Jurisprudencial Development during Medieval Period

SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN REFERENCE WITH NATURAL LAW

HIDAYATULLAH NATIONAL LAW UNIVERSITY Raipur, Chhattisgarh URISPRUDENCE PROECT ON SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN REFERENCE WITH NATURAL LAW

SU!MITTED TO Dr" A#i$ !" Patha% Fa&u't(, HNLU

SU!MITTED !Y:) SARTHA* MISHRA SEMESTER + V ROLL NO" -


CERTIFICATE OF DECLARATION I hereby declare that the project work entitled “ S.&ia' C.%tra&t Th/.r( i% M/0i/1a' P/ri.0: A% A%a'(sis i% R/2/r/%&/ 3ith Natura' La3 ” submitted to HNLU, Raipur, is record of an

oriinal work done by me under the uidance of !r" #$im %" &athan, 'aculty !ember, HNLU, Raipur"

Sartha4 Mishra R.''" N." - S/$/st/r + V


AC*NOWLED5EMENTS I would like to sincerely thank the Leal !ethod (eacher !r" #$im %" &athan for i)in me this project on “*ocial +ontract (heory in !edie)al &eriod #n #nalysis in Reference with Natural Law”, which has widened my knowlede on the scope and rele)ance of it in the Indian Leal *ystem" His uidance and support has been instrumental in the completion of this project" !y heartfelt ratitude also oes out to the staff and administration of HNLU for the infrastructure in the form of our library and I( lab that was a source of reat help in the completion of this project" I also thank my friends for their precious inputs which ha)e been )ery helpful in the completion of this project"


TABLE OF CONTENTS

O!ECTIVES""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""6 RESEARCH METHODOLO5Y"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""6 INTRODUCTION"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""7 CHAPTERISATION """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""CHAPTER """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""Mai% Chara&t/risti&s .2 Natura' La3 Pri%&ip'/ .2 urispru0/%&/ """"""""""""""""""""""""""""""""""". CHAPTER 8""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""// Natura' La3 a%0 th/ H.99/sia% S.&ia' C.%tra&t """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""// Natura' La3 a%0 th/ S.&ia' C.%tra&t th/.r( .2 .h% L.&4/ """""""""""""""""""""""""""""""""""""""""""/0 Natura' La3 a%0 R.uss/aus S.&ia' C.%tra&t Th/.r( """""""""""""""""""""""""""""""""""""""""""""""""""""/1 CONCLUSION""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""/2 !I!LIO5RAPHY""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""/3


4%56+(I76* → →

(o discuss the concept of Natural law" (o discuss the )arious social contract propounded durin the renaissance period with reference to its relation to the Natural Law"

R6*6#R+H !6(H484L49: (he method of research adopted in this project is secondary in nature" I ha)e referred sources on the internet as well as books on social contract theories as well as that of jurisprudence for the clarification of the concepts of natural law and the social contract theories a)ailable in the uni)ersity library besides addin my personal )iews and kno wlede of the topic"


IN(R48U+(I4N In medie)al te;ts the term “ jus naturale” can mean either natural law or natural riht" “ Jus naturale” in the former sense, and also lex naturalis, mean the uni)ersal and immutable law to which the laws of human leislators, the customs of particular communities and the actions of indi)iduals ouht to conform"/ It is ea? because it is tauht by natural instinct, i"e" some capacity innate in human beins, or >b? because it is accessible to =natural reason=, i"e" to personal reflection independent of any special re)elation from 9od, such as the +hristian faith claims to be, and independent of the moral authority of other human beins@ or for both reasons" (his study of social and political states has linked philosophers across the aes" *ome
D (H4!#* H4%%6*, L EVIATHAN , ed" +"%" !acpherson, New :ork, &enuin %ooks, /.-G@ 54HN L4+6, T WO REATISES OF GOVERNMENT , ed" &eter Laslett, +ambride Uni)ersity &ress, /../" T


contract as re)ocable" (he indi)idual, as opposed to the *o)erein, retains the authority to terminate the contract at any time" Hampton called it an aency theory, retainin HobbesA terms, where the rihts of each subject are only loaned to the *o)erein"1 (he supremacy of the human lawi)er, as posited by !achia)elli and in their di)erse ways also by the 'rench and 6nlish political theorists 5ean %odin and (homas Hobbes and others, interwo)e in the followin centuries with the continued insistence of Huo 9rotius, the 8utch political and leal philosopher, and others on the dominance of di)ine reason and humansE participation in it, by which they ha)e access to the natural law" In the present project topic an attempt has been made to analy$e the natural law theory in accordance with the social contract theories propounded by Hobbes, Locke, and Rousseau durin the renaissance period"

0 56#N H#!&(4N, H OES AN! THE S O"IAL " ONTRA"T T RA!ITION , p" 0, +ambride Uni)ersity &ress, /.-2" 1 I#i

%$ SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN REFERENCE WITH NATURAL LAW

CHAPTERISATION CHAPTER  T. 0is&uss th/ &.%&/pt .2 Natura' 'a3 th/.r( .2 urispru0/%&/"

Natural law theory has been interpreted differently at different times dependin on the needs of the de)elopin leal thouht" %ut the reatest attribute of the natural law theory is its adaptability to meet new challenes of the transient society"G (he e;ponents of natural law philosophy concei)e that it is a law which is inherent in the nature of man and is independent of con)ention, leislation or any other institutional de)ices" 8ias and Huhes describe natural law, “as a law which deri)es its )alidity from its own inherent )alues, differentiated by its li)in and oranic properties, from the law promulated in ad)ance by the *tate or its aencies”" *imilarly, accordin to +ohen, “natural law is not is not a body of actual enacted or interpreted law enforced by courts, it is in fact a way of lookin at thins and a humanistic approach of judes and jurists" It embodies within it a host of ideals such as morality, justice, reason, ood conduct, authority" *ome thinkers belie)e that these rules ha)e a di)ine oriin, some modern socioloical jurists and realists ha)e souht resource to natural law to support their socioloical ideoloy and the concept of law as a means to reconcile the conflictin interests of indi)iduals in the society”"2 # widespread concept of political and leal thouht, denotin the areate or collection of principles, rules, laws, and )alues dictated by human nature and therefore seeminly independent of concrete social conditions and the state" Natural law has always appeared as a )alue cateory relati)e to the leal order in force in a i)en political society and to the system of social relations consolidated by such a leal order" In )iews ser)in as apoloetics this system and the e;istin laws are declared to be in conformity with natural law and natural justice@ )iews callin for social transformations declare the society and its laws to be in contradiction with natural law and

G R"B" !" 8I#*, L EGAL T HEORIES OF J URIS&RU!EN"E , Gth ed", +ambride Uni)ersity &ress, /.-3" 2 +4H6N, R EA!INGS IN J URIS&RU!EN"E AN! L EGAL & HILOSO&H' , p"22F, Har)ard Uni)ersity press, /.G/"


justice" 8urin the lon history of natural law its content has )aried accordin to the historical conditions, as well as the social and political positions of its proponents" 3 (he idea of natural law had already de)eloped in ancient times, especially in the classical world" It was used by the 9reek *ophists and #ristotle and was central to *toicism" #lon with ci)il and popular law Roman jurists sinled out natural law >jus naturale? as a reflection of the laws of nature and the natural order" +icero stated that a law of the state that contradicted natural law could not be )iewed as law" 8urin the !iddle #es natural law was primarily theoloical in form" It was an interal part of reliious doctrine in the teachin of (homas #
(he phrase Jnatural lawE, has a fle;ible meanin" It has been interpreted to mean different thins in its e)olutionary history" Howe)er, it has been enerally been considered as an ideal source of law with in)ariant contents" (he chief characteristic features of natural law may be briefly stated as follows /" It is basically a priori method different from empirical method, the former accepts thins or conclusions in relation to a subject as they are without any need or en

while empirical or a posteriori approach tries to find out the causes and reasons in relation to the subjectmatter" D" It symboli$es physical law of nature based on moral ideals which has uni)ersal applicability at all places and times" 0" It has often been used either to defend a chane or to maintain status

CHAPTER 8 T. 0is&uss th/ 1ari.us s.&ia' &.%tra&t pr.p.u%0/0 0uri%g th/ r/%aissa%&/ p/ri.0 3ith r/2/r/%&/ t. its r/'ati.% t. th/ Natura' La3"

In the present chapter the social contract theories of Hobbes, Locke and Rousseau has been discussed separately with reference to the natural law principle and thereby showcasin itEs departure from the same" Natura' La3 a%0 th/ H.99/sia% S.&ia' C.%tra&t

'or centuries, political philosophy has dealt with methods of makin the leal orderin of society mirror what is moral and just" +entral to this concept is whether or not laws in themsel)es are just and moral, and how human beins with different traditions and e;periences can arri)e at moral laws, reject immoral laws, and discern between the two" (his concept of natural law has been arri)ed at in different ways, and in some sense (homas HobbesE )ersion of the social contract can be )iewed not only as a competin )ersion of natural law theory, but the modern day interpretation in most Besternstyle democracies as the basis for moral lawmakin" (he concept of natural law is larely attributed to *t" (homas #

no peace" He arued that the only thin that can neate these moti)ators are fear of dyin, desire of oods and a hope to enjoy the fruits of oneEs own labor" (hus, he defined natural law as “# law of nature is a precept, or eneral rule, found out by reason, by which a m an is for bidden to do, that, which is destructi)e of his life, or taken away the means of preser)in the same@ and to omit, that, by which he thinks it may be best preser)ed”". (his particular definition can be cateori$ed into three percepts definin Hobbes concept of Natural Law" (he first precept of HobbesE is that natural law becomes the opposite of the wild and untamed world of warfare that unrestricted e;ercise of the rihts of nature permits, as Hobbes obser)es@ “that e)ery man, ouht to endea)our peace, as far as he has hope of obtainin it@ and when he cannot obtain it, that he may seek, and use, all help, and ad)antaes of war"/F (he second precept of Hobbesian natural law suests that indi)iduals should be willin to lay down their natural rihts in or der to achie)e peace"// 'inally, the third precept suests that once these natural rihts ha)e been laid down for the sake of peace an e;pressed contract has to be made between mutually consentin people and the participatin indi)iduals are bound to honor the arranement because without such a contract there would be no de)elopment in state of nature and thereby the state of war would persist" /D D/partur/ 2r.$ Natura' La3 Pri%&ip'/ .2 Th.$as A;ui%as

(hus Hobbes de)ises a theory of natural law that stands in sharp contrast to the former #ristotelian forms of natural law e;pounded upon by #
. (H4!#* H4%%6*, L EVIATHAN , p" 21 4;ford Uni)ersity &ress, 4;ford, /..2" /F I#i$ at p" 21" // I#i$ at p" 2G" /D I#i$ at pp" 223/"


Under former (homistic norms for human moti)e, happiness was the first and foremost oal, whereas under Hobbes fear and selfinterest were the primary moti)ators" Laws and justice were also points of contention, as (homistic natural law saw these as objecti)e from the standpoint of 9od, Hobbes saw these as belonin to the entity of the state e;clusi)ely" 'inally, the oriins of natural law stand in stark contrast, for Hobbes remo)es and replaces the concept of 9od as bein ad)ocated by the (homistic norms with his concept of the absolute so)erein" Natura' La3 a%0 th/ S.&ia' C.%tra&t th/.r( .2 .h% L.&4/

#ccordin to Locke Natural law is, “the law of nature is a declaration of 9odAs will and a standard of riht and wron" It is a law that already o)erns the state of nature, i"e" a presocial state in which all men are free and e

Natura' La3 a%0 R.uss/aus S.&ia' C.%tra&t Th/.r(

(raditionally moral judments in opposition to pre)ailin norms or law were made within the framework either of re)elation or of that most rubberlike conceptual de)ice, natural law" %ut the creed of the *a)oyard )icar clearly indicated RousseauAs reluctance to accept the authority of a %ible whose interpretation was so )ehemently disputed on all sides" (his rejection would seem to ha)e left him no option but recourse to some )ersion of natural law theory" In its most common and eneral form this theory postulated a law known by reason, and morally obliin man on the ultimate authority of a 9od also known by reason" R.uss/aus Criti&is$ .2 H.99/s a%0 L.&4/

In RousseauEs state of nature, the primiti)e man was a creature of isolation seldom comin into contact with his fellows" (his description is corollary of his far more radical position that man is not naturally, i"e", of necessity, a rational animal" (his was in contradiction to the theory propounded by Hobbes as he had pre)iously denied manEs sociality but not his rationality" Rousseau also critici$ed the theory propounded by Locke that pro)ided for a natural and lanuae less thouht with a con)entional )ocabulary and synta; e;trinsically added

to

antecedent and independent thouht processes" He rejected this dualism, insistin that only the most elementary kind of thouht is possible without words to solidify abstract ideas and relations" (houh man has the potential for hiher thouht, without lanuae this capacity can ne)er be reali$ed" R.uss/aus R/
(here are other reasons which some ha)e seen as e)idence that Rousseau rejected natural law" In his first )ersion of the *ocial +ontract, there is a chapter which contains a criti

belief that the unfoldin of manAs rational capacities is a result of a prior rowth of the passions" #ccordin to him, (here is a natural law but in order for it to be operati)e certain conditions must be fulfilled@ in the absence of these conditions it is not obliatory" (his idea of a conditional natural law is by itself enouh to differentiate RousseauAs )ersion from the absolutist )ersions of tradition" His reason for makin leitimate laws conditional constitutes the )ery heart of the *ocial +ontract" %ut unfortunately most if not all states, from RousseauAs point of )iew, are far from ideal, and laws bear une

CONCLUSION Under the leadership of anthropoloists, analyses of human beinsE internal process of response to the e;iencies of e;istence within a particular cultureMto conscious and subconscious psychic dri)es and moti)ationsMdeeply affected the jurisprudential study of law and society and helped to brin naturallaw thinkin to a /.thcentury nadir" In the anthropoloist %ronisaw !alinowskiEs most mature statement on the matter, he distinuished four major meanins of the word la) as important in understandin the rowth of ci)ili$ation" (hey included “laws of nature” in the scientific sense of rules o)ernin humansE conscious adaptations to the en)ironment@ rules of “efficiency” and “con)enience” accordin to which the roup li)es@ rules for conflict adjustment@ and rules about enforcement of the last two" No conception of natural law, which had enaed earlier thinkers for two millennia and more, was included" In addition the )ehement criticism of the natural law principles by the social contractualists inited the radual downfall of the natural law principle that had co)ered up the area of the leal for well a period of more than se)enteen centuries" (his process was sped up by the emerence of new schools of jurisprudence includin #nalytical *chool of Law, Historical *chool of Law and *ocioloical school of Law"


!I!LIO5RAPHY T HE & OLITI"AL W RITINGS OF J EAN J A"(UES ROUSSEAU , ed" +" 6" 7auhan, 4;ford Uni)ersity &ress, 4;ford, >)ol" I, /.2D?" (H4!#* H4%%6*, L EVIATHAN , 4;ford Uni)ersity &ress, 4;ford, >/..2?" B#L(6R '#RR6LL , A " OM&ANION TO THE S UMMA, *heed  Bard, >7ol" III, /.0.?" R"B" !" 8I#*, L EGAL T HEORIES OF J URIS&RU!EN"E , +ambride Uni)ersity &ress, >Gth ed", /.-3?" th +4H6N, R EA!INGS IN J URIS&RU!EN"E AN! L EGAL & HILOSO&H' , Har)ard Uni)ersity press, >G

ed"/.G/?" R"B" !" 8I#*, L EGAL T HEORIES OF J URIS&RU!EN"E , +ambride Uni)ersity &ress, >1th ed" /.32?"

Jurisprudencial Development during Medieval Period

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