic laws of
Germany (1949).
21

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Conclusively, it is obvious that most of moral reforms in law arise out of

individuals struggling against the existing societal practices for example
philosophers , either by the use of prevalent norms or theories or by
employing new one, but, not in the way

Rosss put it that like harlot,

natural law is at the disposal of every one...

, this is due to the fact that,

27

the purpose of any theory of law is to act as a tool of the ruling class to
undermine the ruled, and affirm or fight against any unfavourable practices;
this is the case even in legal positivism. All in all, any legal theory is based
on justice as perceived at the material time, and aims at the realisation of
the common good, and it consists of mainly two components namely as
natural and positive law theories. Both elements are indispensable for
whereas natural law provides the foundation, positive law supplies the form
of the law. Therefore, natural law constitutes the normative basis of positive
law, as Doherty, M28 asserts that natural law reminds us that law is a social
endeavour rather than a static fact, thus in my submission, law and morality
overlaps in certain occasions29.

27
28
29

Ross, on law and justice, P. 261 [see, Finch. supra. P. 40]

Supra, P.151
Chakravarti, P. 41