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“EXCLUSIVITY OF NATURAL LAW : A CRITICAL

ANALYSIS”

Manipal University Jaipur


School of Law

Supervised by- Submitted by-


Dr. Shilpa Rao Rastogi Anshul Ranjan Srivastava
161401020
B.A.LL.B (Hons.)
V Semester

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CERTIFICATE

This is to certify that Mr. Anshul Ranjan Srivastava, student of B.A. LL.B. (Hons.) semester
V, School of Law Manipal University Jaipur has completed the project work entitled
“EXCLUSIVITY OF NATURAL LAW : A CRITICAL ANALYSIS” under my supervision
and guidance.
It is further certified that the candidate has made sincere efforts for the completion of this
project.

________________
Ms Shilpa Rao Rastogi

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ACKNOWLEDGEMENT

I hereby acknowledge the help and support of the teachers, who helped me in compiling this
project. I thank the faculty and management of Manipal University Jaipur, School of Law, as
the resources that were necessary to complete the project were provided by them.
I am highly indebted to my teacher “Ms Shilpa Rao Rastogi” for her guidance and constant
supervision as well as for providing necessary knowledge regarding the subject at hand and
also for her support in completing the project.
I would like to express my gratitude towards my parents and friends for their kind
cooperation and encouragement which help me in completion of this project.

Anshul Ranjan Srivastava

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Table of Contents
CERTIFICATE ............................................................................................................................................ 2
ACKNOWLEDGEMENT ............................................................................................................................. 3
INTRODUCTION ....................................................................................................................................... 5
STOICISM:................................................................................................................................................ 6
CRITICAL ANALYSIS .................................................................................................................................. 6
ANALYSIS ON THE BASIS OF CASE LAWS ................................................................................................. 7
1. B U C K O K E V G R E A T E R L O N D O N C O U N C I L : C A 1 9 7 1 ............................... 7
2. Regina v. Dudley and Stephens : 14 Q.B.D. 273 (Queen’s Bench Division. 1884). ...................... 8
BIBLIOGRAPHY ...................................................................................................................................... 10
WEBLIOGRAPHY .................................................................................................................................... 10

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INTRODUCTION
The concept of natural law is observed and studied under various forms but it originates from
ancient Greece, a land which was blessed with great thinkers and philosophers who
introduced and explained the importance of Natural Law to the western world in such a way
that their theories are referred to this day.

In ancient Greece it was thought and believed that universe in every particular is governed by
an eternal law which differentiates between what is just by nature and what is based in
accordance with a certain belief. The theory of Stoicism provides us with the most suitable
structure of natural law. As it was believed by the Stoics that the universe is governed by
“reason” and principles which are rational. Stoicism theory further argues that humans have
reason within them and therefore they know and obey their laws. The Stoic Natural law
theory was adopted by many philosophers and some which was related to religion and God.
For Thomas Aquinas, natural law is that part of eternal law of God which is known to human
beings through the means of power to reason.

In Medival period particularly the time of Renaissance and Reformation the natural law
theory found a new basis in human reason. The Dutch jurist Hugo Grotius talks about humans
by nature are not only reasonable but social also, Grotuis was one of the first few who laid
down initial stages of a theory and concept which later on evolved to be International law as
we know it today.

Natural law theory eventually formulated the concept of natural rights but in the Pre-modern
era the natural law theory lost its influence as Utilitarianism and Jeremy Bentham’s
positivism and materialism became dominant.

The western ideology which is based on Capitalism was founded on the idea that man is
capable of determining what is good and what is bad and that humans act in the light of laws
which help to suppress the bad and live according to good. This view regarding man and life
owes its existence to what in philosophy is known as the Natural Law Theory.

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STOICISM:
The stoics were rationalist to the core. For instance, according to them happiness results from
living in accordance with Nature, because they saw living in accordance with Nature as the
purpose of life. In their view only the person who applies his mind correctly will find the
purpose and organization given to Nature by God, so only he will be able to live in
accordance with Nature. The person who does not apply his mind correctly, on the other
hand, will not be able to do this. In addition, since he will not understand Nature, he will not
understand what happens to him or why it happens to him. Unlike the person who applies his
mind correctly, therefore, he will not be able to control the emotions that the events of life
trigger in the human being. He will be a slave to his emotions, while the emotions will be a
slave to the person who applies his mind correctly. This is the practical expression of
happiness, according to the stoics. The stoic Epictetus said that person who applies his mind
correctly that he would be “sick and yet happy, in peril and yet happy, dying and yet happy,
in exile and happy, in disgrace and happy”, because he controls his emotions. The stoics’ love
affair with rationalism did not end there. According to them a unique lifestyle was necessary
to achieve the correct understanding of Nature. Man would have to contemplate deeply over
everything he experiences, both his sensory experiences and his emotional experiences. Man
had to live in a continuous state of contemplation, in other words, and this required man to
break with following his desires.1

CRITICAL ANALYSIS
The natural law theory is a concept that has caused a lot of ambiguity throughout the history
because of its clash with positivism. The argument and applicability of natural law can be
better understood when we study of natural law in comparison with the Positivism and
Utilitarianism. The clash arises as we talk about its unchanging universal eternal divine
nature and that it is guided by reason and rationality, on the other hand the positivism
believes that laws and morals are unrelated and it solely depends on empirical actions and not
reason.

It is argued that the state laws are superior to any law and whether it is just or unjust it is the
law passed by the legislative of the state and it deserves to be followed if not done so in some
ways might pose a direct question to the sovereignty of a state and its individual existence.

1
http://www.newcivilisation.com/home/ideas-philosophy/a-critique-of-natural-law-theory/ last accessed on
20.08.18 at 1:00 am.

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The natural law theory also comes into question when we go beyond the terms of positive
traits of human beings and start considering the negative and essentially selfish qualities of
humans. It is questionable that whether a behaviour in accordance with human nature is
morally right and a behaviour not in accordance with human nature is morally wrong, this
point can be better understood with a situational example like if we had believe that humans
and in particular the masculine population of the world is aggressive in nature so should we
infer that war and fighting is morally right? Because then it will be a matter of a man’s
nature.

Natural law can also be questioned if we take offences like Adultery for interpretation as per
the natural law, a human being have their own rights to have any kind of relationship with
any person if the consent is mutual but when we talk about section 497 of The Indian Penal
code it states Adultery is a crime.

Natural law theory can also be criticised if we look into a more recent case, The Delhi gang
rape case in which there were five people accused of rape and murder of a woman because of
which four of them were given death sentence and one who was also a minor was treated as a
juvenile and given only 3 years of punishment, here we can question the natural law as it
talks about its universal application and if the natural law would have to be applied in this or
a similar situation then the punishment for everyone should be equal no matter his or her age
or gender. Natural law changes from situation to situation as human behaviour is subject to
change according to its surroundings and environment, natural law cannot always be the
criteria to ensure and enable justice in society. Natural law cannot be applied universally and
also eternally because of the dynamic and diverse nature of the state and society we live in.

ANALYSIS ON THE BASIS OF CASE LAWS


1. BUCKOKE V GREATER LO NDON COUNCIL: CA 197 1
Brief facts: The claimant fireman sought with his union to challenge a policy
document issued by his employers which gave directions suggesting that fire engine
drivers were to disobey traffic signals.
The question raised after this case was whether a fire truck driver or an ambulance
driver is supposed to shoot the red light in case of an emergency to prevent a greater
harm? If we take natural law into consideration in the matter of this particular case

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then we know the concept of Equity should be considered by the concerned courts in
deciding such matters.2

2. Regina v. Dudley and Stephens : 14 Q.B.D. 273 (Queen’s Bench


Division. 1884).
Facts. Dudley and Stephens along with Brooks and Parker(victim) were cast away at
sea without weeks of food and water except for some turnips and a turtle. After
twenty days, Dudley and Stephens proposed one person sacrifice himself in order to
save the rest. Brooks dissented while Dudley and Stephens decided to kill Parker
since he was the weakest and youngest. On the 25th of July, seeing no rescue in sight,
the two men killed Parker and the three men feasted on his body. Four days later a
vessel rescued them and Dudley and Stephens were charged with murder.
Issue. Whether the killing of Parker was murder considering the circumstances of this
case.
Now if we study this case in accordance to Natural law here Dudley and Stephens
killed parker in order to live, which they felt was necessary for their survival but the
court had different opinion that both the accused had no authority to decide who had
the right to live or die and life of person cannot be measured on the basis a person’s
weakness or strength, thus survival was the necessity of the accused but killing Parker
because he was the weakest cannot be justified and both the accused were rightly
charged with murder of the victim.3

2
https://swarb.co.uk/buckoke-v-greater-london-council-ca-1971/last accessed on 20.08.18 at 1:30 am.
3
https://www.casebriefs.com/blog/law/criminal-law/criminal-law-keyed-to-kadish/the-justification-of-
punishment/regina-v-dudley-and-stephens/ last accessed on 20.08.18 at 1:30 am.

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CONCLUSION
To sum up, Natural law theory is exclusive in nature and it can only be understood
better in comparison to positivism but the natural law theory is not completely
applicable in every situation as claimed by its thinkers because of its universal and
eternal characteristics. Morality and Law can go hand in hand but it is not necessary
to apply morals in every situation, laws made by state have their own significance and
will serve for the purpose of justice better as they are not subject to change in
behaviour environment or situation.

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BIBLIOGRAPHY

1. Jurisprudence and Legal Theory by V.D.Mahajan.


2. The Province of Jurisprudence Determined.

WEBLIOGRAPHY

1. www.scribid.com
2. www.casebriefs.com
3. www.newcivilistaion.com

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