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
used[62], 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 free[63]
and war was unknown—
‘Necdum etiam audierant inflari classica, necdum
Impositos duris crepitare incudibus enses[64].’
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.
-----
Footnote 62:
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.
Footnote 63:
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!
Footnote 64:
Virg. _Georg._ ii. 539.
-----
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 A.D.,
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
world[65].
-----
Footnote 65:
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 Volksrecht
in den östlichen Provinzen des Römischen Kaiserreichs_, chap. vi.
-----
This may be one of the reasons why, in the constitutions of the Emperors
collected in the Codes of Theodosius the Second (A.D. 438) and of
Justinian (A.D. 534), constitutions the earliest of which date from
Hadrian, the term _ius gentium_ never occurs. It is frequent in the
_Institutes_ of Justinian (A.D. 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.
VI. 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 ascribed 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 acts[66]. But this fancy of his, which
appears now and then in other ancient writers[67], 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.
-----
Footnote 66:
‘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.’
Footnote 67:
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,—
‘And but that Nature by her all-constraining law,
Each bird to her own kind this season doth invite,’—
hover between Ulpian’s ‘Law of Nature’ and the ‘Laws of Nature’ of
modern science.
-----
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 Reason[68]. 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
texts[69]. 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.
-----
Footnote 68:
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.
Iust._ lxxxix. c. 12, § 5.
Footnote 69:
So in a fragment preserved by Dositheus, a jurist of classical times
says of ‘ius naturale vel gentium’—‘omnes nationes similiter eo
utuntur: quod enim bonum et aequum est omnium utilitati convenit.’
-----
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 gentium_[70]. 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._
-----
Footnote 70:
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 iure 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).
-----
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.
VII. 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 says[71]: ‘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 themselves[72], 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 world[73].’ The idea receives its
final expression in Dante’s identification of the Divine Love with the
Force that pervades the universe—
‘L’Amor che muove il sol e le altre stelle.’
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 Law[74].
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.
-----
Footnote 71:
‘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.
Footnote 72:
Cf. the citation by Marcian, in _Dig._ i. 3. 2, of the dictum of
Demosthenes (_Adv. Aristog._ p. 774) νόμος εὕρημα καὶ δῶρον θεοῦ; and
Justinian’s _Institutes_, i. 2, § 11 ‘Naturalia iura, quae apud omnes
gentes peraeque servantur, divina quadam providentia semper firma
atque immutabilia permanent.’
Footnote 73:
ὅταν εἴπω τὴν φύσιν, Θεὸν λέγω, ὁ γὰρ τὴν φύσιν δημιουργήσας αὐτὸς
ἔστιν.
Footnote 74:
_Summa Theologiae_, prima secundae, Q. xciv. 2.
-----