CONTEMPORARY NATURAL LAW THEORY

During 14-15th century new discoveries in new discoveries in science took place 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
which demanded greater state protection. Cumulative effect of this situation was that
a general wave of nationalism demanded for an absolute sovereignty of the state and
positive laws gained supremacy.
The understanding of natural law in the form of divine inquiry became open to rational
inquiry. The natural law theories propounded by Hobbes, Locke and Rousseau came
into picture and revolutionized the existing institutions and held that social contract
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.
Therefore by social contract we surrender our natural freedom in order to create an
orderly society. He further says that any human action which includes morality is self
serving in nature as it shows our essential selfishness.
He further says that because we are essentially equal both mentally and physically i.e.
Even the weakest has the strength to kill the strongest, he says, this equality
generates disagreement and then we tend to argue for 3 main reasons: (1) competition
( for limited supplies of material possessions), (2) distrust and (3) glory (we remain
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 persons 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 wont steal from your property similarly you dont steal from my property. But such
agreement wont 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.
Lockes social contract theory gives us two ideas:
Its 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 mans 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 peoples 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 individuals 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.