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 subjects[75]. Now and then princes put it forward as a
ground for legislation. Philip the Fair of France, proposing to liberate
serfs, says (A.D. 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
usury[76]. 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_—
‘Natur und Geist! so spricht man nicht zu Christen:
Desshalb verbrennt man Atheisten.’
-----
Footnote 75:
On this subject see the authorities collected and luminously expounded
by Professor Dr. Gierke in his _Johannes Althusius_, chap. vi.
Footnote 76:
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.
-----
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.
VIII. 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 law[77], 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 fellows[78]; 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.
-----
Footnote 77:
The Romans had been content to derive law (see Essay X, p. 76) 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.
Footnote 78:
With Hobbes compare the view of Spinoza, _Tractatus
Theologico-Politicus_, cap. xvi.
-----
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 reign[79]. 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 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 this[80]’; and he ascribes to ‘natural reason
and the just construction of law[81]’ the extension which his
contemporary, Lord Mansfield, gave to the enforcement of implied
contracts[81]. 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
conscience[82]’ in cases where no positive law or usage is found to be
applicable.
-----
Footnote 79:
I owe these references to Sir F. Pollock’s Essay in _Columbia Law
Review_, already mentioned.
Footnote 80:
_Commentaries_, Introd. § 2.
Footnote 81:
_Ibid._ bk. iii. chap. ix.
Footnote 82:
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.
-----
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 gentium_[83] in what began to be taken as a new sense[84]. 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.
-----
Footnote 83:
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.
Footnote 84:
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 disconvenientia 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 is therefore Revealed Law, and so different from
the Law of Nature.
-----
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 volume[85] 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.
-----
Footnote 85:
See Essay XII.
-----
IX. CONCLUSION.
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?
XII
THE METHODS OF LEGAL
SCIENCE
Whoever, having heard the Roman law praised as a philosophical system,
enters upon the study of it, and peruses either the _Corpus Iuris
Civilis_ or the writings of modern German civilians, will presently find
himself asking, Where is the legal philosophy of the Romans to be found?
By which of them is the subject treated in the abstract? Where are those
general views on the nature and essence of law with which a
philosophical treatment of it ought to begin? And where is that theory
of the historical evolution and development of law which represents
another method of treating jurisprudence in a scientific spirit?