ON NATURAL LAW
Ajit Chaudhuri – January
2014
Does a man have
the right to beat his wife? A group of women panchayat representatives and a delegation of visiting (male) Afghan
district assembly members discussed the question at a meeting in Rajasthan, and
there was unanimity in the opinion that a) a man did and b) under certain
conditions, it was also perfectly OK to do so – because this complied with
natural laws. Well, not quite unanimity! The interpreter at this discussion, who
happened to be me, suggested that Indian law did not recognize this so-called
right. I was shushed with a pointed reminder of my mandate to translate and not
interfere.
This is not the
first time that I have come across natural laws being evoked as a justification
for the obnoxious; khap panchayats do
so regularly when they issue fatwas
against young lovers from the same sub-caste, as did feudal lords demanding the
first night with the bride in all weddings in their fiefdoms (I’m not making
this up – the practise was prevalent, for example, in Khurki block, Garwha
district, Jharkhand, until the naxalites took control of this area). The Indian
Supreme Court too did so recently while making gay sex illegal.
What are natural
laws, and where did they come from? The early thinking on natural laws was that they came from
one of two sources – they were either coined in heaven, or they were based upon
the adage that ‘might is right’.
The religious
approach suggested that certain practices were acceptable or not ultimately
because God had ordained them so. Needless to add, different religions had
different conceptions of natural laws, and therefore different principles for
deciding on matters of right and wrong in society. It followed that people of
one faith, because of their specific natural laws, had no obligation to treat
people of others in a morally correct way – a belief that enabled and justified
terrible acts by ‘good’ people. Many terrorists, for example, are religious types
who justify their acts under natural laws, just as many ordinary, honest, tax
paying, and church-going citizens of Nazi Germany were comfortable with the
regime’s treatment of Jewish, Slavic and gypsy communities. This line of
thinking was also convenient for Europeans during their early encounters with
indigenous populations in the Americas and Asia.
The ‘might is
right’ argument saw natural laws as the outcome of acts of will by the powerful
over the weak that brought about equilibrium in the social, economic and
political food chains of life. The meek, under this approach, may not inherit
the earth as the Bible suggests, but principles of obedience and obsequiousness
to those above them in pecking orders enables survival.
This leads to the
question – why should we observe such laws? If I am inclined towards having sex
with someone of my own gender, should I not do so because my religion forbids
it under the ‘natural laws’ doctrine? If someone bigger than me wants me, do I
have to turn around and spread as ordained in the ‘might is right’ argument?
This, apparently, is among philosophy’s most enduring problems. As all parents
know, ‘do it because God says so’ and ‘do it because I will otherwise kick your
butt/curtail your outings/cut your pocket money’ does not make the most
compelling basis for the actions of children and, at least in my case,
invariably results in a raised middle finger waived in my face (though, I must
admit, they don’t dare try the latter with their mother).
I would like, at
this stage, to introduce to you a 17th century Dutch philosopher
called Hugo Grotius – a remarkable man who led an interesting life; he was,
inter alia, a leading politician, a prison escapee, a refugee and a shipwreck
survivor, doing all this while maintaining a wife and seven children. As the
Governor of Rotterdam in 1613, he led a Dutch delegation to secure the freedom
of two ships seized by an English fleet in the seas near Greenland on the
grounds of trespassing. Grotius’s arguments eventually came to form an integral
component of today’s international law of the sea; at that time, however, the
English were considerably more powerful than the Dutch and they neither
returned the cargo nor conceded the legal points. He also wrote two classics of
which the first, “On the Law of War and Peace” discusses the causes of war, the
origins of property rights, and the case for state formation.
Grotius also
managed to rescue the concept of natural law from the tyranny of religion and
power. He suggested that the source of natural laws is human nature’s desire
for peace and order, which manifests itself in two essential properties – the
desire for self-preservation, and the need for society. Two things are
therefore imperative for a person’s successful existence; one, s/he should engage
in the reasonable pursuit of self-interest, and two, s/he should abstain from
taking what belongs to others. He added two more principles – that, three, evil
deeds must be corrected and four, good deeds must be recompensed. Grotius
proceeds to build up laws governing both individual behaviour and the conduct
of nations from these four tenets.
To return to the
original question on the right, under natural laws, of people to do obnoxious
things, I argue that it depends upon the basis for the existence of natural
laws under which the justification is made. The system of patriarchy, which would
be considered natural law in most religious and all power doctrines, does
provide justification for wife-beating under certain and all conditions
respectively – and therefore the women panchayat
representatives and Afghan delegates may not have been wrong to shush me up.
But the same under Grotius’s rationalization, and under most liberal legal
doctrines, is a despicable act of bullying that has no basis in any natural law.
Confusing? I have
a simpler explanation of natural laws from a rather more modern philosopher, my
13-year-old son. “Anything that has a basis in nature, and is therefore not
questioned in any society or culture, is a natural law,” he told me, “like
parents taking care of their children.” Not entirely coincidentally, the little
squirt was negotiating a raise in his monthly allowance at that time.
