Front Page Titles (by Subject) XI: THE LAW OF NATURE - Studies in History and Jurisprudence, vol. 2
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XI: THE LAW OF NATURE - Viscount James Bryce, Studies in History and Jurisprudence, vol. 2 
Studies in History and Jurisprudence (New York: Oxford University Press, 1901). 2 vols.
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THE LAW OF NATURE
The Idea of Nature as a Ruling Force.
It would not be possible, within the compass of anything less than a substantial volume, either to present a philosophical analysis of the ideas comprised or implied in the term Law of Nature, or to set forth and explain the various senses in which that term has been in fact employed, and the influence which, in those various senses, it has exerted as well upon political theory as upon positive law. What I propose to do here is something less ambitious and more closely connected with the study of the Roman law. It is to sketch in outline the process by which the notion of Nature as the source of law grew up and passed into philosophy, and from philosophy into legal thought; to show how the notion took a comparatively definite shape in the minds of the Roman jurists; to describe the practical use to which they put it, and finally to indicate (in the briefest way) some of the consequences in modern times due to the prominence which the Romans assigned to it. The subject has been treated by so many writers, some of them well known to all students, that much of it may be passed over as familiar. My chief aim will be to show that there is far less of a vague and merely abstract character in the conception than has sometimes been attributed to it; that it had a pretty definite meaning to the Roman jurists; and that they used it in a thoroughly practical spirit.
When man, having attained some mastery over nature, begins to turn his thoughts to an explanation or classification of the phenomena among which he finds himself and of which he is a part, two general observations present themselves to his mind. The first of these is that beneath all the differences which mark off from one another the living creatures, both animals and plants, wherewith the world is filled, there exist certain noticeable similarities in respect of which they may be distributed into groups. Individual animals differ from one another, but all those of a certain kind or species have certain points in common, which constitute their character as a kind. So also different kinds have still many things in common. All sorts of dogs have certain common characteristics; and though dogs differ from wolves, dogs and wolves have many points of resemblance. Now the most general and most remarkable of these phenomena in which living creatures are alike to one another are the processes of growth through which they pass. They are born in a similar way; they enter on life small and weak; they become larger and stronger; they gain teeth at certain periods; they shed their hair or plumage at certain periods; they at last become weaker and die. So plants spring out of the earth from seed, shoot up and give off leaves, bloom into flowers, form seed, wither down again into the earth and die.
From the habit of noting these phenomena four conceptions seem to arise. The first is this, that of the various characteristics of each creature, those which it has in common with other creatures of the same kind are the most deeply rooted and permanent. The second is that these characteristics exist from the origin of the creature, and are its Birth-gift. The third is that one group of the common characteristics, and the most important of them all, is the group which includes the phenomena of growth and decay. And the fourth is that in these phenomena of growth there is evidence of some sort of force working upon and through the creatures, something wholly irrespective of, and nowise referable to, their volitions, something stronger than they are, and which determines the course of their life-processes.
The second observation is that among human beings there is a similar identity of dominant characteristics combined with an endless diversity of individuals, a diversity greater than that between different individuals of each lower species. In all men, however otherwise unlike, there may be noted the same general tendencies, the same appetites, passions, emotions. It is these passions and emotions that move men’s actions, and move them upon principles and in ways which are always essentially the same, despite the contrasts which one man presents to another, despite the jars and conflicts in each man which spring from the fact that passion may urge him in one direction, and interest in another, while fear my arrest action altogether. Thus there is formed the conception of a general constitution of man as man, over and above all the peculiarities of each individual, a constitution which is not of his own making, but is given to him in germ at the outset of his life, and is developed with the expansion of his physical and mental powers. The most notable marks of this constitution of man as man are therefore its Origin at his birth, and its unfolding in the process of his Growth. So here also the phenomena of Birth and Growth stand out as the notes of that sort of unity which includes all mankind and makes Man what he is.
The language in which I am seeking to present these conceptions, though untechnical, is inevitably tinged by our modern habits of thought. But we may well believe that in substance such conceptions were present to persons of a reflective turn long before a set of abstract terms in which to express them had been invented. They had worked themselves into the texture of educated minds, and had been conveyed in figurative language by poets before metaphysicians laid hold of the matter.
When metaphysicians appear, that is to say, when thought, consciously speculative, begins to attempt systematic and comprehensive solutions of the problems of the universe which it has begun to realize as problems, a new period opens. Looking round upon the animated (and now also with a clearer eye upon the inanimate) world, philosophers feel the need of finding a Cause for the regularity they observe in the working of physical forces and in the growth of living creatures upon settled and uniform lines. They conclude that there must exist a power, either personal—a Deity or Deities—or impersonal, a sort of immanent and irresistible force in things themselves, which has stamped its will or tendency upon the movements and processes of the material universe. They discover analogies between the action of such a Power in the inanimate and in the animated world, and between its action on other animals and its action on man. Thus they figure it to themselves as governing both on somewhat similar principles, and aiming at somewhat similar ends. The name they give it is drawn from Birth. It is Φύσις, Natura, Nature.
When they apply this method of inquiry or way of considering phenomena to Man regarded, not as a mere animal, but as a rational being, they find in him complex faculties and impulses working towards certain ends, ends which, despite infinite differences of detail, are substantially the same for all men. They note certain characteristics and tendencies which they call Normal, as being those prescribed by the general rules of his moral and physical constitution, and they deem every thing varying therefrom to be either a morbid aberration, or a fact of quite secondary consequence. And as in the wider sphere of animated being, so in that of man taken by himself, they conceive his constitution as being the result of a Power which has framed it with an intelligent purpose, so harmonizing its various activities as to fit them to attain a main and central end. Just as in the animal organism all the forces and processes of the body are so united as best to subserve its development, so in man regarded as a thinking being all the capacities, intellectual and emotional, seem to be correlated and guided by a presiding influence, that of the Rational Will, in obedience to which all the parts and all the impulses find their proper line of action. Thus that central and supreme power which in the material universe has been called Nature comes to be called in man Reason, and conversely, Nature is conceived of as necessarily Rational. For as in the universe at large the general tendency of things and that which makes their harmony is thought of, not merely as a fact, but also as a principle or pervading force, not merely as the sum of the phenomena, but also as a Power ruling the phenomena, so when a similar canon is applied by analogy to man, this power is found in Reason. And the recognition of reason as the harmonizing principle in man causes Nature, the force which gives to all things their shape and character, to be conceived of as an intelligent force moulding phenomena upon settled lines to definite ends.
Thus the conception of Nature, when it is ready to be applied to human society, includes two elements. One is that of Uniformity or Normality—the idea that the essence and ruling principle in all kinds of objects and beings and processes resides in that which they have in common, i.e. in the Type which runs through them. The other element is that of Force and Control—the idea that types have been formed and that processes work under the guidance of an intelligent Power, a power which in the case of the material universe may or may not be what is called conscious and personal (since as to this philosophers differ), but whose analogue in man is conscious and personal. Thus Nature and Reason are brought very near: or at any rate, there is what may be called a rational quality in Nature.
This view of nature and her processes as characterized by uniformity of action, and this view of such uniformity as necessarily due to some directing Force, took shape, at a more advanced stage of thought than the stage we are now considering, in the much canvassed expression Laws of Nature1 . This term, used to describe the uniformity of sequence in the phenomena of the material universe, opens up a line of reflection with which I am not here directly concerned. It is due to an imagined analogy between an ordered community, whose members obey rules made for them by a governing authority, and the ordered universe, every part of whose machinery works with a regularity which suggests rational direction by an irresistible Force. As laws are the framework of a State, so the sequences in the processes of Nature are deemed to be the framework of the external world. With the (moral) Law of Nature I am about to discuss these Laws of Nature—physical or external Nature—have of course nothing to do. In the latter, Nature, meaning the aggregate of natural phenomena, is passive, and obeys laws set to her; whereas the expression ‘Law of Nature’ represents her as the power which makes and prescribes laws. The ‘Laws of Nature’ are deemed to be imposed upon the world of nature by the Power which rules it, or, as the Greeks would say, they are laws given to the Kosmos by the Demiurgos; whereas our (moral) ‘Law of Nature’ is (as will presently appear) the law which Nature herself (or God ‘the author of Nature’) sets to mankind, her children. Nevertheless in the expression ‘Laws of Nature’ (in the physical sense) the word Nature is sometimes used to describe, not only the passive subject which obeys, but also the active ruler who commands: and this double usage has tended to induce confusion. It may be partly responsible for the phrase ‘a violation of the Laws of Nature,’ though obviously a Law of Nature cannot be violated. All that phrase can mean is that men may, ignorantly or knowingly, act in disregard of a certain sequence of physical phenomena, receiving the inevitable recompense1 . By the ancients, the two notions were not confounded, and indeed the phrase ‘Laws of Nature,’ in the precise sense it bears to moderns, occurs very rarely among them, as one may indeed say that the idea in any such sense as ours was by them but faintly apprehended2 . But, distinct as these conceptions are, they have in common the notion that Reason as a Power presides over and orders all things. And Wordsworth has in a noble passage boldly identified with the moral law the Force which directs the majestically uniform march of the celestial bodies, when he says of Duty—
Now let us turn to the phenomena of political society and see how the conception works itself out in this field.
Origin of the Conception of Natural Law.
When the observer applies himself to social phenomena, he perceives again, as he has perceived in studying the whole animated creation, two facts equally patent and equally general—Uniformity and Diversity. In human customs, civil and religious, in the rules and maxims and polities of tribes and nations, there are many things wherein one community differs from another1 . But there are also many things wherein all agree. All deem some acts, and speaking generally, though with many variations, the same kinds of acts, to be laudable or pernicious, and award praise or penalties accordingly. All recognize somewhat similar relations between individuals, or families, or classes, as indispensable, and try to adjust and regulate these relations upon similar principles. The forms which such relations take are no doubt differentiated by the particular stage, be it higher or lower, of civilization which various peoples have respectively reached. The customs of a number of savage tribes, while bearing some resemblance inter se, bear a slighter resemblance to those of more advanced nations. Yet even between the savage tribe and the semi-civilized or civilized community there are marked similarities, and the customs of the former are perceived often to contain the germ of what has been fully developed among the latter.
Now the customs and rules wherein tribes or nations agree are evidently the result of dispositions and tendencies which belong to man as man. In other words, they are the expression of what is permanent, essential, and characteristic of man, so that if a traveller were to come upon some hitherto undiscovered tribe, he might expect to find these phenomena present there, just as in each child as it grows up there appear the familiar qualities and tendencies which belong to the whole human species. Hence such phenomena of usage are deemed to be normal, and therefore Natural, that is, they are due to the Force which has made the human species what it is. So here in the sphere of human customs and institutions we perceive the same contrast between that which is variable as being due to circumstance or environment, or what we call chance, and that which is constant and uniform as being due to causes present, if not everywhere, yet at any rate in the enormous majority of cases. And the source of the constancy is to be found here in the political, no less than in the ethical and social sphere, in the constitution of man as a moral and intellectual being. Nature is therefore, on this view, a ruling power in social and political phenomena as well as in those of material growth and of moral development.
The customs and usages of mankind are the early forms of what come afterwards to be called Laws—seeing that all law begins in custom—as indeed the Greeks call both by the same name. Accordingly those who began to philosophize about human society gave shape to their speculation in theories about Laws.
Now Laws, the rules and binding customs which men observe and by which society is held together, fall into two classes. Some are essentially the same, in all, or at any rate in most communities, however they may superficially vary in their arrangement or in the technical terms they employ. They aim at the same objects, and they pursue those objects by methods generally similar. Other laws differ in each community. Perhaps they pursue objects which are peculiar to that community; perhaps they spring out of some historical accident; perhaps they are experimental; perhaps they are due to the caprice of a ruler. Those which prevail everywhere, or at any rate, generally, appear to issue out of the mental and moral constitution common to all men. They are the result of the principles uniting men as social beings, which Nature, personified as a guiding power, is deemed to have evolved and prescribed. Hence they are called Natural. Being the work of Nature, they are not only wider in their area, but also of earlier origin than any other rules or customs. They are essentially anterior in thought as well as in date to the laws each community makes for itself, for they belong to the human race as a whole. Hence they are also deemed to be higher in moral authority than the laws which are peculiar to particular communities, for these may be enacted to-day and repealed to-morrow, and have force only within certain local limits.
This antithesis of the Customs and Laws which are Natural, Permanent, and Universal to those which are Artificial, Transitory, and Local, appears in some other fields as well as in that purely legal one which we are about to consider. In particular, it takes three forms, which may be called the Ethical, the Theological, and the Political.
The ethical appears early, and indeed before there is any proper science of Ethics. One of the first difficulties which men advancing in civilization encounter is the conflict between the Law of moral duty ruling in the heart and the laws enacted by public authority which may be inconsistent with that law. This conflict is the subject of the Antigone of Sophocles. We are all familiar with the famous lines in which the heroine replies to the king, who had accused her of breaking the laws of the city, by declaring that those laws were not proclaimed by Zeus or by Justice, who dwells with the deities of the nether world:—
Antigone goes on to say that these laws of the gods, unwritten and steadfast, live not for to-day or yesterday, but for ever, and no one knows whence they spring:—
The same poet enforces the same view in a lofty passage of another drama, where the moral laws are described as the offspring of the gods, and not of man’s mortal nature, and which no forgetfulness can ever lap in slumber1 .
The idea frequently recurs in later literature, and is nowhere more impressively stated than in the Apologia of Socrates, where the sage speaks of himself as being bound to obey the divine will rather than the authorities of the State, treating this divine will as being directly, though internally, revealed to him by ‘a divine sign,’ and being recognized by his own conscience as supreme.
The theological view is vaguely present in early times, as for instance in Homer, where certain duties, such as that of extending protection and hospitality to suppliants, are associated with the pleasure and will of Zeus. It is most familiar to us from St. Paul, who compares and contrasts the Law of Nature, which prescribes right action to all men, being instilled into their minds by God, with the Positive revealed Law which God has given to one particular people only.
‘When the Gentiles which have not the Law, do by nature the things contained in the Law, these, having not the law, are a law unto themselves; which show the work of the law written in their hearts, their conscience also bearing witness, and their thoughts the meanwhile accusing or else excusing one another2 .’
A similar view, mutatis mutandis, is found in not a few of the Greek philosophers. Heraclitus speaks of one divine law whence all human laws draw nourishment. Socrates, as reported by Xenophon, contrasts the laws of the city with the unwritten laws which in every country are respected as substantially the same, and says that these latter laws were laid down by the Gods for mankind1 , adding that the fact that their infraction carries its own penalty with it seems to suggest a divine source. Similar passages occur in Plato, who contrasts abstract justice and rightful laws with the actual laws and customs that prevail in political communities. The contrast becomes more definite in Aristotle, whose views are specially important, because they profoundly influenced the scholastic philosophers of the Middle Ages. He divides Justice as it appears in the State into that which is Natural and that which is Legal or Conventional, the former having everywhere the same force, while the latter consists of matters which were originally indifferent and might have been settled in one way or another, but which have become positively settled by enactment or custom. Some (he proceeds) think that there is no such thing as Natural Justice, because ‘just things’ are not the same everywhere, whereas physical phenomena are everywhere identical. This is true: nevertheless, even as the right hand is naturally stronger than the left, although there are left-handed men, so there is a real difference between rules which are and rules which are not natural2 . Similarly, in a more popular treatise, Aristotle divides law into that which is Common, being in accordance with Nature and admitted among all men, and that which is Peculiar (ἴδως), settled by each community for itself3 . This he treats as a familiar conception, to which an advocate pleading a cause may appeal when he finds positive law against him. He quotes the passage already cited from Sophocles, and two lines of Empedocles descanting on Universal Law. So Demosthenes refers to the ‘common law of all mankind’ which justifies a man in defending his property by force1 .
The Stoics took up the idea and worked it out with great fullness and force, especially on its ethical side. They developed the Aristotelian conception of Nature as the guiding principle immanent in the universe. This principle is Reason, i.e. the Divine Reason; and Natural or Common (=Universal) Law is its expression. So also in Man, who is a part of universal nature, Reason is the ruling and guiding element, ordering all his faculties in such wise that when they are rightfully developed in action he is obeying his true nature. Thus the formula ‘to live according to nature’ becomes the concise statement of what is at once his duty and his happiness.
Philosophers were however by no means unanimous on the subject. The Sceptics and the New Academics denied altogether that there was such a thing as the ‘naturally just (ϕύσει δίκαιον),’ pointing to the diversities in the positive law of all States, and also to the disagreements among speculative thinkers. But the Socratic or Aristotelian or Stoic view prevailed, having ethical or religious considerations to recommend it to those who greatly desired to find an ethical basis for life, and, if possible, create thereout a religion.
What I have called the Political form of the idea is to be found in the notion, as old as Epicurus, that there is a close connexion between the Law of Nature and the Common Good, a connexion sometimes represented by saying that Natural Justice prescribes what is useful for all, sometimes by holding that practical utility is the test of whether any law is to be deemed to have the authority of Nature behind it2 . This notion comes right down through the ancient world to modern times, and is really implicit in nearly all that has been written on the subject. No one would have repudiated the high metaphysical or theological view of the Law of Nature more vigorously than Bentham, yet there is an affinity between his method of applying utility as against positive laws and the methods of several of the ancient philosophers. And so a German critic is justified when he talks of Bentham and Austin as the ‘propounders of theories of Natural Law.’ With the political outcome of the idea, however, we are not at this moment concerned. It is enough to indicate how it has found expression in these various fields1 .
What I have sought to do in this introductory statement is to show how the notion of Nature as a force governing social as well as physical phenomena grew up, and to indicate the wide influence it had attained at the time when Rome became mistress of the world. Let us now turn to the Romans, and inquire what they meant by Natural Law, how the conception shaped itself in their hands, and to what practical use they turned it.
The Roman conception has two sources, the one historical, the other theoretical. I begin with the historical, which is the earlier in date, and incomparably the more important2 .
The Roman ‘Law of the Nations.’
Long before the time when the city on the Tiber had become the undisputed mistress of Italy, Rome began to be the resort of many strangers who did not possess even that qualified kind of citizenship (summed up in the words connubium and commercium) which included the capacity for forming family ties, and for entering into business relations according to Roman rules. These strangers or aliens (peregrini) had originally no civil rights, public or private, but they nevertheless dealt with Roman citizens, sold to them, bought from them, lent and borrowed money, entered into partnership, acted as factors or supercargoes, made wills, gave or received legacies. Similarly, some of them contracted marriages with Roman citizens, and became connected by various family bonds. It was necessary for the Roman courts to deal with the relations, and especially of course with the business relations, which were thus created. Yet the courts could not apply the rules of pure Roman law to them, because it was a precondition to the doing of certain formal acts under that law, to the holding certain legal relations, and (in some kinds of suits) to the use of the appropriate forms of procedure, that the doer or holder should be a full citizen. Accordingly the Roman courts, when they had to administer justice between these strangers, or between them and citizens, were obliged to find certain principles and rules which could guide their action in the same way as the principles and rules of the pure Roman law guided them when dealing with citizens.
The phenomenon of having a different law for strangers and for citizens is one which at first sight seems strange to us moderns, because in modern civilized countries ordinary private law is administered with little regard to the nationality or allegiance of the persons concerned, the law of the country being regularly applied, except when it can be shown that the domicil of a party to a suit, or the fact that a contract was made with reference to another law than that of the court exercising jurisdiction, or the situation of the property dealt with, requires the application of some other (i.e. foreign) law1 . But in the ancient world foreigners everywhere stood on a different level from citizens, as regards not only political, but also private civil rights; the sense of citizenship being much more intense in small communities, and there being no such bond of fellowship as the Christian Church subsequently formed for the Middle Ages and the modern world2 . Indeed it was the Roman Empire and the Church taken together which first created the idea of a law common to all subjects and (later) to all Christians, a law embodying rights enforceable in the courts of every civilized country.
How then did the Roman magistrates find the law which they needed for the above-mentioned purpose? As they could not apply their own law, so neither could they select the law of any one of the States which surrounded Rome, because the persons between whom justice had to be done came from a great number of States and tribes, each of which had a law of its own. Being unable therefore to borrow, they were forced to create. They would appear to have created—I say ‘appear,’ because our knowledge of the matter is far from complete—by taking those general principles of justice, fair dealing, and common sense, which they found recognized by other peoples as well as their own, and by giving effect to those mercantile and other similar usages which they found prevailing among the strangers resident at Rome. Thus by degrees they built up a body of rules and a system of legal procedure which, while it resembled their own system in many of its general features, was less technical and more consonant to the practical convenience and general understanding of mankind. They called it the Law of the Nations or of Mankind (ius gentium)1 , not in the sense of law valid as between nations (what we should call International Law2 ), but as being the common or general law, just as the expression nusquam gentium means ‘nowhere at all3 .’ It is the law which nations in general used and could comprehend. Each of these nations, or communities—Tuscans, Umbrians, Greek cities of Southern Italy, Carthaginians, and so forth—had a law of its own, with certain peculiarities which no other people could be expected to know or perhaps to relish. But the principles of good faith and equity underlay, and were recognized in, the laws of all, so that this Law of the Nations represented the common element which all shared, and by which all might be content to be judged. Thus it comes near to what the Greeks had called the ‘common law of mankind.’ Yet it is not to be identified with that law, for it is conceived of as something concrete, resting entirely on the fact that men observe it, and possibly not always in accordance with abstract justice.
We need not here examine the question, which indeed our data do not enable us to answer, by what practical methods or processes the Roman Courts proceeded to frame this Law of the Nations; whether, and if so how far, they actually did inquire into the customs and rules of the peoples with whom they came most in contact; or whether they were content to proceed upon the general principles of justice and utility; or whether they followed in the main their own law, stripping off its technicalities while preserving its substance. All three methods might be more or less used. But probably they were chiefly influenced by the customs which they found actually recognized by traders from various nationalities resident at Rome. Before the Courts stepped in to administer justice among the strangers, commercial practice had doubtless created a body of customs which were in fact observed, though no express and binding sanction had yet been given to them. One may illustrate this by recalling the fact that much of our own mercantile law is based upon customs of merchants which English Courts, seeing them recognized by honest traders as actually binding, and seeing that contracts were made with regard to them, and that they were in fact understood as being conditions implied in such contracts, proceeded to enforce, treating them as being really part of the contract. This process of turning custom into law went on actively so late as the time of Lord Mansfield, of whom it has been said that he and the juries at the Guildhall in the City of London created no small part of English commercial law. So the English officials, when they began to administer justice among traders in India, found a number of customs actually observed, and built up a body of law out of these rules, plus their own notions of what was fair and just, together with such recollections as they had of the principles of English law1 .
What is certain is that the Romans did not formally enact any parts of this new Law of the Nations. It was built up solely by the practice of the courts and the action of the jurists; and it took definite shape only in the edicts of the Praetors and Aediles1 . By the end of the Republic it had grown to considerable dimensions, and long before that date had begun to exercise a potent influence upon the development of the law which belonged to citizens only, and which was therefore called ius civile. Such dicta of the professional jurists regarding ius gentium as we possess belong to a later time, and the earliest authority who mentions it is Cicero. He says that ‘our ancestors distinguished the law of citizens from the law of the nations, that which is proper to citizens not being therewith part of the law of the nations, whereas that which belongs to the law of the nations ought to belong to the law of citizens also2 ’; and in several other passages he contrasts the two kinds of law, observing in one place that the ius gentium, like part of the ius civile, is unwritten, i.e. not included in statutory enactments3 . He talks of it as a body of positive law resting on custom and agreement, but unfortunately does not tell us how that particular part of it which the Roman Courts administered had been formed. We may, however, safely conclude that the procedure of the magistrates in granting actions and allowing defences in certain cases had been the chief agency whereby it received a definite form, and that the materials were (as already observed) chiefly furnished by the habits of dealing which had arisen among the strangers resident at Rome in their intercourse with Romans and with one another, in their bargains and transfers of property, in the forms and conditions relating to loan and pledge and selling and hiring, such conditions being usually embodied in documents to which a specific legal effect would be attached. Broadly speaking, the basis or source of the underlying principles of ius gentium would as respects commercial matters be found in good faith and common sense, and as respects family matters and inheritance in natural affection.
This sketch, slight as it is, may suffice to indicate how the Romans were brought to deal in a concrete and practical way with the phenomenon we were considering on its abstract side, viz. the distinction between customs and laws which are substantially common to all (more or less civilized) communities, and those which are peculiar to one or a few only. That which struck a Greek thinker who reflected on the state of the Mediterranean world in the fifth or fourth century bc, viz. virtual uniformity in some customs and laws, endless diversity in others, struck every Roman magistrate who had to preside in urban or provincial courts during the third and second centuries bc The Greek formed a philosophic theory: the Roman, being a ruler, was forced to construct a working system. But the Greek had little occasion to apply his theory; and the Roman did not think of basing his system on any theory at all. His ius gentium grew up and spread out and bore fruit, and was already influencing both the old law of Rome herself and the administration of Roman courts in the provinces before (so far as we know) anybody had thought of connecting the Law of Nature with the Law of the Nations.
Connexion of the Law of Nature with the Law of the Nations.
This connexion belongs to the last days of the Roman Republic, and was probably due to that increased interest in philosophy and ethics which owed so much to the literary activity of Cicero, who was not only a statesman and an orator, but an ardent student of philosophy and a voluminous writer on philosophical, especially ethical, topics. It is the fashion now to depreciate Marcus Tullius. He was probably also depreciated in his own time. The learned black-letter lawyers, who had been his fellow pupils under Q. Mucius the Augur, doubtless said of him, as Sugden is reported to have said of Lord Chancellor Brougham, that if only he knew a little about law he would know something about everything. And the Greek philosophers with whom he loved to discourse probably hinted to one another, when their eloquent patron was not by, that, after all, no Roman would ever be a thinker. We can admit a measure of truth in both criticisms. But Wisdom is justified of all her children, and Cicero has outlived both the lawyers and the philosophers of his own time. His eager and capacious intellect, playing round political and legal, as well as metaphysical and moral inquiries, and using a brilliant style to popularize and render attractive all that he touched, gave a currency to the ideas of Greek speculators which made them tell more widely than ever before upon the Roman mind, and all the more so when, in the generation that succeeded his own, the career of political distinction through forensic and senatorial and platform oratory began to be closed by the growth of an absolute monarchy. Indeed Cicero’s own philosophical treatises were due to that retirement from active political life which the ascendency of Julius Caesar caused; and his composition of them was prompted (as he tells us) by a wish to stimulate the flagging public spirit of his younger contemporaries.
Now the theory of the Law of Nature, suggested by Heraclitus and Socrates, preached more actively by Zeno and Chrysippus, had been much discussed and widely diffused during the centuries between Aristotle and Cicero. Its acceptance and influence were aided by the changes which had been going on in the world, the Hellenization of Asia, the admixture of religions and mythologies, and that more easy and frequent intercourse between the Western and Eastern Mediterranean countries which enabled the peoples to know more of one another. The doctrine, though not confined to the Stoics, received among them special prominence, and became a corner-stone of their ethical teaching. Moral duty was by them practically deduced from, and identified with, the Law of Nature. Cicero, though he would not have described himself as a Stoic, substantially adopts their language on this point, and lays great stress on Nature as the source of the highest law and morality, invoking the doctrine in his speeches as well as expounding it in treatises1 . With him the Law of Nature springs from God, is inborn in men, is older than all the ages, is everywhere the same, cannot be in any wise altered or repealed. It is the basis of all morality. It ought to prescribe the provisions of positive law far more extensively than it in fact does, and to give that law a higher and more truly moral character. We might expect Cicero to go on, if not to identify it with the ius gentium which he contrasts with the peculiar law of Rome, at any rate to describe it as the source and parent of ius gentium. This, however, he does not actually do, though more than once he comes near it2 . Ius gentium is to him a part of positive law, though much wider in its range than ius civile, whereas the Law of Nature is altogether an ethereal thing, eternal, unchangeable, needing no human authority to support it, in fact St. Paul’s ‘law written on the hearts of men.’
Although Cicero was the most copious and eloquent writer among those Romans who pursued the study of philosophy in his generation, he did not by any means stand alone. Most of the prominent statesmen, orators, and authors occupied themselves with ethical speculation; and this was no less true of the leading spirits of the following century. The great jurists of the Augustan and post-Augustan age, such as Antistius Labeo, Massurius Sabinus, and Cassius, refer to the Law of Nature as a source of law already familiar. Two influences were indeed at work, which gave to philosophy a greater prominence than it had perhaps ever enjoyed before or has ever enjoyed since. Faith in the old religions having practically vanished from the educated classes, some substitute was needed, and the more pure and earnest minds sought this in philosophy. The career of political life having been, in its old free form, closed by the vesting of all real power in the hands of one person, who presently became recognized as legally sovereign, men were more and more led to seek solace, or enjoyment, or at any rate occupation, in the study of metaphysics and ethics. Jurisprudence continued to be pursued by many of the most powerful and cultivated intellects; and philosophy was not only a main part of education which such men received, but claimed much of their time and thought. They were so permeated by it, that both its methods and its principles must needs influence their treatment of legal matters, whether as writers, or as magistrates, or as advisers of the monarch and framers of legislation. The idea of the Law of Nature as the source of morality and the true foundation of all civil laws, the idea of all mankind as forming one natural community of which all are citizens, and in which all are equal in the eyes of Nature—this idea had come to pervade the minds of thinking men, whether or no they were professed adherents of any school of philosophy. It was taken as a generally accepted truth, and was therefore assumed and referred to without adducing arguments on its behalf, far removed from the actual facts of the world as was the ideal to which it pointed.
The growth and acceptance of the doctrine may be compared with the process whereby certain notions, now pretty generally received in nearly all civilized countries, have made their way during the last two centuries. Such are the doctrines known in America as those of the Declaration of Independence, and in France as the principles of 1789. Such is the doctrine of the freedom of the individual conscience, and the consequent wrongfulness of religious persecution. These doctrines began to be asserted (especially in England) during the seventeenth century. They were diffused slowly, and constantly denied by the powers that be, but they have been now virtually accepted in principle by all thinking men. Few think it necessary to argue on their behalf; yet they are very far from having secured their full effect, for in some countries the rulers refuse to apply them, and in almost all countries they are admitted to be subject to exceptions which render their full application difficult. They represent rather an ideal towards which society is held to be moving, than a positive basis on which existing society is built.
Although, however, the Romans of the earlier imperial period saw that their conception of the Law of Nature was a long way from being realizable in such a world as was then present, they also discovered in the changes that had passed upon that world much which recommended the conception as true and sound. The extension of Roman dominion was completing the process which the conquests of Alexander the Great had begun. Eastern religions invaded the West; Greek and Latin became world-languages; commerce brought all the Mediterranean peoples together; nations and nationalities were blent and ultimately fused in a common subjection to Rome. The provincial rose as the old Roman citizen sank, so that equality came nearer and nearer. The old mutually exclusive systems of citizenship and law seemed obsolete; and therewith the traditional reverence for the ancient legal institutions of the Quirites passed away, even from the conservative minds of lawyers1 . In particular the idea of a community of all mankind, as opposed to the small civic communities of earlier days, began to approach a realization in the great empire which had gathered all civilized men under its wings, had secured for them peace, order, and a just administration of the laws, and had admitted every one, whatever his race, tongue, or birthplace, to a career of honourable ambition in civil and military office, a career whose possibilities included even the imperial dignity itself.
For this all-embracing commonwealth, this societas omnium hominum, of which the Greek philosophers and Cicero had written, and which had taken concrete shape in the Roman Empire, there would seem to be needed some common law, since the ideas of law and state were correlative2 , according to the dictum, Quid est civitas nisi iuris societas3? Now there was a law which could actually be applied to all Roman subjects, non-citizens and citizens alike, and which was supposed to be the law common to all men as being the law which all nations used, and which had therefore been applied by Roman Courts where persons outside the pale of Roman law proper were concerned. Just as the law of Rome drew its authority from the will of the people, whether signified expressly by enactments or tacitly by usage and consent, so this general law rested on custom, on the understanding and will of collective mankind, evidenced by their practice; and its source was therefore one which met and satisfied the view that the community are the source of law. Now this common law of mankind was the ius gentium. Though in point of fact gathered and moulded by Roman Courts, it was deemed to represent the essence of the law which prevailed among various neighbour peoples, and of the usages which common sense and the needs of commerce had sanctioned among men in general, wherever dwelling. It was conceived of as being common to all mankind (ius commune omnium hominum1 ) (omni humano generi commune2 ), or as the law which exists among all peoples (ius quod apud omnes populos peraeque custoditur3 ) (ius quo gentes humanae utuntur4 ). It was applicable to persons who had no rights of citizens in any city (ἀπόλιδες)5 . It was coeval with the human race itself (cum ipso humano genere proditum6 ). It was in all these respects contrasted with ius civile, just as the Law of Nature (ius naturale) was similarly contrasted. Finally it was the law which natural reason had created (ius quod naturalis ratio constituit7 ). When this point had been reached, it became practically identical with the Law of Nature, and the identity, implicitly suggested in Cicero’s remark that the agreement of all nations must be deemed a law of nature8 was formally enounced by jurists at least as early as the time of Hadrian. In Justinian’s Institutes the identification is complete.
A third conception, to which reference has not yet been made, contributed to this fusion, viz. the conception of Equity (aequum et bonum, aequitas). Equity means to the Romans fairness, right feeling, the regard for substantial as opposed to formal and technical justice, the kind of conduct which would approve itself to a man of honour and conscience. It completes the idea of the higher kind of law by adding a third element, or rather a third source, that which springs from the breast of man and represents his natural sense of justice, his sympathetic good feeling towards his fellow men. Thus we may say that seen from the point of view of theology or metaphysics, this universal or Natural law is prescribed by God or by Nature. Seen from that of history and political science, it issues from the will of mankind, who, organized as nations, have created it by custom and practice. Seen from the side of ethics and psychology, it represents the tendencies and habits of the typical good man, who desires to treat his neighbour as he would wish to be himself treated. The coincidence of these three streams of origin or lines of thought enlarges the conception, defines it, gives to it, taken as a whole, a harmonious symmetry. Thus it becomes complete on its theoretical as well as on its practical side.
In the Roman jurists of the best age we note three qualities not always united in lawyers—a love for theoretical perfection, an attachment to ancient usage, and a sense of practical convenience. The first delivered them from the tyranny of the second, the second moderated their devotion to the first, the third found a middle term between the other two and guided them in the adjustment of principle to fact. The blending of the notion of Natural Law, as the ethical standard of conduct and the ideal of good legislation, with the notion of the law formed by the usages and approved by the common sense of all nations as embodying what was practically useful and convenient, satisfied both the philosophical and the historical instincts of the jurist. Had there been a similar combination of ideas and habits in the English jurists of the seventeenth and eighteenth centuries, our legal progress would have been more rapid, and, if the phrase be permissible, more ordered and rhythmical.
Relation of Natural Law to General Customary Law.
There are, however, misconceptions against which we must be on our guard in grasping and appraising this identification of Natural Law with the sum of that which is common in the customs of mankind.
In the first place it was not a complete identification. There were some points in which Natural Law and the Law of the Nations differed, and one of these was of profound importance. That point was Slavery. It was universal in the ancient world, and so must be deemed a part of ius gentium. But philosophers had pointed out (even before the time of Cicero) that it was contrary to nature1 . Here, therefore, is a large department in which the sanction of Nature could not be claimed for this part of ius gentium any more than it could for much of ius civile. Slavery, says one jurist, is an institution of the Law of the Nations, whereby one man is subjected to the ownership of another against Nature2 . And where we find the rigour of the old law of Slavery modified, this is always said to be in deference to nature and humanity, not to anything in ius gentium. And the Roman jurists indeed go so far as to hold that by Nature all men are equal3 . So on the other side there were some provisions of statute law (for instance, in the rules regarding inheritance) which, though they had been suggested by principles ascribable to the Law of Nature, were, as resting on Roman statutes, referred to the category of ius civile rather than to that of ius gentium.
Secondly, the Romans did not, when they referred any particular institution to the ius gentium, necessarily intend to convey that it was universally prevalent. The origin of hypotheca for instance (mortgage of immovables) and of the syngraphe (written acknowledgement of a debt) was due to Greek usage, and by no means general over the world. These legal institutions, however, since they did not belong to Roman law proper, were held to be part of ius gentium.
Thirdly, there is no ground for thinking that when the Roman jurists said that Natural Reason was the source of ius gentium, they had altered their historical view of the origin and character of the latter body of law, or fancied that there ever had been an age, however remote, however simple and primitive, during which its precepts, in any concrete shape they knew or could imagine, had actually prevailed among mankind. The expression ‘lost Code of Nature,’ which a distinguished writer has used1 , is therefore an unfortunate one, for it seems to imply that the Romans were under the belief that there had once been a so-called State of Nature, in which the ius gentium served as law. So far were they from such a delusion that they ascribe to ius gentium war, captivity, slavery, and all the consequences of these facts, while in the golden age, the Saturnia regna of the poets, all men were free2 and war was unknown—
Their identification of the Law of Nature, which they accepted as a doctrine of philosophy, with the Law of Nations, which their courts had been administering and their text-writers expounding for two or three centuries at least, affected neither the essentially ideal character of the former nor the distinctly practical character of the latter. Had it done either of these things it might have worked for evil. But in point of fact it did not palpably quicken the pace of legal reform, nor did it induce any theoretic vagueness in their views of law, or suggest crochets or subtleties which could impede the manipulation of positive rules. The jurists use the two terms as practically synonymous, though generally employing ius naturae or naturalis ratio when they wish to lay stress on the motive or ground of a rule, ius gentium when they are thinking of it in its practical application. To borrow the language of logic, the connotation of the two terms is different, while their denotation (save as aforesaid, and especially save as regards slavery) is the same.
Thus happily united by a synthesis which satisfied at once the practical good sense and the philosophic temper of the Roman jurists, the two conceptions of the Law of Nature and the Common Law of Mankind went on their way rejoicing. But after a while an event befell which deprived the latter expression of its ancient concrete basis, and rendered it, except for historical purposes, and as a description of a body of rules of a particular historical origin, virtually obsolete. This was the extension of Roman citizenship to all the subjects of the Roman Empire by an edict of the Emperor Antoninus Caracalla between 212 and 217 ad, an act which destroyed the distinction between ius gentium and ius civile so far as the persons governed by each were concerned, for there were thereafter comparatively few peregrini (non-citizen subjects), since ius civile was now enjoyed by all the dwellers in the Roman world1 . This may be one of the reasons why, in the constitutions of the Emperors collected in the Codes of Theodosius the Second (ad 438) and of Justinian (ad 534), constitutions the earliest of which date from Hadrian, the term ius gentium never occurs. It is frequent in the Institutes of Justinian (ad 533), but that book (based on the Institutes of Gaius) is, although a statute, yet primarily a manual for learners who were going to use the extracts from old jurists contained in the Digest, so that the term could not be omitted. When the later Emperors wish to assign a ground for some enactment which they are issuing, they commonly speak of Nature, or Natural Reason, or Humanity, or Equity, using these words almost indiscriminately to describe the same thing.
Meaning attached by the Roman Jurists to Nature.
Now let us inquire a little more closely what the Roman jurists and legislators meant to convey when they talk of Nature, or the Law of Nature, and what are the positive rules of law which they ascribe to this source, or established in obedience to this principle.
The following senses in which they use the word Nature may be enumerated, though these cannot be sharply distinguished, for some run into others.
1. The character and quality of an object, or of a living creature, or of a legal act or conception (e.g. natura venenorum, natura hominum, natura apium (fera est), natura contractus, natura dotis).
2. The physical system of the Universe (rerum natura), and the character which it bears. Thus it is said that Nature has taken some objects (e.g. the sea and air) out of the possibility of private ownership.
3. The physical ground of certain relations among men, as for instance of blood relationship (cognationem natura constituit). So the rule that children born out of wedlock follow the condition of the mother is ascribed to Nature (liberi naturales); so the rule that persons under puberty should have a guardian.
4. Reason, whether in the sense of logic and philosophical principle on the one hand, or as meaning what we should call ‘common sense’ on the other, is often denoted by the term Nature. Nature (it is said) prescribes that no one should profit by harm and injury to another, and that whoever bears the disadvantages of a thing should also reap the advantages of it; and Nature allows a buyer to make a profit on a re-sale. The expression Natural Reason (naturalis ratio) is commonly used when the former meaning is to be conveyed, and Paulus indeed says that Natural Reason is a sort of tacit law. To use the term Reason as equivalent to common sense and convenience comes very near the doctrine that Utility is the basis of law, and the word utilitas is frequently employed by the Romans.
5. Good feeling and the general moral sense of mankind. For instance, Nature directs that parents should be supported by their children, and that a freedman should render a certain respect and help to his patron. Nature prohibits theft, and makes certain offences (e.g. adultery) disgraceful, while other offences are not necessarily base (turpia). So—and this is an interesting illustration of Roman sentiment—it is against Nature to contemplate the probability that a freeman may become a slave—although this is an event which may sometimes happen. One may refer either to this or to the preceding category the ascription to Nature of the principle that faith must be kept by a debtor, even where he has not bound himself in a formal way. (Is Natura debet quem iure gentium dare oportet, cuius fidem secuti sumus.)
One jurist only, Ulpian, gives a yet further sense to the term Law of Nature, making it cover those instincts and physical relations which other animals have in common with man, and which may be called the raw material upon which Custom acts1 . But this fancy of his, which appears now and then in other ancient writers2 , and received great attention in the Middle Ages because the passage was embodied in Justinian’s Institutes, is devoid of practical importance even for Ulpian’s own treatment of legal topics. It has been much ridiculed by the moderns, but has recently received a sort of reinforcement or illustration from an unexpected quarter. Mr. Darwin has suggested that the origin of our moral ideas is to be sought in the accumulated experience of animals, which in the course of long ages ripened, to some slight extent, in the higher species, and ultimately ripened far more completely in man, into the beliefs and usages which govern the life of primitive peoples, and out of which morality has been insensibly developed in comparatively recent times. Upon any such hypothesis the gap between man and other animals would become less wide, and a certain community might be ascribed to them with man in what may be called the rudimentary protoplasm of customary law.
In its practical applications, the idea of Nature or the Law of Nature, blent with the idea of Equity (for the two terms are in some departments, and in the mouths of many jurists, equivalent and interchangeable), extends itself over nearly the whole field of law. It supplements or modifies the relations of parents and children, of patrons and freedmen, and even of slaves, as these relations had been established by the ancient strict law of Rome. A slave is to ius civile merely a thing, but a regard for Nature causes him to be treated as being in some respects a person. In the law of property, of inheritance, of obligations, and of procedure, a great many principles drawn from this source have been embodied in rules which qualify or supersede the rigour of the older law in most important points. It is only by examining these in detail that the skill, and tact, and sound judgement, which the Romans showed in working out the idea, can be duly appreciated. To enumerate them here would, however, be impossible: one might as well try to enumerate the numerous points in which Equity has affected and amended the common law of England.
Speaking broadly, the Law of Nature represented to the Romans that which is conformable to Reason, to the best side of Human Nature, to an elevated morality, to practical good sense, to general convenience. It is Simple and Rational, as opposed to that which is Artificial or Arbitrary. It is Universal, as opposed to that which is Local or National. It is superior to all other law because it belongs to mankind as mankind, and is the expression of the purpose of the Deity or of the highest reason of man. It is therefore Natural, not so much in the sense of belonging to men in their primitive and uncultured condition, but rather as corresponding to and regulating their fullest and most perfect social development in communities, where they have ripened through the teachings of Reason1 . But if any disciple of Bentham, looking not at the sonorous language occasionally used to describe its origin, but at its practical applications, calls it the expression of good sense and good feeling, the law which springs from an enlightened view of Utility, he will not be far wrong, as indeed the idea of practical convenience is frequently associated with those of Nature and Reason in the Roman texts2 . A modern precisian might say that the Romans ought to have called it not ‘the Law of Nature,’ but ‘materials supplied by Nature for the creation of a law,’ a basis for law rather than the law itself. To the Romans, however, such a criticism would probably have seemed trivial. They would, had the distinction been propounded to them, have replied that they knew what the critic meant, and had perceived it already; but that they were concerned with things, not words, and having a practical end in view, were not careful about logical or grammatical minutiae.
This conception, or at any rate the attempt to apply this conception to Positive Law, would seem to be exposed to two dangers. One is that of wasting time and pains in hunting for those institutions or rules which are most characteristic of man in the earlier stages of his progress, or which have been in fact most generally in vogue among men. This danger the Roman jurists completely avoided. Their Law of Nature had nothing to do with any so-called State of Nature, and they never troubled themselves about primitive man, leaving him to the poets and the philosophers. And though they talked of their ius gentium as roughly equivalent to their ius naturae, we do not find them endeavouring to support their view of what is reasonable and natural by instances drawn from such and such peoples who had adopted the rules they had themselves made part of their ius gentium1 . They are content to ascribe to ius gentium that which is so obviously reasonable and convenient that the general usage of mankind approves it, such as the principle that the shores of the sea are open to the common use of all (a principle which, however, English and Scottish law have never fully admitted), the principle that a thing which has no owner becomes the property of the finder, the principle that a debtor ought to pay his debts. Redde quod debes aequissima vox est, et ius gentium prae se ferens.
The other danger is that the idea of Nature, as the true guide to the making and interpreting of law, may lead to speculative vagueness, and that the identification of Nature with Morality may tempt the legislator or the judge into efforts to enforce by law duties best left to purely moral sanctions. This danger also the Romans escaped. They escaped it by virtue of their eminent good sense and their practical training. The lofty precepts of morality which they were fond of proclaiming, and which they sometimes declare it to be the duty of the lawyer to teach and of the magistrate to apply, had after all not much more to do with the way in which they built up the law than the flutings of the columns or the carvings on the windows have to do with the solid structure of an edifice. These decorations adorned the Temple of Justice, but were never suffered to interfere either with its stability or with its convenience for the use of men. In point of fact, the rules of Roman law, down to the age of Constantine, whose successors, wanting the sage advisers of an earlier day, tried some foolish experiments, furnish a model of the way in which moral principles should be applied to positive law. Though the Romans did not in theory draw any very clear line between the sphere of law and that of morals, they succeeded admirably in practice in keeping their moral zeal on the safe side of the line which divides the standard of conduct which the State may, and that which it had better not, try to enforce; while they certainly did impart to the law as it left their hands a spirit of honour, good faith, and equitable fairness which modern systems have never surpassed, and which is in some respects higher than that of our own English law.
The Roman jurists of the first three centuries of the Empire were a unique phenomenon in the history of mankind, and they had a unique opportunity. They were at once the makers, the expounders, and the appliers of law. They worked for the whole civilized world. They were hampered by no meddlesome legislatures, for legislatures did not exist, and hardly at all by capricious monarchs, for the good Emperors encouraged them, while the voluptuaries, as well as the unlettered soldiers, left them alone. Their only restraint was that useful and necessary one which dwells in the deference of the wise for one another, and in the respect of the leaders of a great profession for the opinion of the profession as a whole. They were not indeed philosopher-kings in Plato’s sense, but they were sufficiently imbued with the spirit of philosophy to value principle and to rise superior to prejudice. Accordingly they were able to do a work which has been of inestimable value for all time, since it has become, like the philosophical ideas of the Greeks and the religious ideas of the Semites, part of the common heritage of mankind. Rome is the only city to which it has been given to rule the whole of the civilized world, once as a temporal, once as a spiritual power. In both phases she welded the diverse and incongruous elements into a united body, whose elements, even when they had again been disjoined, retained traces of their former union. And on both occasions it was largely through law that she worked, the ecclesiastical law of her later period being an efflux of the civil law of her earlier.
We have now traced the origin and growth of the conception of a Law of Nature in the ancient world, and have perceived how, having taken shape and received an ethical colour among the Greeks, it was turned to practical account by the Romans. It was not to them, as it has often been deemed by recent English writers, a purely negative and barren conception, nor was it wholly a destructive, and, if the expression may be permitted, a ground-clearing conception. Doubtless a large part of its work was done in first undermining and finally overcoming the traditional authority of the old peculiar and usually cumbrous Law of the City (ius quiritium), which was often harsh and sometimes arbitrary. Another part was done in explaining old rules so as to amend their operation. But the conception of Nature as a source of Law was also a corrective and expansive force, not merely in sweeping away what had become obsolete, but also in establishing what was new and suited to the time. It found a solid basis for law in the reason and needs of mankind, and it softened the transition from the old to the new, first by developing the inner meaning of the old rules while rejecting their form, extracting the kernel of reason from the nut of tradition, and secondly by appealing to the common sense and general usage of mankind, embodied in the ius gentium, as evidence that Nature and Utility were really one, the first being the source of human reason, the latter supplying the grounds on which reason worked. Thus the idea of Nature, coupled with that of customs generally observed by mankind, which embodied their experience, became a fertile and creative idea, which turned the law of a city into the law of the world, and made it fit to be a model for succeeding ages.
The Law of Nature in the Middle Ages.
When the succession of Roman jurists as a professional class came to an end, and the level of culture in the whole community declined in Western Europe after the destruction of imperial power in the Western provinces, the ecclesiastics, among some of whom a tincture of legal knowledge remained, naturally identified the law of Nature with the law of God. We have this clearly expressed in the passages from Isidore of Seville (who wrote early in the seventh century) which obtained immense circulation and influence by being incorporated (in the twelfth century) in the introductory paragraphs of the Decretum of Gratian, the oldest part of the collected Canon Law. Isidore says1 : ‘All laws are either divine or human. The divine rest upon Nature, the human upon custom; and the latter accordingly differ among themselves, because different laws have pleased different nations.’ Gratian himself, in the paragraph preceding, says: ‘Mankind is ruled by two things, natural law and customs. Natural Law is that which is contained in the law and the gospel, whereby every one is commanded to do to another that which he would have done to himself.’ This identification, already suggested by the Stoics and by some of the Roman jurists themselves2 , was inevitable as soon as Christianity appeared on the scene. St. Paul, as we have seen, recognized a law written by God on men’s hearts; St. Augustine speaks of the Eternal Law which governs the City of God. Nature—that is to say the Power that rules all things, the Force that is in all things—is, to a Christian, God; as St. Chrysostom says, ‘when I speak of Nature I mean God, for it is He who has made the world3 .’ The idea receives its final expression in Dante’s identification of the Divine Love with the Force that pervades the universe—
Accordingly the scholastic philosophers posit a Law of Nature as being the work of God. St. Thomas of Aquinum introduces a useful distinction which exercised an enduring influence. The Eternal Law which governs all things is the expression of the Reason of God, the supreme Lawgiver. That part of it which is not revealed, but is made known to man by his own reason, may fitly be called Natural Law, as being the outcome of human reason, itself created and directed by the Divine Reason. Thus the sharing in the Eternal Law by a rational creature is Natural Law1 . And so Suarez says that the Law of Nature is in God the Eternal Law, and in men is the light which carries this eternal law into their souls, being applied by conscience.
I cannot here pursue an inquiry into the treatment of these notions by the scholastic theologians and philosophers, nor by their successors who belong to the school of the Catholic Renaissance in the sixteenth century, for the subject is a vast one. Neither have I space to deal with the students and teachers of the Roman Law during the thirteenth, fourteenth, and fifteenth centuries, of whom however it may be said that Natural Law has in their pages a less definite character than it bore to the ancient jurists, and is more coloured by that ethical atmosphere which they found in the treatment of it by Cicero and Aristotle and by such ecclesiastical authorities as Gratian and St. Thomas. It was during these centuries less widely and effectively used in the sphere of pure law than in those of speculation and actual political controversy. In these latter spheres it played a great part, being appealed to by the advocates as well of imperial as of papal pretensions, the one side claiming its support for the temporal, the other side for the spiritual potentate. All admitted that it stood above both these powers, and some maintained that where either power transgressed it, he might be lawfully resisted by his subjects2 . Now and then princes put it forward as a ground for legislation. Philip the Fair of France, proposing to liberate serfs, says (ad 1311) that ‘every human creature formed in the image of Our Lord ought by natural law to be free.’ Now and then a jurist specifies matters in which it limits the legislator’s power, as Baldus says, neither Emperor nor Pope could validly authorize the taking of usury1 . But one can hardly say that the idea emerges as an independently formative power in the growth either of the Canon Law in Europe, or of the law of Islam in the East, for the obvious reason that ecclesiastical systems do not need it. The Bible in Christendom, the Koran where Islam ruled, supplied all the philosophical basis and all such indications of the Divine Will as were needed to give law a moral character. So, although the term is indeed frequently used by mediaeval writers of all types, it is generally used with a theological or ethical bearing. Nature, except in such a sense as was given to it by St. Paul, or in such expressions as were sanctioned by Aristotle or by the texts of the jurists, would have sounded strange, and might have savoured of heterodoxy. As the Chancellor says in the second part of Goethe’s Faust—
Yet throughout this period the place which this conception holds and the function which it discharges in the world of thought, if not in that of practice, are of high import. It is an assertion of the supremacy of the eternal principles of morality, of the duty of princes to obey those principles, of the right of citizens to defend them, if need be even by rebellion or tyrannicide. It proclaims the responsibility to God of all power, whether spiritual or temporal, and the indestructible rights of the individual human being. Finding in the Divine Justice the ultimate source of all law, it imposes a restraint upon the force which positive law has at its command, and sets limits to the validity of positive laws themselves. Whether or no the individualistic spirit of the Teutonic races contributed to this remarkable change from the attitude of the Roman lawyers is a question I will not attempt to discuss. But it is clear that the influence of Christian teaching had, even under a dominant and persecuting ecclesiastical system, stimulated the vindication in the name of Natural Law of principles which are the foundation both of civil and of religious liberty.
The Law of Nature in Modern Times.
When the European mind, stimulated by Greek literature and by the ecclesiastical revolt of the sixteenth century, as well as by a group of coincident external causes, began to play freely round the great subjects of thought, a still wider career opened for this ancient conception. The history of that career, however, belongs to the domain of philosophy and of political science rather than to that of jurisprudence. Though it was chiefly from the Roman texts that the men of the Renaissance and Reformation eras drew their notions of Nature and natural law1 , and though the term ius gentium reappears as indicating the recognition of Natural Law by mankind at large, the speculations which these notions inspired turned largely upon such questions as the origin of law in general, a point which, as already observed, had not much occupied the Romans, and (still more) upon the source of authority and political power, and on the right of any constituted authority to demand obedience. The systems of the Middle Ages, which deduced the powers of the Pope from Christ’s words to St. Peter, and the powers of the Emperor either directly from God or mediately through the Pope, and which found the source of all other spiritual and temporal power in some sort of delegation from one or other of these potentates, had now vanished, and thinkers were much concerned to find a new and sounder foundation on which to plant the Monarch and the State. Thus Nature came to play a new part: and presently there appeared theories regarding an original State of Nature, a conception not necessarily connected with that of the Law of Nature, yet one which has historically been closely associated therewith. This newly-invented State of Nature was neither the Golden Age of Hesiod, nor the Saturnia regna of Virgil, nor the brutish savagery (mutum et turpe pecus) of Horace. The man of the State of Nature was highly intelligent, and he was also highly self-assertive. In Hobbes he appears as in perpetual war with his fellows1 ; and that ingenious and uncompromising philosopher finds in this fact the basis of his theory of the State, holding that men, in order to get rid of their distracting strife, agreed with one another to surrender all their natural rights to get what they can for themselves by force into the hands of a Monarch, who thereby acquired a perpetual title to the obedience of all; the contract, since not made with him, being nowise dissoluble in respect of any misfeasance on his part. Locke, on the other hand, argues for a Natural Law which issues from Reason, is prior to all governments, and being superior to them entitles men to vindicate their natural rights against tyranny. With him, therefore, as with most thinkers of the seventeenth and eighteenth (and indeed also of earlier) centuries, Natural Law, being the offspring of Reason and the foundation of Natural Rights, is the ally of freedom. It is invoked, under the name of Natural Right, by the framers of the Declaration of Independence in 1776, and therewith enters the field of modern politics as a conqueror. Contemporaneously the doctrine was being spread over the Old World by Rousseau in his theory of the State of Nature and the Social Contract (first published in 1762): and it presently became the basis of the Declaration of the Rights of Man made by the French Convention in 1789.
The old theory had now developed into a destructive political force. Any one can see to-day that this revolutionary quality was always latent in it: the singular thing is that, unlike most revolutionary ideas, it should have kept the explosive element so long dormant. That which had been for nearly two thousand years a harmless maxim, almost a commonplace of morality, became in the end of the eighteenth century a mass of dynamite, which shattered an ancient monarchy and shook the European Continent. Liberty, Equality, Fraternity, are virtually implied in the Law of Nature in its Greek no less than in its French dress. They are even imbedded in the Roman conception, but imbedded so deep, and overlaid by so great a weight of positive legal rules and monarchical institutions as to have given no hint of their tremendous possibilities.
Let us return from this glance at the political history of the conception to note three directions in which it has acted, in modern times, within the sphere of law proper.
The first of these is its action upon the law of England. Our system of Equity, built up by the Chancellors, the earlier among them ecclesiastics, takes not only its name but its guiding and formative principles, and many of its positive rules, from the Roman aequitas, which was in substance identical with the Law of Nature and the ius gentium. For obvious reasons the Chancellors and Masters of the Rolls did not talk much about Nature, and still less would they have talked about ius gentium. They referred rather to the law of God and to Reason. But the ideas were Roman, drawn either from the Canon Law, or directly from the Digest and the Institutes, and they were applied to English facts in a manner not dissimilar from that of the Roman jurists. The very name, Courts of Conscience, though the conscience may in the immediate sense have been the King’s, suggests that moral element on which the Romans insisted so strongly; and the wide, sometimes almost too wide, discretionary power which Equity judges exercised, finds its prototype in the passages in Roman texts which refer to natural equity as the consideration which guides the judge in qualifying, in special cases, the normal strictness of law. A passage in the remarkable little book called Doctor and Student, written by Christopher St. German early in the sixteenth century, observes that the term ‘Law of Nature’ is not much employed by English common lawyers, who generally prefer (it is remarked) to talk of the Law of Reason, and to say that such and such a rule is grounded in reason, or that reason points to such and such a conclusion. Nevertheless the author recognizes the Law of Nature or Reason as one of the three departments of the Law Eternal or Will of God, which is made known to man partly by Reason, partly by Divine revelation in the Scriptures, partly by the orders of princes or of the Church, having an authority derived from God. Some (it is added) say that all the law of England is part of the law of Reason; but St. German prudently doubts whether this can be proved. However, we have here another evidence of the influence of the old conception, and even, in the reference to a general Law of Nature shared in by unreasonable creatures (‘for all unreasonable creatures live under a certain rule to them given by Nature, necessary for them to the consideration of their being’), a recurrence of the old notion countenanced by Ulpian, that the Law of Nature extends to the lower animals as well as to mankind. Nor are dicta of English judges referring to the Law of Nature wanting. Yelverton, under Edward the Fourth, says that in the absence of authority the judges ‘should resort to the Law of Nature which is the ground of all laws.’ And the law merchant, i.e. the customs commonly observed by traders of divers countries, is referred to as part of the Law of Nature by Lord Chancellor Stillington in the same reign1 . Here we have the old identification of ius naturae and ius gentium which was beginning in Cicero’s days. Still later, the idea reappeared in the doctrine that as the Law of Nature is the foundation of all law, positive enactments plainly repugnant to it or to Common Right and Reason (an equivalent expression) ought to be held invalid. Dicta to this effect were delivered by Lord Coke and by Lord Hobart, and were approved by Lord Holt; though little (if any) effect has ever been given to them. Similar references to the ‘eternal principles of justice’ as capable of overruling the acts of State legislatures may occasionally be gleaned from the reports of cases decided by American State Courts. Blackstone, repeating Cicero, declares that ‘the Law of Nature is binding over all the globe in all countries: no human laws are of any validity if contrary to this2 ’; and he ascribes to ‘natural reason and the just construction of law3 ’ the extension which his contemporary, Lord Mansfield, gave to the enforcement of implied contracts3 . So we find the Indian Civil Procedure Code of 1882 laying down that a foreign judgement is not operative as a bar if it is, in the opinion of the Court which deals with the question, ‘contrary to natural justice.’ But the chief practical applications in recent times of the ancient conception have, very appropriately, arisen where European judicial administration has been brought into contact with foreign semi-civilized peoples on whom the law of their European conquerors could not properly be imposed. Thus in British India the Courts have been directed to apply ‘the principles of justice, equity, and good conscience1 ’ in cases where no positive law or usage is found to be applicable.
The second line of action is the part which the terms ius naturae and ius gentium played in the creation of International Law. That branch of jurisprudence has a twofold origin. It is due partly to customs which grew up among maritime nations in the course of trade, together with the usages and understandings which formed themselves in the diplomatic intercourse of States, partly to the doctrines thought out and delivered by a succession of legal writers, of whom the most famous are Hugo Grotius, Albericus Gentilis, Leibnitz, and Puffendorf. These thinkers, finding that large parts of the field of international relations were not covered by pre-existing custom, or that the existing customs were often discrepant, were obliged to seek for some general and permanent basis whereon to build up a system of positive rules. This basis could not be looked for in the laws of any State or States, because no such laws could have force beyond the limits of those States, and that which was needed was something which all States were to observe. Neither could it be expressly deduced from the Imperial Roman law, because the Romano-Germanic Empire had become a mere shadow of its former self, and the old Roman law, being the law of a State (though a World-State), did not contain all the necessary materials, not to add that anything imperial was in the earlier part of the seventeenth century regarded with suspicion by Protestants. Accordingly, Grotius and his successors recurred to the Law of Nature as being, according to the theory of the ancient Roman jurists, a law grounded in reason and valid for all mankind. They used it copiously, and some of them called their writings ‘Treatises on the Law of Nature and of Nations,’ using the old phrase ius gentium1 in what began to be taken as a new sense2 . It was indeed their wish to represent this Law of Nature as being essentially a Law for the Nations, i.e. a law governing the intercourse of nations. There had in fact been always a close connexion between the two conceptions. For although the Roman jurists of imperial times had employed the term ‘Law of the Nations’ to denote, not the law applicable between nations, but a part of the law which was applied within the Roman dominions, still they had held their ius gentium to have been not only created by the customs of the nations of the world, but therewith also binding on nations generally, and to be indeed (save in some special points) a concrete embodiment of the law which Natural Reason gives to all mankind. Thus the name ‘Law of Nature and Nations’ became well settled; and it is only in our own days that the more precisely descriptive (if not quite satisfactory) term ‘International Law’ has, in superseding the older name, acquired a general acceptance.
Thirdly, the expression Law of Nature has, within comparatively recent times, obtained in Germany, France, and Italy, the meaning of the Philosophy of Law, that is to say, the metaphysical basis of legal conceptions and of the most general legal doctrines. Some observations will be found elsewhere in this volume1 upon this Naturrecht or Droit Naturel, to which much labour and thought have been devoted by Continental writers, though very little by those of England or of the United States. Whatever value the works of these writers may have for metaphysics or ethics, they shed comparatively little light upon law in its proper sense. The study of Law in general seems nowadays likely to be practically useful chiefly on its concrete side, as what the Romans call a ius gentium, that is to say, as a collection and examination, a criticism and appraisement of the rules adopted by civilized nations on topics with which the legislation of all or most of such nations has to deal. In other words, Comparative Jurisprudence promises more fruit than abstract speculation on the foundations of law.
Except from the lips of the Continental theorists just referred to, we now seldom hear the term Law of Nature. It seems to have vanished from the sphere of politics as well as from positive law. A phrase which was, in the eighteenth century, a potent source of inspiration to some and a tocsin of alarm to others, is not now invoked by either of the two schools of thought which condemn, or seek to overthrow, existing institutions. The Social Democrats do not appeal to Nature, perhaps because they have realized that there never was a state of society in which all property was held in common by large organized communities, and perhaps also because they feel that so complex a system as they desire could not well be described as natural. Anarchists do not appeal to the Law of Nature, because their quarrel is with law altogether, and those among them who are educated enough to desire to find a philosophical basis for their doctrines are also educated enough to feel and honest enough to admit that history, which knows to-day far more about primitive man than she did a century ago, would afford no such basis in any state of nature she could possibly set before us.
Nevertheless the notion sometimes appears, and properly appears, in unexpected places. The British Order in Council for Southern Rhodesia, of October 20, 1898, directs the Courts of that territory to be ‘guided in civil cases between natives (i.e. Kafirs) by native law, so far as that law is not repugnant to natural justice or morality, or to any Order made by Her Majesty in Council.’
Whether this time-honoured conception has or will hereafter have any practical value for the modern world is a further question, but one for conjecture rather than discussion. We have seen what good work it did for the ancient world in breaking down race prejudices, and in particular for the Roman jurists in giving them a philosophical ideal towards which they could work in expanding and refining the law of the Empire. Nor should we forget that in later times it has sometimes stimulated resistance to oppression, and has corrected the tendency, always present among lawyers and in a ruling class, to defer unduly to tradition and to defend institutions which have become incompatible with reason, and hurtful to the common interest. This kind of work may not seem to be needed from the old idea in our own times. There is not much risk, either in Europe or in North America, that tradition will check reform, or that institutions will be respected and maintained merely because they exist. But our planet may expect, even according to the most pessimistic physicists, to last for millions of years. Who can say that an idea so ancient, in itself simple, yet capable of taking many aspects, an idea which has had so varied a history and so wide a range of influence, may not have a career reserved for it in the long future which still lies before the human race?
[1 ]The term has been extended from material phenomena to those dealt with by other sciences, such as economics and philology (e.g. laws of supply and demand, ‘Grimm’s law’).
[1 ]He who steals, breaks the law and may or may not be discovered or punished: he who puts his finger in the fire finds in the pain he suffers the operation of the regular sequence of physical phenomena.
[2 ]There is a passage in a Constitution of the Emperors Theodosius, Arcadius, and Honorius (Cod. Theod. Bk. xvi, Tit. x. 12) in which the term ‘laws of Nature’ is used in a sense which seems to come near the modern one. Forbidding any one to sacrifice victims or consult the ‘spirantia exta,’ the Emperors, after threatening punishment as in the case of treason, proceed to say, ‘Sufficit ad criminis molem naturae ipsius leges velle rescindere, inlicita perscrutari, occulta recludere, interdicta temptare.’ The expression may however mean nothing more than that it is impious to tamper with the principles which keep the secrets of nature from men’s eyes. But in any case it is used in a sense different from that of the moral law which the ancients conceived to have been set by nature.
[1 ]The famous dictum which Herodotus quotes from Pindar, ‘Custom is the king of all mortals and immortals,’ is quoted to show how usage makes a thing seem right to one people and wrong to another, but it was afterwards often taken in the sense of an assertion of the supremacy of Law over all things. Cf. Herod. iii. 38, and Chrysippus, apud Marcian in Justinian’s Digest, i. 3. 2.
[1 ]Soph. Antig. l. 450; Oed. Tyr. l. 865.
[2 ]Rom. ii. 14, 15, where ‘hearts’ is probably to be taken in the ancient sense, which regards the heart and not the brain as the seat of the intellect. Cf. also Rom. i. 20, ‘For the invisible things of God from the creation of the world are clearly seen, being understood by the things that are made, even his eternal power and Godhead, so that they are without excuse.’
[1 ]Xen. Memor. iv. 4, 15 sqq. θεοὺς οἱ̑μαι τοὺς νόμους τούτους τοἀ̑ς ἀνθρώποις θει̑ναι. These words are put into the mouth of Hippias, but are part of the argument which Socrates conducts.
[2 ]Eth. Nicom. v. 7.
[3 ]Rhet. i. 10 and 13: Δέγω δὲ νόμον τὸν μὲν ἴδιον τὸν δὲ κοινόν, ἴδιον μὲν τὸν ἐκάστοις ὡρισμένον πρὸς αὑτούς, καὶ του̑τον τὸν μὲν ἄγραϕον τὸν δὲ γεγραμμένον, κοινὸν δὲ τὸν κατὰ ϕύσιν. Ἔστι γάρ, ὃ μαντεύονταί τι πάντες, ϕύσει κοινὸν δίκαιον καὶ ἄδικον, κἂν μηδεμία κοινωνία πρὸς ἀλλήλους ᾐ̑ μηδὲ συνθήκη.
[1 ]Against Aristocrates, 639.
[2 ]Epicurus described Natural Justice as an agreement made for the sake of common advantage: τὸ τη̑ς ϕύσεως δίκαιον ἔστι σύμβολον του̑ συμϕέροντος εἰς τὸ μὴ βλάπτειν ἀλλήλους μηδὲ βλάπτεσθαι (Diog. Laert. x. 150).
[1 ]Since this Essay was in type I have seen the article On the History of the Law of Nature, by Sir F. Pollock, published in the Journal of the Society of Comparative Legislation for Dec. 1900, and simultaneously in the Columbia Law Review, Jan. 1901; and am happy to find myself in substantial agreement with him upon all points of importance connected with the subject. Some branches of it, especially the Greek and mediaeval parts of the history of the idea, are treated of more fully by him, and the whole article is full of interest. Judicious remarks and useful quotations will also be found in Prof. D. G. Ritchie’s Natural Rights (published in 1895), Part i; and in Dr. Holland’s Elements of Jurisprudence, pp. 30-38 of ninth edition.
[2 ]A very minute and careful collection of the authorities regarding Ius Naturae and Ius Gentium may be found in the book of Dr. Moriz Voigt, Die Lehre vom Jus Naturale, aequum et bonum und Jus Gentium der Romer. I do not find myself always able to agree with his views, but they are stated with painstaking ability, and the citations have often aided me.
[1 ]In the days after the fall of the Roman Empire, however, different laws were applied to different sets of persons in the extra-European dominions of European States, e.g. the Roman law to the clergy and the provincial subjects, the barbarian law to barbarians. And the same thing happens now in countries where Europeans and Musulmans or semi-civilized tribes dwell side by side.
[2 ]Among some of the Greek cities, however, before they were engulfed in the Roman dominion, there had grown up a practice by which friendly commonwealths reciprocally extended certain civil rights to one another’s citizens.
[1 ]The word gens, though we commonly translate it ‘nation,’ was originally used to denote a clan or sept (e.g. Fabii, Julii), and always retained this as one of its meanings. Can this original sense have had anything to do with the earliest legal meaning of the term? One is tempted to conjecture that there might have been a sort of common law of the gentes, recognized in contradistinction to the law of each gens, but when we find the term in the time of Cicero, it has the sense mentioned in the text, and I do not know of any facts supporting such a conjecture. So far back as one can go ius Quiritium is the term applied to the law of the city as a whole.
[2 ]Though ius gentium is sometimes the term used to describe those usages which as being common to all men were in fact observed by States in their relation to one another; cf. Sallust, Jug. c. 35; Livy, i. 14; v. 36. Obviously the rules which all nations recognize would be those which they would apply in their dealings with one another.
[3 ]See the article Ius Gentium in Professor H. Nettleship’s Contributions to Latin Lexicography. He thinks the term had become a popular one before the time of Cicero.
[1 ]See Essay II, pp. 97-101.
[1 ]See as to this Essay XIV, p. 707. Thus Praetor-made law, ius honorarium, very largely coincides with and covers the field of ius gentium, but the two are by no means identical. The actio Publiciana, for instance, belonged to the former, but not (except so far as natural equity suggested it) to the latter. So in Digest xvi. 3, 31 ‘merum ius gentium’ is opposed to ‘praecepta civilia et praetoria.’
[2 ]‘Itaque maiores aliud ius gentium, aliud ius civile esse voluerunt. Quod civile, non idem continuo gentium, quod autem gentium, idem civile esse debet’ (De Off. iii. 17. 69).
[3 ]Orat. Partit. xxxvii. 130.
[1 ]See especially the fragment of his De Republica preserved by Lactantius, Div. Inst. vi. 8, 7.
[2 ]Many writers have, however, thought that Cicero did mean to identify ius gentium and ius naturae, basing themselves on De Off. iii. 17, 69, and iii. 5, 23. Cf. also the words ‘lege . . . naturae, communi iure gentium’ in De Harusp. Respons. 15, 32, and ‘consensio omnium gentium lex naturae putanda est’ in Tusc. Disp. i. 13. The point is argued, at great length, by Voigt (op. cit. vol. i. pp. 65-75, 213-219, and Appendix II). Nor does Cicero quite precisely define the relation of his Laws of Nature to positive law. He writes rather as a moralist than as a jurist.
[1 ]There does not, however, seem to be any ground for the notion that the Roman lawyers ever despised ius gentium as only fit for inferior people; that they deemed it ‘an ignoble appendage to their civil law,’ as Sir H. Maine says. That this was ever their feeling is mere surmise. No traces of such a view appear in our authorities.
[2 ]Not, of course, in the Austinian sense that law is only what the State has expressly enacted, for the ancients always dwell upon custom (mores maiorum, consuetude inveterata, consensus utentium) as a chief source of law.
[3 ]Cic. De Rep. i. 32. 49.
[1 ]Gaius, Inst. i. 1; Dig. i. 1, 9.
[2 ]In Inst. Inst. i. 2, 2, taken from Marcian.
[3 ]Gaius, Inst. i. 1.
[4 ]Ulpian in Dig. i. 1, 1, 4.
[5 ]Marcian in Dig. xlviii. 19, 17.
[6 ]Gaius in Dig. xli, 1, 1, pr.
[7 ]Gaius, Inst. i. 1. The formal express and specific identification is to be found only in some jurists, and is most explicitly stated by Gaius. There does not, however, seem to be sufficient ground for thinking (as Voigt, op. cit., argues) that there was any real difference of opinion among them. Their language on these points is seldom precise.
[8 ]See p. 577, note 2, supra.
[1 ]Ulpian in Dig. l. 17, 32.
[2 ]Dig. i. 5, 4, § 1: cf. Inst. i. 5; Gaius, Inst. i. 52.
[3 ]The doctrine that slavery is against nature was older than Aristotle, who does not accept it. The orator Alcidamas (a contemporary of Socrates) said ἐλενθέρους ἀϕη̑κε πάντας θεός· οὐδένα δου̑λον ὴ ϕύσις πεποίηκεν. See W. L. Newman’s Politics of Aristotle, Introduction, p. 141.
[1 ]Sir H. Maine in Ancient Law. It will be seen that the view which he takes of ius gentium and ius naturae seems to me to be in several points at variance with the facts; but I need hardly say that no one feels more strongly than I do the value of the stimulus to English study and thought on these subjects which his fertile mind and brilliant treatment have given, and for which all subsequent writers must be grateful.
[2 ]Cf. Macrob. Saturn. i. 7; and Justin. Hist. xliii. 1, who says that not only slavery but also private property was unknown under the reign of Saturn, so great was his justice!
[3 ]Virg. Georg. ii. 539.
[1 ]There remained as aliens (1) the class called dediticii, the lowest species of freedmen, (2) persons deprived of citizenship as a punishment for crime, (3) foreigners, i.e. subjects of some other State temporarily resident in the Empire, and probably also persons imperfectly manumitted subsequently to the Edict, together (possibly) with the inhabitants of territories added to the Empire subsequently to the Edict. See Muirhead (Historical Introduction to the Private Law of Rome, 2nd edition, by Professor Goudy, p. 319), and, for a fuller discussion of the topic, Mitteis, Reichsrecht und Volksreckt in den ostlichen Provinzen des Römischen Kaiserreichs, chap. vi.
[1 ]‘Natural Law is that which Nature has taught all animals; for that kind of law is not peculiar to mankind, but is common to all animals. . . . Hence comes that union of the male and female which we call marriage; hence the procreation and bringing up of children.’
[2 ]As, for instance, in Pliny the Elder’s ascription to the lower animals of moral sentiments (Hist. Nat. viii. 5; viii. 16, 19; x. 52). Michael Drayton’s lines, of birds pairing in spring,—
hover between Ulpian’s ‘Law of Nature’ and the ‘Laws of Nature’ of modern science.
[1 ]This is, broadly speaking, the view of the Classical jurists. But occasionally, especially in late times, phrases are used which point to primitive societies as governed by the natural law: e.g. Novell. Inst. lxxxix. c. 12, § 5.
[2 ]So in a fragment preserved by Dositheus, a jurist of classical times says of ‘ius naturale vel gentium’—‘omnes nationes simillter eo utuntur: quod enim bonum et aequum est omnium utilitati convenit.’
[1 ]Although they sometimes dwell on the fact that an institution is to be found among all nations. So Gaius observes of Guardianship, ‘Impuberes in tutela esse omnium civitatium lure contingit, quia id naturali rationi conveniens est ut is, qui perfectae aetatis non sit, alterius tutela regatur; nec fere ulla civitas est in qua non licet parentibus liberis suis impuberibus testamento tutorem dare’ (Inst. i. 189).
[1 ]‘Omnes leges aut divinae sunt aut humanae. Divinae natura, humanae moribus constant, ideoque hae discrepant, quoniam aliae aliis gentibus placent. Fas lex divina est: ius lex humana. Transire per agrum alienum fas est, ius non est.’—Dist. Prima, c. i. ‘Humanum genus duobus regitur, naturali videlicet iure et moribus. Ius naturale est quod in lege et evangelio continetur, quo quisque iubetur alii facere quod sibi vult fieri et prohibetur alii inferre, quod sibi nolit fieri. Unde Christus in Evangelio “Omnia quaecunque vultis ut faciant vobis homines, et vos eadem facite illis. Haec est enim lex et prophetae.”’ Here the Sermon on the Mount is taken as stating the Law of Nature.
[2 ]Cf. the citation by Marcian, in Dig. i. 3, 2, of the dictum of Demosthenes (Adv. Aristog. p. 774) νόμος εὕρημα καὶ δω̑ρον θεου̑; and Justinian’s Institutes, i. 2, § 11 ‘Naturalia iura, quae apud omnes gentes peraeque servantur, divina quadam providentia semper firma atque immutabilia permanent.’
[3 ]ὅταν εἴπω τὴν ϕύσιν, Θεὸν λέγω, ὁ γὰρ τὴν ϕύσιν δημιουργήσας αὐτὸς ἔστιν.
[1 ]Summa Theologiae, prima secundae, Q. xciv. 2.
[2 ]On this subject see the authorities collected and luminously expounded by Professor Dr. Gierke in his Johannes Althusius, chap. vi.
[1 ]Gierke, ut supra. Baldus and other jurists declare that the Emperor ‘tenetur ratione naturali, cum ius naturae sit potentius principatu,’ and one goes so far as to hold him to be also bound by ius gentium. See Arthur Duck, De Usu et Authoritate Iuris Civilis, bk. i. chap. iii. § 12.
[1 ]The Romans had been content to derive law (see Essay X, p. 525) from the will of the people, whether expressed directly by legislation or tacitly by customs, and this doctrine continued to be enounced under the autocracy of Justinian much as it had been in Republican times.
[1 ]With Hobbes compare the view of Spinoza, Tractatus Theologico-Politicus, cap. xvi.
[1 ]I owe these references to Sir F. Pollock’s Essay in Columbia Law Review, already mentioned.
[2 ]Commentaries, Introd. § 2.
[3 ]Ibid. bk. iii. chap. ix.
[1 ]See on this subject Sir C. P. Ilbert’s Government of India, chap. vi. The expression ‘equity and good conscience’ in this connexion is as old as the Charter to the E. India Company of 1683; ibid. chap. i. p. 21.
[1 ]When he uses the phrase ius gentium, Grotius dwells on the fact that its force springs from the Will of the Nations which use it, and he observes that when it is ascribed to the will of all nations it is practically ius naturale, but that there is much of it which rests on the will, not of all, but only of many nations, since sometimes we find a ius gentium holding good in one part of the world which does not exist in other parts.
[2 ]Grotius, who (differing but little from the old schoolmen) defines the eternal and immutable Law of Nature as ‘dictatum rectae rationis, indicans actui alicui ex eius convenientia aut disconvementia cum ipsa naturali ratione inesse moralem turpitudinem aut necessitatem moralem, ac consequenter ab auctore naturae Deo talem actum aut vetari aut praecipi,’ distinguishes from it the more arbitrary laws of God (ius voluntarium) which God may change, whereas He cannot change His own Natural Law any more than He can make two and two anything but four. In another place he observes that Human Nature itself is the mother of natural law, and (through contract) great-grandmother of civil (= positive) law. ‘Naturalis iuris mater est ipsa humana natura, quae nos, etiamsi re nulla indigeremus, ad societatem mutuam appetendam ferret’ (here repeating Aristotle), ‘civilis vero iuris mater est ipsa ex consensu obligatio, quae cum ex naturali iure vim suam habeat, potest natura huius quoque iuris quasi proavia dici’ (Proleg. 9. 16). He had just before said, ‘Cum iuris naturae sit stare pactis, necessarius enim erat inter homines aliquis se obligandi modus, neque vero alius modus naturalis fingi potest; ab hoc ipso fonte iura civilia fluxerunt. Nam qui se coetui alicui aggregaverant, aut homini hominibusque subiecerant, hi aut expresse promiserant, aut ex negotii natura tacite promisisse intelligi, secuturos se id quod aut coetus pars maior, aut hi, quibus delata potestas erat, constituissent.’ His ius divinum voluntarium is divided into that part which was delivered by God to all mankind at the Creation, after the Flood, and at Christ’s coming, and that part which was delivered to Israel alone. It it therefore Revealed Law, and so different from the Law of Nature.
[1 ]See Essay XII.