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Sunday, 12 January 2020

Jurisprudence and Legal Theory: Reasons for Revival of Natural Law in 20th Century

Reasons for revival of natural Law theory in 20th Century



What is Natural Law?

Natural law is the body of moral principles which is naturally developed by human reason alone. It is not a man-made law which based on the structure of reality itself; is the same for all human beings and at all times, is an unchanging rule or pattern which is there for human beings to discover;, is the naturally knowable moral law and is a means by which human beings can rationally guide themselves to their good. Unlike Positive Law which are the formal legal enactments of a particular society.

Black’s Law Dictionary defines natural law as a philosophical system of legal and moral principles purportedly deriving from a universalized conception of human nature or divine justice rather than from legislative or judicial action; moral law embodied in principles of right and wrong <many ethical teachings are based on natural law>— Also termed law of nature; natural justice; lex aeterna; eternal law; lex naturae; lex naturalae; divine law; jus divinum; jus naturale; jus naturae; normative jurisprudence; jure naturae.



Natural Law Theory was highly attacked around the 17th Century and finally was rejected. Rejection of Natura Law Theory was first accompanied by utilitarianism and later by positivism. After the rejection of natural law, Command Theory was relied upon, however, command theory could not be relied upon anywhere subsequent its disasters aftermath, this led to the revival of Natural Law Theory in the 20th Century. During the 20th Century, Natural Law received new attention, partly in reaction to the rise of totalitarianism and an increased interest in human rights throughout the world. The revival of natural law theory was not an overnight process; rather it was a result of various reasons which will be the gist of this post.

Natural Law Theory in the 20th Century

Natural law after the Second World War is referred to as Neo-Kantian because the revival of natural law relied heavily on Kant's theory of knowledge by the majority of philosophers. The new philosophy accepted and adopted Kant’s rejection of a pre-existing discoverable and universally valid natural law. They accepted what Kant was saying. Kant says that Natural Law is changing. It adopted Kant’s basic conception of ethics that is considered the importance of ethics in natural law. The revival of natural law in the 20th Century invites slogans like liberty, equality rights, human rights, justice, and public policy. Rudolf Stamler and Gustav Radbruch are the main exponents of the revived Natural Law.

Reasons for the revival of Natural Law Theory in 20th Century


1. Rise of monopoly capitalism

Rise of monopoly capitalism brought a lot of impacts which led to the revival of natural law, on one hand, with the rise of monopoly capitalism, capitalist countries scrambled for colonies to obtain their demands such as cheap labor and free markets. This led to the first division of the world among capitalist powers.

Dissatisfaction among some colonial powers led to the outbreak of the First World War (WWI) (1914-1918). Also, it is important to note that, the arms race and military escalation made war inevitable. After WWI there was a second division of the world whereby Italy and Germans were dissatisfied and they had no alternative but to wage war which is Second World War (WWII) (1939-1945).

WWII brought intolerable impacts to people and participant countries. Therefore the WWII and its effects lead to the revival of Natural Law theory since there was disorder and social unrest in the state, the capitalists turned back to Natural Law to control the state.  Natural Law invited slogans like liberty, human right and equality thus community harmonized and the social progress was sustained.

On the other hand, monopoly capitalism makes the basis of capitalism that is freedom of contract becomes redundant.  The growth of capitalism led to the formulation of classes of rich persons and poor persons in a capitalist society. Whereas the richest class got much interest in politics, and they wanted to control of the state while the lower class got no such opportunities and suffered the consequences of the system. This state of things was facilitated by the existence of the positive law which favored the ruling class and the rich. This led to many devastating impacts that necessitated the revival of natural law. Natural law was necessary because it gave room for the social values and morality for all.

2. Impact of Positivism

After rejection of Natural Law Theory capitalist went on positivism, with positivism the law was regarded as a command (Command Theory) and the law was followed as it is. Therefore when the state authority makes the law, it must be obeyed as it is and no one could question its validity to the state subjects no matter how unjust it could be. With command theory, positivism witnessed the rise of Nazism and Fascism which was termed to be the palpable reason for the outbreak of WWII. Nazism was in Germany under the dictator, Adolph Hitler. It was on nationalism based on racism, Germanic Christianity and Volkish.

Fascism in Italy took the face of Nazism. It was dictatorial under the dictator Benito Mussolini. Generally fascist governments brought many sufferings to the citizens, for example, Hitler with his Nazi regime embarked on committing atrocities to innocent individuals and Jews depriving them of their life, liberty, property, freedom, and dignity. Crimes against humanity, crimes against peace and war crimes perpetrated by Nazi in complete violation of the law, justice and moral rules which finally culminated in the Nuremberg trials in 1946.


Due to this impacts bourgeoisie class wanted to change the philosophy to solve the problems of positivism they had to rethink on how they should solve these problems and appeals to the people on how they were going to deal with such problems. They wanted to find a new philosophy to show persons that, despite all that had happened, capitalist as a system was still humane (had a human face). For that reason natural law was resumed to give capitalism a humane face, and the revived natural law was modified to suit the new conditions.

3. The role of Prominent Philosophers

These include Rudolf Stamler (1866-1938) and Gustav Radbruch (1878-1949). These philosophers promoted and wrote on the importance of the revival of natural law in the society. Rudolf Stamler was a German philosopher and a Professor, he advocating the revival of Natural Law Theory over the existed positive law by the postulate that “all positive law is an attempt at just law”. The purpose of the law is not to protect the will of one but to unify the purposes of all. According to him, the law of nature means just law that harmonizes purposes within the framework of social life, Thus, the law has to be realistic, not absolute concerning changing circumstances of a particular time and place. He further postulated that the fundamental principles necessary for a just law are two that is the principle of respect, and the principle of community participation.

Gustav Radbruch (1878-1949), he was also a German who alternatively known as born again, because before WWII was the ostentatious positivist but after WWII changed to modern natural law. He expounded the doctrine of a higher law which demonstrated that all the Nazi acts were contrary to all canons of natural law and severely condemned the Nazi rule. Radbruch declared that a general acceptance of positivistic philosophy in the pre-Nazi Germany made smoother the route to dictatorship. In the post-war period, he enunciated the doctrine of the inner morality of law to demonstrate that Nazi laws were not laws as they were unmindful to natural justice. He insisted that citizens had the right to disobey such positive laws if they were contrary to justice
All the above-postulated views of the said philosopher contributed to the revival of natural law in the 20th century.

4. Dissatisfaction with the Command Theory

Dissatisfaction with the command, the theory was brought by the desire to establish closer relationships between law and morality. During the 19th Century, positive law kept law and morality separate. This caused a reaction against the importance of positive law because it was realized that abstract thinking or a priori assumptions were not completely futile. These non-natural theories failed to solve the problems created by the changed social conditions.
The separation of law and morality created an idea that law was a command from a sovereign that has to be respected accompanied by sanctions for non-compliance. This idea of law leads to the rise of Fascism and Nazism which eventually facilitated the enactment of brutal laws such as those that intensified the execution of Jews in Germany. The emergency Fascism and Nazism caused the dissatisfaction with the command theory and led the development of counter ideologies and thus contributing to the revival of natural law in the 20th century.
It was, later on, realized that Natural Law had some importance. There were some values and standards in natural law which were considered fruitful in solving the socio-economic problems.


Final Remarks
The revival of natural law was inevitable in the twentieth century. Because, the social, economic, political, scientific and cultural environment was no longer conducive for the existence of positive law

References
Eley Geoff ( 2013), Nazism as Fascism: Violence, Ideology and the Ground of Consent in Germany, USA, and Canada, Routledge Publishers.

Myneni, S. R ( 2001), Jurisprudence ( legal theory),2nd Ed, Asia, Asia Law House.

Prof Ghormade V (2008), Jurisprudence and Legal Theory, India, Hindi Law Publications

Stewart Ross (2003), Causes and Consequences of the First World War, ISBN 0 237 525682, London, Evans Brothers Ltd.

Stone, J (1965) Human Law and Human Justice, California, Stanford University Press.
Strachan Hew (1998), World War I: A History, London,  Oxford University Press.
Vinogradoff F. B. A (2002), Introduction to Historical Jurisprudence, London, Oxford University Press.


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