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 Nature[24]. 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 recompense[25].
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 apprehended[26]. 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—
‘Thou dost preserve the stars from wrong,
And the most ancient heavens by Thee are fresh and strong.’
-----
Footnote 24:
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’).
Footnote 25:
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.
Footnote 26:
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.
-----
Now let us turn to the phenomena of political society and see how the
conception works itself out in this field.
II. 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 another[27]. 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.
-----
Footnote 27:
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.
-----
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:—
οὐ γάρ τί μοι Ζεὺς ἦ ὁν κηρύξας τάδε
οὐδ’ ἡ ξύνοικος τῶν κάτω θεῶν Δίκη.
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:—
οὐ γάρ τι νῦν γε κἀχθές, ἀλλ’ ἀεί ποτε
ζῇ ταῦτα, κοὐδεὶς οἶδεν ἐξ ὅτου ᾿φάνη.
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 slumber[28].
-----
Footnote 28:
Soph. _Antig._ l. 450; _Oed. Tyr._ l. 865.
-----
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 another[29].’
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
-----
Footnote 29:
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.’
-----
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 mankind[30], 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 natural[31]. 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 (ἴδιος), settled
by each community for itself[32]. 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 force[33].
-----
Footnote 30:
Xen. _Memor._ iv. 4, 19 sqq. θεοὺς οἶμαι τοὺς νόμους τούτους τοῖς
ἀνθρώποις θεῖναι. These words are put into the mouth of Hippias, but
are part of the argument which Socrates conducts.
Footnote 31:
_Eth. Nicom._ v. 7.
Footnote 32:
_Rhet._ i. 10 and 13: Λέγω δὲ νόμον τὸν μὲν ἴδιον τὸν δὲ κοινόν, ἴδιον
μὲν τὸν ἑκάστοις ὡρισμένον πρὸς αὑτούς, καὶ τοῦτον τὸν μὲν ἄγραφον τὸν
δὲ γεγραμμένον, κοινὸν δὲ τὸν κατὰ φύσιν. Ἔστι γὰρ, ὃ μαντεύονταί τι
πάντες, φύσει κοινὸν δίκαιον καὶ ἄδικον, κἂν μηδεμία κοινωνία πρὸς
ἀλλήλους ᾖ μηδὲ συνθήκη.
The lines of Empedocles refer to what it seems strange to call a part
of Universal Law, the abstention from killing a living thing—τὸ μὴ
κτείνειν τὸ ἔμψυχον· τοῦτο γὰρ οὐ τισὶ μὲν δίκαιον τισὶ δ’ οὐ δίκαιον
ἀλλὰ τὸ μὲν πάντων νόμιμον διά τ’ εὐρυμέδοντος
αἰθέρος ἠνεκέως τέταται διά τ’ ἀπλέτου αὐγῆς. (_Rhet._ i. 13.)
Footnote 33:
_Against Aristocrates_, 639.
-----
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 it[34]. 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 fields[35].
-----
Footnote 34:
Epicurus described Natural Justice as an agreement made for the sake
of common advantage: τὸ τῆς φύσεως δίκαιον ἔστι σύμβολον τοῦ
συμφέροντος εἰς τὸ μὴ βλάπτειν ἀλλήλους μηδὲ βλάπτεσθαι (Diog. Laert.
x. 150).
Footnote 35:
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.
-----
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 important[36].
-----
Footnote 36:
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 Römer_. 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.
-----
III. 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 where 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) law[37]. 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 world[38]. 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.
-----
Footnote 37:
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.
Footnote 38:
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.
-----
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_)[39], not in the sense of law valid as between nations (what we
should call International Law[40]), but as being the common or general
law, just as the expression _nusquam gentium_ means ‘nowhere at
all[41].’ 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.
-----
Footnote 39:
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.
Footnote 40: