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 17^th 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.