Spencer and evolutionary theory of law

S Debabrata Reddy, Student of Law, VIT LAW School, Chennai

Herbert Spencer (1820-1903) was an English philosopher and sociologist who became the author of a theory of law, justice, and society strongly influenced by Charles Darwin’s Origin of Species. Generally, the concept of evolution was first introduced by Jean Baptiste Lamarck and Charles Darwin. Lamarck coined the term “invertebrates” and believes in his “theory of inheritance of acquired characteristics”. His example was that of “giraffe’s neck”, ((Lamarck’s theory of inheritance to acquired characteristics, NCERT Biology XII))in ancient times giraffe used to have a small neck and it used to eat leaves from tall trees and due to this its neck got stretched and it became longer and later on it became a permanent trait in giraffes. Charles Darwin’s concept was the “theory of natural selection” in which he lays down his stress on “survival of fittest”. Survival of fittest is that animals which are best adapted to the present environmental conditions only survive. For example “dinosaur” it couldn’t adapt itself to the environmental conditions and as a result of which it got extinct ((Theory of Natural Selection – origin of species)).

Spencer’s evolutionary theory of law speaks about a society that existed before and a society that exists now. He considers civilization and law as products of biological, organic evolution, with struggle for existence, natural selection, and survival of fittest as its principal determining factors. To him evolution revealed itself in differentiation, individuation, and increasing division of labor. According to him, civilization was a gradual progress of social life from simple to more complex forms. He distinguishes development of civilization into two stages: primary or military form of society and a progressive society.

Primary society: –

  • It is a war-like society and compulsion is a force or method which is used and status is used as a regulatory device.
  • It is the current type, modern or industrial form of society with peace, freedom and contract as the controlling elements.

Progressive society: – Its development was marked by an increasing delimitation of the functions of the government in favor of individual liberty.

  • The function of the state is just to protect the human beings.
  • Government is confined only to enforcement of contracts.
  • Even if there is a clash between people, the government should not interfere rather it should guarantee mutual protection.
  • The state should not interfere in any social activity like public education, public communication, public hospitals, government operated- postal systems, poor laws, etc. i.e. social legislation ((Jurisprudence by Edgar Bodenheimer, sec.20, pg. 78)).
  • This concept can be correlated with Henry Maine’s status to contract theory ((See Henry Maine’s Doctrine)).

Spencer’s concept of justice was shaped by idea of liberty and is composed of two elements. One is the egoistic element and another one is altruistic element. Egoistic and altruistic doesn’t mean being self-centered or selfish and selfless but it is much different from what they actually mean. The egoistic element of justice means man derive the utmost benefit from nature and capabilities. It says one develops oneself if he is capable enough and is willing. The altruistic element of justice is conscious of the limits which the existence of other men having claims necessarily imposes upon the exercise of freedom i.e. if a person tries to develop then no one is to interfere in his works. Then the combination of both the elements give “equal freedom”, formulated by Spencer as follows: “every man is free to do that which he wills, provided that he doesn’t infringe the equal freedom of any other man”. This concept is a strong reminiscent of Kant’s definition of law.

This law of “equal freedom” clearly and unequivocally expressed a notion of justice adapted to a period of individualism and laissez faire. His strong individualism even prompted him to deny the attribute of right to social “rights”, which only the state could guarantee and implement such as the right to work and the right to public maintenance in case of indigence. He is even reluctant to recognize the “right to vote” as a political right of every citizen and says it is not a representation of individuals but representation of interests ((On Spencer see Friedmann, Legal Theory,5th edn.)).

Natural Law School in Medieval Period

Aravind P, Student of Law, VIT Law School

The word ‘Natural Law’ is well defined and can be understood with ease in the medieval philosophy. The doctrine of the philosophers of this period had laid a foundation for the understanding of many concepts like natural law, theology, human reason etc.

Some principles which we find in this philosophy can be seen influencing the present modifications and changes we make. It can be used as a defense for the change.

The legal philosophy of the middle ages was mainly based on the doctrines of the bible and the concept of the Greek and Roman school. It started with the philosophy of St. Augustine. He gave his philosophy in the 3rd century. But it was rejected by the authorities of that time. Then later when the authorities were fed up by the rule of Benedict and his philosophy, Augustinian principle was adopted.

The medieval philosophy was a mixture of both religious faith and philosophical understanding. God was considered supreme at that time. When the philosophy started, it mainly focused on the divine law but towards the later part of the medieval period the philosophers started thinking on Natural law revealed through the reason of man.

Towards the end of the medieval period, rationalism gained importance. The power of the word ‘reason’ overthrew the concept of theology and principles of the church. It also opened the door to the concept of Nationalism.


In jurisprudence, the term natural law means those rules and principles which are considered to have emanated from some supreme source, other than the political authority. Natural law is famously identified with the slogan ‘lexiniusta non estlex’ which means an unjust law is not a law. The Natural Law theory postulates that law consists of rules that are in accordance with reason ((Fitzgerald P.J. (Ed.), Salmond on Jurisprudence, 12th edn., Universal Law Publishing Co. Pvt. Ltd., (1966) p.15.)).

Friedmann says that the history of natural law is a tale of the search of mankind for the absolute justice and its failure. Thus, with respect to the political and social changes in the society, the forms and notions of natural law keep changing. It has contributed a lot to the legal system. The main contribution of the Natural law theory is its ideology of a universal order governing all men and inalienable rights of the individual ((Friedmann, Legal theory, 5th edn., Stevens and Sons, London, (1967) p.43-45)).

Blackstone highlights the universal presence of natural law. He says that the natural law being co-existent with mankind and emanating from God himself is superior to all other laws. It is binding over all the countries, at all the times and no manmade law would be valid if it is contrary to the law of nature ((Blackstone, Commentaries on the Laws of England, Introduction, Oxford Publications, (1765-1769) p 39)).

According to Cohen, Natural Law is not a body actual enacted or interpreted law enforced by courts; it is in fact a way of looking at things and a humanistic approach of judges and jurists ((Cohen and Cohen, Readings in Jurisprudence and legal philosophy, (1951) p.660)).

There is no proper definition for natural law. Some jurists and philosophers have given their own theory of natural law.

Natural law has no written codes. It is considered eternal. It not so binding because it is not enforced upon anyone. The Natural Law is a theory from which all major governing concepts are derived. Natural law was the origin of some branches of law and it still derives the validity from it.


During the decline of the Greek-Roman civilization, a common concept was followed in the world, the concept which was filled with the teachings of the Fathers of the Church. Every philosophy which was related to law including science and investigation had a taste of the principles which was put forth by the Church and its authorities. But the concepts believed by the philosophers of the Greek-Roman period did not fade away after the decline.

The teachings of the Greek and Roman schools were combined with the principles of the Church and were followed during this period. Historians mark this period from the decline of the Greek-Roman period to the rise of the renaissance period. The theological and philosophical concepts were attempted to be read in accordance with the human natural reason for better understanding of the Christian philosophy.

Towards the end of the middle ages, the word ‘reason’ gained significance. It was an evolution of new ideas in all the fields. This renaissance period made ‘reason’ the foundation stone for all the theories which was coming up in the later period.

One of the recurrent themes of medieval philosophy was the celebrated dispute about “universals”, which had as its subject matter the question as to the character of our general ideas and their relationship to the particular objects existing in reality. Two chief schools of thought with respect to the solution, although within these schools radical as well as moderate view points were advanced and attempts were sometimes made to bridge the gulf between the most extreme positions on each side ((Jurisprudence, Edgar Bodenheimer, (1962) p. 27)).

As mentioned earlier the medieval philosophy consisted of the concepts of theology. This philosophy threw the light on the evil theory and the free will theory. The philosophers of that time also focused on these theories in accordance with their own philosophical understanding.

The concept of Scholasticism was also followed, where the philosophers said that the natural human reason should be used with philosophy to understand the complicated Christian principles.


The middle age philosophy had some basic features which was the foundation stone for the theories which later came to the limelight.  The main features were as follows:


This concept meant that everything and anything that happens around the world is believed to be determined by God, who was considered supreme. It is the study of the religious faith or ideas. It is also the study of God and God’s relation to the world. This was the main the theory which was being followed during the earlier period. And then this theory was read in combination with the philosophical understanding of the jurists.


This concept meant that any problem, especially philosophical problems was studied in the context of God, because he was the ultimate concern. The people during that time were God-centric.


This concept dealt with the personality. God was considered as the absolute personality. God, who was the supreme power, was considered to be the role model for the creation of man.


This concept referred to the evil theory. Whoever contradicts to the theory of God, they were considered to be evil. That was the justice according to them.


This concept said that the people who stick to this concept would get a secret knowledge of the divine realm.


Saint Augustine (354-430 A.D.)

Saint Augustine was born in North Africa and lived as a citizen of the late Roman Empire. It was Augustine’s conviction that in a golden age of mankind, prior to man’s fall, an absolute ideal of the “law of nature” had been realized. Men lived in a state of holiness, innocence and justice; they were free and equal; slavery and other forms of Dominions of men over other men were unknown. All men enjoyed their possessions and goods in common and lived as true brothers under the guidance of reason. Not even death existed at that period ((Jurisprudence, Edgar Bodenheimer, (1962) p.22)). The state is justified only as a means of keeping peace on earth. It must defend the church, execute its commands, and preserve order among men by enforcing the worldly law (lex temporalis). ((Id., II, 468 ff))The worldly law, in Augustine’s opinion, must strive to fulfill the demands of the eternal law. Even if the worldly law attempts to comply with the postulates of the lex aeterna and to accomplish justice in the relations of men, it will never attain the perfection of the eternal law. His definition of natural law speaks of a “common possession of all” and of universal liberty, contemplates partly the supposed “absolute natural law” of mankind’s early period, since at the time when Isidore of Seville wrote, neither communism nor the equal liberty of all men were realized either in his country or in others ((Jurisprudence, Edgar Bodenheimer, (1962) p.23)).

His philosophy was adopted in the middle ages. He said that both religious faith and philosophical understanding should complement each other rather than contradicting. Like all philosophers of that period, he also believed God as the supreme power. He emphasized on free will theory.

He believed in Dualism, the theory of body and soul. He said that soul animates and directs the body.

Otto Von Gierke (1841-1921)

Gierke was a German lawyer. He, in his book Natural law and the Theory of Society 1500 to 1800, gave his views on the medieval law philosophy. He said that there were two main fundamental principles which was existing during that period.

The fundamental principles were:

  1. Unity derived from God, involving faith, one church and one empire.
  2. Supremacy of manmade and God-made law as a part of unity of universe ((Gierke Otto, Natural Law and the Theory of Society 1500 to 1800, The Law Book Exchange (1950).)).


The period of renaissance marks a general awakening and resurgence of new ideas in all the fields of knowledge. Rationalism became the creed of the age . In the field of commerce it created new classes in the society which wanted more protection from the state. Colonization caused rivalry among states and it gave birth to the conception of nationalism. This also resulted in strong conception that state must have full sovereign powers

The supremacy of positive law overthrew the dominance of church, and new theories were developed. Reason is the foundation stone of all these theories- secularized reason and not theological reason. Those theories proceed from the supposition that a social contract is the basis of society. With renaissance and the rise of humanism, the natural law became open to rational inquiry free from its former religious connotations ((Jurisprudence I, Garima Tiwary, LexisNexis publications, p.56)).


Towards the end of the 14th century the philosophers brought in the concept of ‘reason’. The theological theory was fading away. Human reason threw away the church principles. The theory of reason made the state to have the full supreme powers. The human reason led the way to the revival period where all the philosophers were focusing on the human reason.

So, this medieval philosophy was the basic foundation for the application of human natural reason and this gave the idea to many philosophers to bring on their theories of natural law in the later period.

This Medieval period was a significant period which pushed rational inquiry for the upcoming years.