The beginning of Western Political Philosophy starts with an important distinction between two aspects of the world – nature (physis) and convention (nomos). This was the conception of Classical Greek Philosophy which shaped how the field of political philosophy will evolve in the future. But why do we start with that distinction in the first place? Is there really a rigid distinction between nature and convention or there is an interdependent relationship between these two? To answer it, we will have to understand how Greeks understood nature and convention. For Classical Greek philosophers, nature was not created nor it was grown artificially. A tree is not grown or created by a human in the same sense as we create a terracotta figure. The latter is definitely an art. In contrast, convention or law is by tradition since we have been doing things in a particular way. Here, by law, I don’t mean legislation enacted by modern nation states where legislation is intended to achieve specific social, political or economic objectives. I consider law to be evolutionary and self emergent instead of constructed rationally. It has been elaborated by F A Hayek in details in his seminal work ‘Law, Legislation and Liberty’.
To determine what right humans should have in a political community, the distinction between nature and convention was important. Humans definitely fall in the realm of nature, but it’s undeniable fact that we are governed by conventions which are either explicit or implicit. The explicit conventions are known as laws which are formally implemented in the sense a violation of law attracts punishment. But there are implicit norms such as social conventions around marriage which are generally not violated, though there is no authority punishing you for violation. The question emerges regarding whether these conventions created by human institutions curtail our natural freedom which we get by the virtue of being humans. Is it possible that we have certain set of rights which exist automatically without any convention? For example, we have the ability to write after learning alphabet but what script one learns is more a function of convention. In Classical Political Philosophy, these rights were termed as natural rights which humans get by the virtue of merely being humans, while rights granted by law or convention are positive rights.
When we accept that there are natural rights which exist independent of convention, aren’t we arguing for establishing the rule of nature? And what are the characteristics of the rule of nature? In Hindu Political theory, when there is absence of rule of Dharma, it’s termed as मत्स्यन्याय (matsyanyay) which roughly means the stronger preying on weaker. Inequality of human beings in different domains is a fact which can’t be denied by anyone. So, the genius of Hindu Political theory advocates the fundamental fact that rights of humans can’t be protected unless there is an external authority enforcing it. This is not to say that there is no natural order of things which is also known as Rta in Hindu Philosophy, but natural order of things need to be upheld as it’s done by Varuna. In Arthashastra, Acharya Kautalya recommends establishing the murti of Varuna in prisons showing the importance of Varuna in upholding the natural order of things.
Coming back to our distinction of natural and positive rights in the context of strong preying on the weaker ones, isn’t it obvious that an external factor needs to be employed to protect natural rights? If we consider freedom to be a natural right of humans and there is another personal violating the freedom of the first person, the natural right of the first person becomes an imaginary object. How will the rights of other person be protected? And the answer lies in positive rights established by convention or law which will protect the rights of one against another. In Renaissance era, political philosophers used the concept of natural rights to argue for the formation of state such as social contract theory in which humans enter into a contract with each other to form a political institution which will safeguard their rights against one another. At the same time, natural rights can be used to argue against every human law by postulating that a law created by humans can never be just since it’s not rooted in natural order of things.
How did Hindu political thinkers postulate the origin of state? We have two divergent views. The classical view espoused in Mahabharata and Aitreya Brahamana is based on social contract theory. As the story goes, members of the society decided to elect a king who will execute rule of the law in the return of 1/6th of payment of produce to the ruler. There is no divine rights of kingship here, but a basic recognition of political factors. The other view has been elucidated in Panchatantra, which is closer to the actual political realities. Panchatantra espouses the position that the origin of state lies in the will to power and it’s the power which determines the rulership instead of any form of social contract. The kings in Panchatantra are seldom sagacious while it’s generally the council of ministers deliberating on citizen centric policies which shield them from the despondency of the king. In either case, at the fundamental level, the distinction between physis and nomos was rooted in empirical realities which shaped the direction of Western political thought for almost two millennia.
1. History of Political Philosophy, edited by Leo Strauss