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The Evolution of Theory of LawThe ecclasticalism paved way to the secularists when Marsiglio distinguished between kinds of law. He said divine law was a direct command of God without human deliberations about voluntary acts of human beings to be done or avoided in this world. To him human law was a command of whole body of citizens or its prevailing part. Marsiglio believed that law was essentially a judgement as to what is just and advantageous to the community. To Dante empire was based on ‘law and services”. It was not the person but the office that mattered .To him the empire was law personified, law thrown, and crowned and invested in the majesty and honor”. In the Middle ages came the growth of the concept of law of nature as St. Paul has mentioned it. Earlier the Stoics had given its full definition. In 17th century Augo Grotius gave his classification of laws. To him Jus natural was primarily the dictates of human reason rather than of divine will and divine revelation. To him the concept of right and justice was embedded “in the essential universal and unchangeable quality of human nature”. Gratious distinguished Jus Natural to be of two kinds: i.) Pure law of nature representing primitive state of nature prior to the formation of political society and (ii) law of nature after the formation of political society but prior to civil law. Grotius believed that criteria for the recognition of the law of nature were conscience of a normal individual and general agreement amongst best minds along with the practices of most civilized nations. This Jus Natural could be but common dictates of conscience. Yet as against it there was Jus Voluntarium that in turn was subordinated into jus divinum or law of God. Jus civil or law of state and Jus Gentium The Jus Gentium was Roman Law related to foreigners but to Grotius it was the law governing the intercourse between nations. In this background the theory on law in the 17the century became involved with the concept of supremacy of law as the petition of rights contained the idea written by chief justice of England Justice Cole. And when the era of Hobbes arrived many illusions were straightened on natural rights and natural law. He distinguished Jus Natural from Lex Natural as to him natural right was not a moral right but a capacity or power of holding things and was to be equated with might. Natural Law designates rule found out by reason out by reason forbidding any act or commission of act that is unfavorable for be preserved. To him law proper had command over other laws i.e. law of nature, civilian and Divine law. Hence he termed law as made by sovereign who himself was above laws. |
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