Table of Contents

1.0INTRODUCTION..................................................................................................................................2
1.1Historical Perspective of Natural Law....................................................................................................2
2.0 REASONS FOR REJECTION OF NATURAL LAW IN 19TH CENTURY..........................................3
2.1 Emergence of Capitalistic economy..................................................................................................3
2.2 Indeterminacy of common law in 19th Century..................................................................................4
2.3 Codification.......................................................................................................................................5
2.4 Rise of Sovereign National States......................................................................................................6
2.5 Development in Social sciences.........................................................................................................7
2.6 Rise of legal positivism.....................................................................................................................8
2.7 The influence of Utilitarianism..........................................................................................................9
3.0 REASONS FOR REVIVAL OF NATURAL LAW IN THE 20TH CENTURY...................................10
3.1 Growing Dissatisfaction of Legal Positivism...................................................................................10
3.2 Impact of Nuremberg Trial..............................................................................................................11
3.3 Post War Human Rights Phenomena or Recognition.......................................................................12
3.4 Rise of Neo-Kantianism natural law................................................................................................13
3.5 Neo Thomism or Renewal of Catholic Natural Law........................................................................13
4.0 CONCLUSION...................................................................................................................................14
REFERENCES..........................................................................................................................................16

1
1.0INTRODUCTION
This essay delves into explicating the reasons for rejection of Natural law in the 19 th Century and
its revival in the 20th Century. The essay has, in details, provide reasons for rejection of natural
law which cut across all sphere of life in the 19 th Century. This includes politics, economy and
society of the time. After the rejection of Natural Law, as history unfolds itself in the 20 th
Century, natural law revived with a new form altogether different from the tradition conception.
This revival of natural law was caused with a number reasons which this essay dealt with them
extensively. It is important before going direct to the reasons for rejection of Natural law, to look
a short historical perspective of development of natural law so as to have historical context.

1.1Historical Perspective of Natural Law

Natural law is thought to have been introduced by the Ancient Greek Philosophers, Socrates,
Plato and Aristotle purporting that law existed for the purpose of facilitating the pursuit of good
life. In Roman Era, Natural law was perceived by Cicero as right reason in agreement with
nature. However, in medieval era Saint Thomas Aquinas took it to its most solid form where
natural law was perceived in connection to supernatural powers. 1 In the modern Era, natural law
laid foundation of secularization. It was conceived in terms of nature and reasoning. Greater
contribution of the modern in development of natural law is attributed to Hugo Grotious, Thomas
Hobbes.

Toward the end of the 18th Century Natural law begun to lose favor and in the 19 th Century
natural law was hibernating. It was rejected by prevailing social, economic and politics of the
time. Legal positivism emerged as a default legal theory of the 19 th Century. Interestingly,
occurrence of two World Wars and social circumstances of the 20 th Century laid a fertile ground
for natural law to revival. Thus, in 20th Century Natural law revived again in new a new
paradigm shift.

1
Brian H Bix, Jurisprudence: Theory and Context, London: Sweet & Maxwell, 2009, p. 68

2
2.0 REASONS FOR REJECTION OF NATURAL LAW IN 19TH CENTURY
The 19th Century marked with progress in science and technology. New philosophy as a result of
enlightenment project in 18th Century started to gain momentum. Materialism philosophy which
were taken to its logical conclusion by the Karl Marx was influential. In this epoch, a German
Philosopher, Hegel inspired a lot of young thinkers in this generation who started to see reality in
terms of dialect movement. Many new fields started to emerge, for instance, Charles Darwin by
this time had published his Magnus Opous entitled origin of species which geared
anthropological studies. Also, Auguste Comte a French Philosopher emphasized positivism as
new philosophy of solving social problems. Those who sought an understanding of the
relationship between self and reality, the individual and society, discovered laws of social order
which had the same inevitability as the laws of nature, but they did not seek these laws in Natural
law.2

2.1 Emergence of Capitalistic economy

In the 19th Century, the economic liberation was at the peak. Right of property includes naturally
freedom of contract. Freedom of contract was at this time held in such reverence that it prevented
any slight limitation on the operation of market.3 The state had no business to interfere in
relationship of master and work men, anymore than in any other form of private contract. This
position was reinforced economic theory of the time, going back to Adam Smith and his book
entitled Wealth of Nations which saw the unimpeded operation of Market forces, not only in
international trade but in economic relation too, as likely in the long run to the best promote
economic growth and thus the happiest overall result. 4

In this Era, the capitalists knew that natural law could not be their legal theory simply because it
was neither useful not reliable. For this reasons, capitalists needed certainty in the trade affairs.
Thus, the emergence of contractual obligation, the rules of commerce ought to have been clear,
exact and known by everyone. Unfortunately, natural law of the time could not guarantee that
thus nature of the economy played a great role in rejection of Natural law.

In addition, Karl Marx argued that substructure which are material conditions comprises of
forces and relation of production determine the superstructure which include law, nature of
2
Freeman, M., Introduction to Jurisprudence, London: Sweet & Maxwell, 2008, p. 177.
3
Ibid., p.306
4
ibid

3
justice, state just to name a few.5 In the same way, it can be argued that the economy of the 19th
Century which was capitalistic in nature influenced the conception of law which led to the legal
positivism, hence rejection of natural law. In 19 th Century, the industrial revolution merchandised
Europe, created the economy of capital and labor. These factors created enormous increase in a
number of institution which law grew rapidly to accommodate them. 6 For instance, Britain which
led the world in industrialization and shocked the world by her wealth, the traces can be seen in
the earliest Factory Acts of the 1800s and in the relaxation of the laws against combination of
workmen by the Combination Act of 1825.7

2.2 Indeterminacy of common law in 19th Century

The common law in the 19th century was considered as expression of immemorial custom and
long standing practice which embodied natural reason.8 Bentham regarded this as dangerous
fallacies, appeal to the law of nature were nothing more than private opinion in disguise. 9 In this,
Jeremy Bentham sought to subject common law to cold light reason, he pointed out
inconsistency and confusion of the draconian criminal law with its disproportionate sanctions,
including capital punishment. Also, legal jargon and the intricacy of writ system were some of
the features of common law.10 Bentham fiercely attack of common law extended to the language
of lawyers as foreign to lay men, thus multiply lawyer’s fee. The rules of evidence were
ambiguous, complex and irrational. This critique of Bentham inspired major legislative reforms
of English Law of Evidence of 1843, 1851, 1898.

The law was puzzling network of technical rules created by the lawyers which served their
purpose and interests.11 Most people were poor and ignorant to derive any benefit from the
process which purported to be fair and rational. The role of precedent was mocked by Bentham
as Dog Law.12 He regarded the doctrine of precedent as pretence of immemorial customs laid by

5
Hernecker, M., Elementary Concepts of Historical Materialism: Base and Superstructure, [Online] Available at:
https://www.marxists.org/history/erol/periodicals/theoretical-review/tr-12-1.pdf
6
Kelly, J., Op. Cit., p. 306.
7
ibid
8
Wacks, R., Understanding Jurisprudence: An Introduction to Legal Theory, Oxford: Oxford University Press,
2012, p. 61.
9
ibid
10
ibid
11
ibid
12
ibid

4
incomprehensible web of unjust law. He further articulated that superstitious respect of the
ancient customs ensure that the senseless decision of the past are repeated in the future.13

Furthermore, the doctrine of stare decisis produces greater rather than less arbitrariness.14 This is
because despite rigidity to avoid following a precedent judge resort to legal fiction of equity,
natural law which render law uncertain. 15 The judge is at liberty either to observe it or depart
from it.16 The doctrine defeated its own purpose. Indeterminacy of common law was clear.
Unwritten law was basically vague and uncertain. It cannot, Bentham argue, provide a reliable,
public standard which can reasonably be expected to guide behavior. In this, Bentham advocated
for positivistic conception of law which basically is purposive or functional one based on the
principle of utility.17 The common law was contrary to positivistic conception because it could
not express rules with clarity and exactness for reason that its very validity was in suspect. 18
Therefore, the natural law legal theory which permeated common law was rejected on this base.

2.3 Codification
The most achievement in this field was a French Code Civil, planned since before the end of 18 th
Century and coming into force in 1804.19 This Code won world-wide admiration and was an
important influence in drafting the later code of Belgium and Holland, Italy, Spain. 20 Moreover,
the spirit and the historical circumstances in which it had been conceived had important effect in
19th Century’s conception of law which was positivist one, seeing essential and only authentic
form of law in legislation in law laid down, ius positum, whence positivism.21 The leading idea of
French codifier had been excluded uncertainty and arbitrariness in the administration of law, and
for that purpose they wished to reduce possible interpretation and creative function of judge
which they distrusted.22 The judge was to be no more than a machine intelligently applying a
body of clear and stable rules.23

13
ibid
14
ibid
15
ibid
16
ibid
17
ibid
18
ibid
19
Kelly, J., Op. Cit., p. 312.
20
Ibid., p. 313
21
Kelly, J., Op. Cit., p. 313
22
ibid
23
Wacks, R., Understanding Jurisprudence: An Introduction to Legal Theory, Op. Cit., p. 62.

5
In England there was no codification or any other external development which could point out as
explaining the positivist. However, Bentham formulation of law as sovereign was taken up and
build into system by his disciple John Austin who published a book entitled Jurisprudence
Determined in 1832.24 This account of law as command came to dominate England and
commonwealth countries till the end of 19th Century.25

2.4 Rise of Sovereign National States

In this Century, the problem of the nature and proper function of the law had to be rethought
from scratch.26 Many thinkers of this era started to view reality in a profound different way. For
instance, Jeremy Bentham attacked the social contract theory of 18 th Century and discredited
along with natural law and natural rights as fictitious and false. This was the most significant
political development took place in England, Germany and France because for jurists like
Bentham and Austin sovereignty is a matter of social fact of the habit of obedience. For Austin,
sovereignty has two dimensions, that sovereign is habitually obeyed but also, sovereign does not
obey any sovereign. Based on this, a sovereign can neither bind itself nor obey another
sovereign, thus, where there is no law, there is no sovereign, where there is no sovereign there is
no law. Furthermore, Hegel proposed the doctrine of the will of the State. This he meant, the
individual was subordinate to the state because it enshrined the wills of all citizens and had
evolved into a higher will and on the external scene the state was sovereign and supreme.27

Shaw in his book entitled International Law asserts that by the 19th Century nationalism and
democracy spurred by the wars of the French Revolution and empire, spread thought the
continent, thus new sovereign states were created. 28 Rise of sovereign states reached its pinnacle
in the unification of Germany and Italy. In Germany under Bismarck, there emerged working on
romantic nationalism age, a united Germany empire led by expansionists and militarists Prussian
Kingdom. In Italy the revolutionary soldier Garibaldi, the agitator Mazzini managed to put
together a national unitary kingdom. Other states were created like Belgian state in 1831.29

24
ibid
25
ibid
26
Kelly, J., A Short History of Western Legal Theory, Oxford: Oxford University Press, 2015, p. 301.
27
Ibid., p.29.
28
Shaw, M., International Law, Cambridge: Cambridge University Press, 2013, p. 28.
29
Kelly, J., Op. Cit., p. 306.

6
Rise of sovereign State geared the rejection of natural law in 19 th century because positivism
regarded sovereign as absolute. Consequently, Sovereign States limit the application of higher
law. Importantly, at this stage positivism was a dominant legal theory which consequently led to
the proliferation of the powers of states and increasing sophistication of municipal legislations.

2.5 Development in Social sciences

Hans Kelsen argued that the changeover of legal science from natural law to positivism went
hand in hand with progress of empirical method of natural science and with critical analysis of
legal theory.30 For this reason, no law was assumed to contain absolute or universal value. The
19th Century observed profound development in social sciences and the Impact of Darwin’s
evolutionary hypothesis affected conception of legal theory. 31 The new emerging science were
economics, anthropology and sociology which opened up by the French and British writers in the
preceding age. The scientific age advocated by the Comte removed the traditions chains. Jurists
set before themselves greater use of induction which contributed to further erosion of the natural
law.

Auguste Comte was the inventor of sociology. He was impressed by development of physical
sciences of 17th Century and by social transformation brought about by industrial revolution. 32
Importantly, Comte was writing at time when evolutionary biology was gaining momentum in
Europe. Comte argued that society developed and changed in response to certain laws. For him
to understand society, no ideology, no transcendental law could contribute anything but only the
observation of empirical facts.33 This belief of exclusive facts Comte called positivism. The
English philosopher Herbert Spencer who advocated for variety of social Darwinism took the
same approach. He asserted that human being by inherited mechanism succeeded to the sum of
earlier generations’ experience in the matter adapting to the requirement of living in society, and
acquired from generation to generation a deep sense of social duty. 34 For him, there was hidden
engine of continuous irreversible improvement at work, to which legal and social could be left.35

30
Zimmerman, A., “Evolutionary Legal Theories-The Impact of Darwinism on Western Conception of Law,”[In]
Journal of Creation, Vol. 24. 2., 2010, p. 106.
31
Ghormade, V., Lectures on Jurisprudence & Legal Theory, Pune: Hind Law Publications, 2014, p. 81.
32
ibid
33
Stromholm, S., A short History of Legal Thinking in the West, Lund: Fred B Rothman & Co, 1986, p. 45.
34
Kelly, J., Op. Cit., p. 306.
35
ibid

7
Therefore, the relevancy of Comte and Spencer to the downfall of natural law lies in the vision of
law’s ultimate possession through the perfection of society achieved by a science based
manipulation and natural evolutionary process.36 However, in Germany a different German
Lawyer, Rudolf Von Jhering which his view was that law must was now the idea of legal science
must address itself in social relations, and to the social purpose which underlay every rule.37

2.6 Rise of legal positivism

The word positivism etymologically derives from the Latin word, Positum which refers to the
law that is already laid down or posited.38 The idea associated with legal positivism constitutes
the resilient opposition to natural law thinking.39 Legal positivism especially analytical jurists
sought to discourage speculation about the nature and purpose of law and set out to limit the
province of jurisprudence to a technical analysis of the positive law laid down and enforced by
the State.40 Positivism is not an independent jurisprudential approach, be it logical positivism,
scientific, philosophical its main claim is that only genuine knowledge is scientific knowledge
which emerges from positive confirmation of theory by the application of rigid scientific
methods.41

In the 19th Century encountered so many problem consequently, positivism reached at the highest
stage of development. Legal positivism could satisfy demand of justice and economy. In 1832,
John Austin published a book entitled The Province of Jurisprudence Determined which came to
dominate the teaching of jurisprudence in England and the rest of the Commonwealth countries.
Austin wrote the matter of jurisprudence is a positive law. He further said the law simply and
strictly so called are set by the political superior to political inferior.42 This is a revolutionary
understanding of Law which washed a way Natural law in the 19th Century.

By this time, law came to be understood as those laws set by man to man and these laws are set
by virtue of political superior compose the appropriate matter of jurisprudence. For this reason,
law was comprehended as a command backed with a threatened sanction. This understanding of

36
ibid
37
ibid
38
Wacks, R., Philosophy of law: A Very Short Introduction, Oxford: Oxford University Press of Oxford, 2006, p. 18.
39
Ibid., p. 9.
40
Ibid., p. 22.
41
Ibid., p. 24.
42
Kelly, J., Op. Cit., p. 321.

8
law of 19th Century automatically ruled out several items, which conventionally labeled law
because they do not fit the specification of law as Austin expounded. 43 For this reasons, it can be
inferred that laws of nature, laws of God, law of morality were only law metaphorically and
Austin was glad to see the end of muddle going back to Aristotle. Positivist theory dominated
this century, the proliferation of the powers of state and increase of municipal legislation gave
rise to the idea of law as command issuing from sovereign person.

2.7 The influence of Utilitarianism

Jeremy Bentham his long advocacy of reforming the existed law in spirit of utility had a
revolutionary effect even in his lifetime and continued to influence law long after his death. 44
Jeremy Bentham advocated for virtue in term of utility. Lord Brougham asserted that Bentham
is the father of the most important of all branches of reform, no one like him as ever before dare
to expose the deficits of English system of jurisprudence. Bentham and his followers never
insisted neither on doctrine of precedent no entrenched interests and privilege ought to stand in
the way of reform against utility principle.45

Essentially this rested on the philosophic premise of the greatest happiness for the greatest
number. Utilitarianism can be traced way back from the Greek Epicureans who believed that
pleasure was the only intrinsic good.46 For Bentham, the principle of subject human being to the
two sovereign masters.47 These are pain and pleasure. His conception of law as command of a
sovereign . Bentham rejected natural law as nothing but a phrase, its claim of authority based on
transcendental nature were nonsense.48 In the 19th Century John Stuart Mill on his Magnus Opus
entitled On Liberty said that criminal law had no right to punish acts merely because they were
acts which society disapproved of or wished to repress. The only act which State could legislate
only those which cause harm to others.49

43
ibid
44
Kelly, J., Op. Cit., p. 313.
45
ibid
46
Sinnott-Armstrong, Walter, "Consequentialism", The Stanford Encyclopedia of Philosophy (Winter 2015 Edition),
Edward N. Zalta (ed.), URL = https://plato.stanford.edu/archives/win2015/entries/consequentialism/
47
ibid
48
Pattaro. E & Roversi C., (Eds) A Treaties of Legal Theory and General Jurisprudence , Volume 12: Legal Philosophy
in Twentieth Century: The Civil Law World, 2015, p. 9.
49
ibid

9
3.0 REASONS FOR REVIVAL OF NATURAL LAW IN THE 20TH CENTURY
After the predominance of legal positivism in the whole of 19th century, legal positivism became
more inhumane and crude. On top of that, world experienced disastrous consequence of Second
World War. The war presented to the jurists moral challenge which legal positivism could not
solve. In this, 20th century manifested the inherent shortcoming of positivism a legal theory and
in other had realized the effectiveness of natural law. This led to the revival of natural law. Of
course, revival of natural was a result of many reasons as follows.

3.1 Growing Dissatisfaction of Legal Positivism

Revival of Natural law was a reality brought about by discontentment of legal positivism, which
had pursued the objective, rigorously separating out the legal sphere, unduly neglecting moral
ideals and the social bases of law.50 The reaction that 19th Century exaggerated the importance of
positive law. Thus, it was realized that abstract thinking or prior assumptions were not
completely futile.51 The positivistic approach failed to resolve problems created by the new
social and political conditions. The material progress and its impact on society provoked
philosophers to look for some values and standards.52

The world was shattered by the Second World War which shocked the human conscience.
Science began to become doubtful about itself and the certainty of scientific facts. 53 The young
generation rebelled and turned hostile against the self-satisfaction of bourgeoisie, money worship
and modern life. Social reformers attacked inequalities in society. Jurists began to feel that law
was not simply a matter of applying statutes or precedent to any given case or situation by means
of pure logic. Because of the unresolved and existed problems of the time required an approach
higher than the positive law. Therefore, idealistic philosophy revived and there was quest for the
ideal of justice which resulted the revival of natural justice. As Justice Oliver Wendell Holmes
said that Earlier Century of there was a reaction against positivism as Justice said that “there is,
in all men a demand for the superlative….It seems to me that this demand is at the bottom of the
philosophers’ effort to prove that truth is absolute and of the jurists search for criteria of
universal validity which collects under the head of natural law.”54
50
Ibid., p.6.
51
Mahajan, V., Jurisprudence & Legal Theory, Lalbagh: Eastern Book Company, 2001, p.714.
52
Ibid., p. 715
53
Ibid., p.715
54
Pattaro. E & Roversi C., (Eds), Op. Cit., p. 9.

10
3.2 Impact of Nuremberg Trial
These were series of trials held in Nuremberg which tried the former leaders of Nazi regime for
war crimes committed during World War II. Positive law was a default legal theory of the day.
The prosecutors at Nuremberg trial could not fault the actions of Nazi leaders since there were
following legitimately enacted laws of the State.55 Therefore, to be successful they had to appeal
to natural law. Decision of Nuremberg Trial resulted in the birth of the Nuremberg Principles,
which basically impose an obligation upon individuals who disobey laws which were clearly
recognizable as violating higher moral principles. Thus, judgment never referred directly to
natural law but in essence it was a deciding factor.56

Nuremberg trial undoubtedly compelled people to reconsider the possibility that natural law
could be effective in cases of contempt for human dignity. There was wider conviction that Nazi
war criminal had to be brought to justice though there was a disagreement about the justification
for the punishment. As Hans Kelsen put it that justice requires the punishment of these men,
instead of the fact that under positive law they were not punishable at the time they performed
the acts which made punishable with retroactive force.57

This brought natural law back into play as Cathrein had previously contended that it is
impossible to justify international law if there is no natural law. During the 20 th century the
application of principle “nullum Crimen Sine Lege” which prohibit retroactivity in criminal law-
would made the punishment of Nazi war criminal illegal though not unjust. Thus, the attempt of
legal positivism proved unsatisfactory because the law held by legal positivism centered on the
command of sovereign, was incapable of adequately accounting for international law.

The Charter of the International Military Tribunal contained an affirmation of the principle of
individual criminal responsibility for the most serious violation of international law even when
people acted out of obedience to highest order. This is important in history of natural law in the
second half of the 20th Century as it put to an end the state’s absolute sovereignty and provided a
legal recognition of morality and conscience.

55
Ibid., p. 39.
56
Mirabella, D., “Death and Resurrection of Natural Law,” The Western Australian Jurists, Vol. 1.1, 2002, p. 257.
57
Kelsen, H., “Will the Judgment in the Nuremberg Trial Constitute a Precedent”[In] International Law Quarterly,
Vol.1.2., 1947, p. 165

11
3.3 Post War Human Rights Phenomena or Recognition
After the Second World War there was a desire to establish a new world order governed by the
International Law. The UN charter drew heavily from natural principles in entrenching its
objective set of natural fundamental rights that would apply across all nations irrespective
positive law. These basic principles of Human rights, while mentioned in the preamble and
Article 1 of the UN charter were actually listed in the Universal Declaration of Human Rights, 58
declaration of Delhi on the Rule of Law of 1959. This document inspired the invention of many
numerous declaration and other human rights treaties around the globe. For instance, European
Convention of Human Rights of 1950, African Charter on Human and Peoples’ rights of 1981,
just to name a few. Importantly, these rights were not meant to act as a higher law that would
invalidate state laws rather as a benchmark which national states measure their positive state
laws against.

After the Second World War western liberal states made transformation by generalization of
constitutionalism, parliamentary democracy and the rule of law. The outrages crimes committed
in 1930s-1940s in the name of the state against elementary human rights reached unprecedented
level of paroxysm. Thus there was significant movement took place toward strengthening the
institutional safeguard against the abuse of authority. For instance, the new constitutions of
which formed the basis of the Italian Republic of 1946 and the Germany Federal Republic of
1949 contained clearly protection of fundamental freedoms.

3.4 Rise of Neo-Kantianism natural law

In the 20th Century witnessed the revival of Natural Law, by new Kantian Scholarship. This new
brand of natural law was founded on Epistemology and categorical imperative ethics of
Immanuel Kant. This movement emerged because of inadequacy of value-less legal positivism.
This is why neo Kantian calls a return to just law based on immutable values. 59 New Kantian had
to reaffirm the belief in the objective value of science. Neo Kantian called for modification of
natural law so as to meet the circumstances of the time. Among of the philosophers are
Stammler, Radbruch and Del Vecchio.

58
1948
59
Curzon,L., Lectures notes on Jurisprudence, London: Cavendish Publishing Ltd, 1998, p. 47.

12
Stammler developed the idea of natural law with variable content. In its principles are relativist
and evolving, a formal construct with no particular content.60 Del Vecchio’s theory placed the
autonomy of individual at the center of his theory of justice. For him the main business of the
state is to maximize human being capacity for free development and protection of rights.
Therefore, a State which act incompatible with this purpose lack justification for its existence.
For Del Vecchio such state is a mere delinquent state. The maximizing of human being capacity
for free development and the protection of rights which naturally belong to him because entailed
by this end.

Also, Gustav Radbruch was also until the horrific experience of Nazi regime was a positivist
jurist. In 1947, Radbruch condemned legal positivism for its failure to prevent the evils of
Nazism and made a claim that the idea of law can be nothing apart from achieving justice which
is an absolute value just like beauty and truth are. Therefore, the emergence of the neo Kantian
was among of reasons for revival of natural law in 20th Century.

3.5 Neo Thomism or Renewal of Catholic Natural Law

Revival of Natural law came along from long tradition of the Catholic Church. Its rebirth can be
supported by the rebirth of Thomism supported by Pope Leo XIII’s Encyclical Letter Aeterni
Patris which sought to restore the Christian philosophy in the spirit of the Angelic Doctor Saint
Thomas Aquinas.61 In the 19th Century natural law disappeared from every school of thought not
directly influenced by the Catholic Church which in 1879 had declared the teaching of St.
Thomas Aquinas to be its own official teaching. In the 20 th Natural law continued to flourish in
Catholics environment. Outside the Catholic world, the idea of a transcendental natural was
dismissive. This was overwhelmingly catholic environment, the influence of catholic church and
the catholic upbringing and conviction of many legislature and judiciary. A remarkable
declaration of natural law in fully Thomistic sense was made in the 1934 by the Chief Justice
Hugh Kennedy in his dissenting judgment in the State (Ryan) v. Lennon. In this case Chief
Justice held that amending the act to be invalid for the reason that if the legislation were
repugnant to the natural law, such legislation would ne necessarily unconstitutional and invalid
and it would be, therefore, absolutely null and void and inoperative.

60
ibid
61
Pattaro. E & Roversi C., (Eds), Op. Cit., p. 12.

13
A Jesuit Scholar by the name of Victor Cathreine contended that without a natural legal order,
positive law could never be deemed unjust there could be no intrinsic unjust actions,
international law would be impossible. Natural law in the 20 th Century is best represented by the
Philosopher Jacque Maritain who revived the doctrine of saint Thomas Aquinas and their
application to the modern world. Maritain was influential in development of and drafting of the
Universal Declaration of Human Rights. Maritain contended that natural law is unwritten but
imminent in nature. Since nature has a teleological character one can examine what a thing
should do by examining its end.62 Therefore revival of Thomistic philosophy laid a ground for
natural law to emerge in the history of legal theories.

4.0 CONCLUSION
As elucidated above, rejection of natural law was geared by many factors like socio-economic
and political issues of the 19th century. Abandonment of natural in 19th was inevitable phenomena
given material condition and productive forces which influenced its rejection as Marxists would
coined it. Surprisingly, in 20th Century natural law rose in trump from its hibernation in 19 th
century. Catastrophic experience of the World War Two which took lives of millions of innocent
civilians revived natural law.

62
Maritain, J., Man and the State, Washington, D.C: The Catholic University of America Press, 1998, p. 78.

14
 REFERENCES

Books

Curzon,L., Lectures notes on Jurisprudence, London: Cavendish Publishing Ltd, 1998.

Freeman, M., Introduction to Jurisprudence, London: Sweet & Maxwell, 2008.

Ghormade, V., Lectures on Jurisprudence &Legal Theory, Pune: Hind Law Publications, 2014.

Kelly, J., A Short History of Western Legal Theory, Oxford: Oxford University Press, 2015.

Mahajan, V., Jurisprudence & Legal Theory, Lalbagh: Eastern Book Company, 2001.

Maritain, J., Man and the State, Washington, D.C: The Catholic University of America Press,
1998.

Shaw, M., International Law, Cambridge: Cambridge University Press, 2013.

Stromholm, S., A short History of Legal Thinking in the West, Lund: Fred B Rothman & Co,
1986.

Ttaro. E & Roversi C., (Eds) A Treaties of Legal Theory and General Jurisprudence , Volume
12: Legal Philosophy in Twentieth Century: The Civil Law World, 2015.

Wacks, R., Understanding Jurisprudence: An Introduction to Legal Theory, Oxford: Oxford

University Press, 2012.

Periodicals

Journals

Kelsen, H., “Will the Judgment in the Nuremberg Trial Constitute a Precedent”[In]
International Law Quarterly, Vol.1.2., 1947.

Mirabella, D., “Death and Resurrection of Natural Law,” The Western Australian Jurists, Vol.
1.1, 2002.

Zimmerman, A., “Evolutionary Legal Theories-The Impact of Darwinism on Western

Conception of Law,” Journal of Creation, Vol. 24. 2., 2010.

15
E-Sources

Hernecker, M., Elementary Concepts of Historical Materialism: Base and Superstructure,

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