Friday, January 24, 2014

ON NATURAL LAW


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.

7 comments:

Ajit Chaudhuri said...

Thank you for sharing and once again instigating my mind to travel the bewilderment ( which
i love the most ). I am trying to give a shape to my thoughts (generated during my journey
through your blog.) Hope I am not creating any inconvenience.

I appreciate your thought on natural laws. It was really interesting for me because till now I
had conceptualised natural laws in terms of laws of gravity or laws of friction, laws of motion
or Darwin's law of natural selection. However, your explanation of natural laws has really
helped me to redefine some of my doubts regarding human behavior and relationships.
Especially you mentioned about Grotius and his postulates regarding natural laws. This is
quite logical. However, it generates a question in my mind, " how can evil deeds be
corrected and good deeds be recompensed" and then there is this second question, "
won't it be a better practice to prevent the evil deeds rather than to correct it ?" This whole
idea of prevention, when I try to analyse, leads me towards the prescription of threat and I
guess ( as I am not sure of the origin) the best you to present this thing ( or you can say
brand this thing ) is in the name of religion or god.

This is really a more suitable practice as it
could generate least reactance or no reactance among a larger section of the public. Now
coming to the second part of the issue, how to execute the corrective or the re-
compensating measures , my thought drifts towards the power dynamics . I imagine in a
society of equals practice of re compensation or correction would generate more conflicts
than solving the problem in hand. These two things are possible in a society with differential
power provisions. Thus I think this whole idea of re compensation and correction naturally
leads a society towards a power inequality and as you have stated that human beings aim
( naturally ) for self preservation the power inequality is defended in the society.

Thus the so called natural law, as evident from the examples cited in your article to raise
questions over the authenticity of this practice, as a natural outcome of this process of
recompensation and correction with a missing link although. And this missing link is, "
refraining yourself from taking what belongs to others" . If permitted I would like to define it
as a process of having respect for each other. In my opinion those who are on the negative
side of the natural law ( the so called oppressed ) have forgotten this tenet where as those
on the positive side of the natural law ( the so called oppressor) have realized that there
are people who can be made to forget this tenet and hence can be exploited.

Thus I guess the only natural law which we human being remember is the law of self
preservation and thus all our attempts are targeted at self first initiative which leads to all
sort of artificial laws.

Guess my bewilderment has caused no inconvenience for you.

Regards,
Nilamadhab Mohanty

Ajit Chaudhuri said...

And the point that you are making is....?

R. Vijaynidhi

Ajit Chaudhuri said...

Dear Ajit,

Interesting subject - what to call natural and what unnatural! Something that can be everlastingly manipulated by 'man' (men or women) to justify their vested interests. I still think in the real world 'Might is right' often tends to become the natural law. It is interesting and a little bizarre on how the entire world hinges on subjective opinions and perceptions. And yes, the recent verdict on section -377 totally proves this.

....and very rarely do we come upon solutions or laws that have a hint of integral intelligence, something that truly feels correct and liberating for all!

(according to my young cousin everything in the world is subjective and there are no absolute truths, i didn't quite agree). He says - I may be speaking the truth but I did not argue well and that it did not always matter if one was right or wrong but on how well one argued and articulated his or her view :-).

Vibha Chhabra

Ajit Chaudhuri said...

Good. As usual I learn something new, always, from your musings....even though I may not completely understand them or agree with them ....

Amitabh Kharkwal

Ajit Chaudhuri said...

Thanks for sharing this, Ajit. Nice reading and knowing in brief about the idea of natural law.

Satyen Mishra

Nidhi Bansal said...
This comment has been removed by the author.
Nidhi Bansal said...

In my opinion, defining unjust inhuman behavior can not be justified under any law. It is just a scapegoat to run away from your own responsibilities. Pedagogy of oppressed by Paulo Freier has nicely explained the existence of such power systems, relationship of oppressed and oppressor and on how to work around these power structures.