PART I
A SURVEY OF THE DEVELOPMENT OF NATURAL LAW DOCTRINES
CHAPTER I
ANCIENT AND MEDIAEVAL NATURAL LAW THEORIES
THE conviction that there are superior principles of right, or higher laws to which the ordinary civil rules made by man must conform and which necessarily place limits on the operation of such rules, is one of the most persistent ideas in the evolution of legal thought. There have been times when the import of higher law concepts has been discredited or their directive force in legal growth has been concealed by a different terminology. But legal ideas have seldom been free from superior law influences. Though the significance of this conviction in the growth of systems of law has been examined frequently by exponents or critics of natural law theories, the consideration of the ideas therein involved never ceases to be of interest. Current tendencies in the legal thought of Europe and of America render it appropriate to review once more certain applications of these higher law concepts, and to consider their purport in giving direction to various processes of modern legal adjustments. Only some representative uses of these ideas in Europe may be considered as a basis for comparison and contrast with their pervasive applications in the public law of the United States. The best-known and most influential form of the higher law doctrines centers around the term "natural law" or "law of nature."[1]
1. Graeco-Roman Concepts. Few terms in the history of law have had such a variety of meanings as the "law of nature" or "natural law." This phrase is not only used differently by writers in the same period but is also not infrequently employed in either a confused sense or with varying connotations by the same writer.[2] And, as with most legal expressions, it has conveyed divergent ideas in various stages of legal history. Because of the variety of meanings attributed to the term, efforts have often been made to discredit its use and to discard references to it in relation to legal phenomena. Thereby it was thought clear thinking might be facilitated. It remains to be seen whether such efforts have attained the desired object. A summary of some of the more common uses of this term forms a necessary background for a consideration of the modern revival of natural law thinking.
There have been times when the term "law of nature" has been thought of as comprising a customary law of divine origin. Such a divine origin of law tended in early Greece to foster a distinction between laws which were fundamental as in accordance with nature or ancient custom, and the conventional rules resulting from ordinary human enactments.[3]
The historical background of natural law concepts has been so frequently analyzed that it seemed unnecessary to attempt to retrace it again, and it is not the purpose of this study to treat in detail the evolution of such ideas. A succinct summary will indicate the stages through which natural law concepts have passed since the time of the Greeks.
The distinction between the laws made by man and laws which are in accordance with nature or of divine origin may be traced in the works of many Greek writers.[4]
Throughout much of Greek thought there was a contrast between fusiV (or phusis) — a process of growing in the physical sense, and nomoV (or nomos) — man's formulation of rules regarding such growth.[5] Early Greek philosophers speculated chiefly about the physical universe, but the Sophists directed attention toward the state and its relations to individuals.[6] With the Sophists the man-made nomoi were likely to be contrasted with the universal laws emanating from the gods.[7] Sophocles, who refers at various times to the notion of higher laws, has Antigone say, in defence of the charge that she had wilfully disobeyed the king's orders:
"Nor deemed I that thy decrees were of such force, that a mortal could override the unwritten and unfailing statutes of heaven. For their life is not of today or yesterday, but for all time, and no man knows when they were first put forth."[8]
The distinction between natural law, which is universal and divine, and positive law, which is local and human, is attributed to Hippias by Plato in the Protagoras.[9] As politics and ethics were to the Greeks nothing more than two phases of the same formula it was to be expected that chief interest would be manifested in the ethical phases of the natural law concept. The Greek idea of law being primarily "a coherent interpretation and reasoned revision of custom" it was inevitable that principles and rules of reason should predominate in this interpretation.[10]
Aristotle put the distinction between fundamental and ordinary laws into a standard formula which has greatly influenced subsequent legal thought. To Aristotle justice was either natural, as in accordance with nature, and hence universal; or local and conventional, as applicable to a particular place.[11] The higher law, as Aristotle conceived it, was unwritten, universal, eternal and immutable, and in accordance with nature. He divided law into that which is common, being in accordance with nature and in force everywhere, and that which is peculiar to each separate community. When an advocate was pleading a cause and found the positive law was against him, Aristotle suggested that he might then appeal to the law of nature as rendering the act void.[12] Thus a basis was laid in philosophic thought for a dualism between the customary, natural, and universal in law, and the local, conventional, and ordinary enactments of a separate group of men. It was this dualism to which mediaeval thinkers recurred when they sought to contrast the natural and divine laws with the civil laws of a particular time and place, and to which later jurists have turned when some standard was sought to test the value or efficacy of existing positive laws.
The Greeks perceived rather vaguely the ideal of fundamental laws as now understood and they instituted a unique plan for the guardianship of such laws. This was in the form of an action against the proponent of a measure or an action to secure annulment of the act. If the action was instituted within one year of the enactment of the law, proceedings could be brought against the proponent of the measure, but if instituted later the process applied only to the annulment of the law. The action might be brought "for infringement of legal rules, neglecting forms of procedure or some regulation bearing on the legislative process."[13] In their efforts to establish a rule of law based on the ancient customary rules the Greeks regarded certain laws of such permanence that it was a matter of serious public concern to change them.[14] The idea of the sovereignty of law was one of the fundamental principles of Greek thought;[15] it prevailed widely during the Middle Ages; and it was transmitted to modern times in the form of theories of the supremacy of law or of the reign of law.
Though the Greeks were among the first to formulate ideas of natural law the Romans made more use of such theories and put their views along this line into more enduring forms. The first indications of the application of this concept are to be found in the work of the praetors. In the development of a law relating to the commercial dealings between citizens and aliens, where formerly only the principle of bona fides or good faith prevailed, the praetor peregrinus gradually built a legal system based on reason and common sense.[16] The praetor, by means of the edict and through his right to refuse an action worked out an equitable law — the jus gentium — which tended to displace the rigors of the jus civile.[17] It was in this connection that the doctrine of jus naturale became associated with the growth of the Roman law. Though jus naturale was seldom used in this period of Roman law the term served to give sanction to the jus gentium as a universal system of law which was gradually superseding the jus civile.[18] Thus principles of natural law or natural justice found their expression in the hands of the judge and the practical administrator rather than in the writings of political philosophers. It is interesting to see that at times when legal thinkers attached little weight to such principles they formed convenient sources for the extraction of new legal ideas by those who found the law too harsh and too formalistic in its applications.
As the Roman law developed into a coherent system the three main sources of its growth were legislation, administrative edicts, and juristic reasoning. It was in juristic reasoning that natural law concepts were extensively used, for the authority of the opinions of the jurists in their responses depended upon the reasonableness of their comments.
As a basic concept for a jus gentium or universal law, natural law was extensively applied in connection with the Stoic philosophy and with the application of Stoic principles in the Roman law.[19]
Zeno, the founder of Stoicism, has a remarkable passage extolling natural law as the eternal and universal law of God governing and directing all things. The Stoics emphasized the ethical side of Aristotle's conception of natural justice and considered it as a guiding principle immanent in the universe. This immanent principle was reason and its expression was natural law.[20] To Cicero, who became an advocate of Stoic doctrines, the law of nature became the source and limit of all rights.[21] The best exposition of Cicero's view is as follows:
Of all these things respecting which learned men dispute there is none more important than clearly to understand that we are born for justice, and that right is founded not in opinion but in nature. There is indeed a true law (lex), right reason, agreeing with nature and diffused among all, unchanging, everlasting, which calls to duty by commanding, deters from wrong by forbidding.... It is not allowable to alter this law nor to deviate from it. Nor can it be abrogated. Nor can we be released from this law either by the senate or by the people. Nor is any person required to explain or interpret it. Nor is it one law at Rome and another at Athens, one law today and another hereafter; but the same law, everlasting and unchangeable, will bind all nations and all times; and there will be one common lord and ruler of all, even God, the framer and proposer of this law.[22]
To Cicero civil laws were merely the application of this eternal natural law. He also emphasized the natural equality of men in contrast with the Aristotelian theory of inequality and thus foreshadowed one of the interesting ideas of the Roman jurists. The Ciceronian conception of the law of nature was to exert a formative influence on legal thought for the succeeding centuries, but it was modified in its transmission by the form into which the concept was put by the Roman jurists and incorporated in the Digest and Institutes of Justinian. The Roman lawyers accepted the Greek conceptions of natural justice and natural law and applied them as a means of legal reform. To these conceptions may be traced some of the significant ideas of the Roman law relating to equity. Gaius considered the jus naturale as virtually equivalent to the jus gentium, which was recognized through reason as a body of principles, universal and equitable in their applications.[23] For him natural law was a body of principles recognized through the reason as useful and just.
Ulpian and other Roman jurists seemed vaguely to distinguish between the jus naturale and the jus gentium, the former partaking more of the primitive and instinctive rules applicable to all life, and the latter, of the conventional rules of mankind at a given time and place.[24] Thus the later Roman jurists regarded slavery as contrary to the jus naturale, since men by the law of nature are born free and equal,[25] but as sanctioned by the jus gentium. By the time of Justinian the jus naturale had come to mean a body of ideal principles which men could rationally apprehend and which included the perfect standards of right conduct and of justice.[26] The compilers of the Institutes attempted to discriminate between the rules and instincts common to animals — the jus naturale; rules common to all mankind — the jus gentium; and the particular rules of a community — jus civile.
This classification, though merely suggested by Roman commentators, was followed with scrupulous care by certain mediaeval jurists.[27] Later civilians, like the older jurists, used natural law vaguely and sometimes in an ambiguous way, referring perchance to rules arising from animal instincts, to a common law created by man and corresponding to the jus gentium, or in Christian thinking to the laws of the Bible. But from some statements in Justinian's Institutes Carlyle concludes that "by the sixth century the phrase was certainly taking that meaning which it has throughout the Middle Ages and later — that is, that the jus naturale means that body of principles of justice and reason which men can rationally apprehend, and which forms the ideal norm or standard of right conduct and of the justice of social institutions."[28] All were agreed that natural law was immutable and not subject to change by civil enactments. It is well to note that two ideas which become prominent in the later stages of the growth of natural law concepts, namely, a primitive state of nature and, arising therefrom, a natural freedom and a natural equality, are the peculiar results of Roman legal thought in the Lower Empire. It was not until the mediaeval period, however, that the philosophy of natural law was given a dominant place in legal thinking.
2. Natural Law in the Middle Ages. A significant development of the concept of natural law is to be found in the Middle Ages, when the theories of Cicero and of the Roman jurists were adapted to the teachings of Christianity. In the writings of the philosophers and of the jurists of this period the concept of natural law was uppermost. The theory gained in significance by its association with the concept of a state of nature which had been recognized by some of the later Roman jurists.[29]
Primary consideration was given at this time to divine laws or to what were regarded as the eternal laws of the universe, over which man had no control. But subordinate to these divine and eternal laws was the law of nature. That the theory of natural law was given an important place in early Christian thought may be gathered from the writings of Origen, St. Ambrose, and St. Jerome. Referring to a passage of St. Paul (Rom. ii, 12-14) they spoke of natural law as equivalent to the law of God and as universal in contrast with the written laws made by man.[30] But it was Isadore of Seville who formulated a view of natural law which through the Decretum of Gratian became a part of the Canon Law. He recurred to the analysis of Ulpian and the Roman jurists and classified law as jus naturale, jus civile, and jus gentium with this difference, that jus naturale became the common law of nations without any reference to animal instincts.[31] In other respects he followed closely the Roman doctrines of the Code and the Institutes and thus gave these doctrines a primary position in mediaeval legal thought.
Gratian introduced a distinction which became basic in the Canon Law — natural law was identified with divine law and human law with custom; the jus gentium and the jus civile were included under the latter.[32] "To the mediaeval canonist, then, as to the Fathers," says Carlyle, "the jus naturale is identical with the law of God, it is embodied in the 'law and the Gospel,' for it represents the general moral principles which God has implanted in human nature, and it is, in its essential character, immutable." It is true that it is set aside by some of the legitimate institutions of society, but this is to be explained as a necessary accommodation to the corrupt state of human nature, and is justified by the ultimate purpose of setting forward the principles of the jus naturale. The jus naturale is to the canonists the norm by which any law or institution must be justified.[33]
The great philosopher of the Middle Ages, Thomas Aquinas, distinguished the eternal and divine laws as forming a part of the universe and as emanating from God, from natural laws which were the result of the participation of man as a rational creature in applying to human affairs the eternal law by which he distinguished between good and evil. To Aquinas the particular rules of the lex naturalis were not immutable. As rational laws designed for human ends, they were subject to change as human conditions varied.[34]
The mediaeval churchmen invariably identified nature and reason with a personal God and law and rights emanated from his will. Following the method of Thomas Aquinas, the current divisions of law were: divine, natural, and positive.
Mediaeval jurists usually accepted the tripartite division of law, suggested by Roman thinkers, into natural law, law of nations, and civil law. Through commentaries on the Institutes, such as that of Azo, the Roman classification was applied to the peculiar conditions of the Middle Ages. In the main they used the phrase jus naturale as meaning a body of principles, which may be rationally comprehended and which are immutable. In due course the jus gentium was thought of as the customary law of mankind and the jus civile as the customs of a particular community.
Mediaeval legal doctrines were based essentially on superior legal concepts which regarded law in its origin as of equal rank with the state and as not depending on the state for its existence. The idea persisted for centuries that the end of the state is the attainment of justice and that civil authorities act legitimately only when they follow the principles of justice. Mediaeval thinkers believed that it was the purpose of the state to realize the ideas of law and "it was never doubtful that the highest Might, were it spiritual or were it temporal, was confined by true limitations."[35]
Customs as well as enactments in order to be valid in mediaeval times were expected to be reasonable, which for the standards of that day meant in harmony with divine reason. Estimates of reasonableness were made by a triple standard applied with varying degrees of effectiveness: (a) revelation or the laws regarded as given directly from God; (b) church law, as embodied in the papal decrees or the canonical codes; and (c) natural law, conceived as common to the natural sentiments of man.
As strengthening the mediaeval concept of the law of nature as law, it is important to recognize that in this age there was little legislation in the modern sense. Enactments were usually designed to affirm existing rules or customs or to remedy abuses in administration.[36] To the mediaeval jurists and theologians, with such exceptions as St. Augustine and St. Gregory, law was an expression of the principles of justice and all governmental agencies were subservient to these principles. So important was this factor in mediaeval life that to understand legal thought it is regarded necessary to disregard the ordinary conception of a sovereign, the commands of whom are considered as law.[37] Civilians thought of law, not as the creation of human will, but as the application of principles or customs.
Along with the almost universal belief in the divine origin of political power and with the insistence on unlimited obedience to civil rulers because their authority came from God, there was a growing demand that for kings to be assured obedience they must rule justly and according to law.[38] Such political theorists as John of Salisbury and Althusius developed the distinction between a king who ruled legitimately according to law and a tyrant, who was guided by his individual whims.[39] A theory of the election of rulers was advocated which would render it possible to depose a tyrant. In the theory of the election of the ruler and in the requirement that he govern justly lay the germs of the later notion of a social contract, as the foundation of civil government.
There was prevalent at this time a conception of an inflexible code, emanating from the divine will interpreted and applied through the light of reason, and from this conception came the doctrine that the higher laws of reason or of nature controlled the lower laws or enactments of man. Sometimes a distinction was made between certain immutable principles and rules derived therefrom, which were subject to change.[40]
In practice natural law might be referred to as a guide to interpretation or in certain instances it might be appealed to where no rule of law had been declared. All laws in conflict with natural law, it was urged, must be considered void.[41]
A change in viewpoint preceding the period of the Reformation may be illustrated by William of Ockham's classification of natural law as
(a) Universal rules of conduct dictated by natural reason.
(b) Rules which would be accepted as reasonable without any positive law.
(c) Rules which are arrived at by deduction from the precepts of the law of nature and are liable to change by positive enactments.[42]
Rules of the third class were eventually referred to as the secondary laws of nature.
3. Theories following the Reformation. Not until after the Reformation were philosophers able to detach natural law theories from ideas of God and to find their source in an impersonal human reason. This detachment was hastened and the doctrine of natural law was given wider currency through the writings of Albertis Gentilis[43] and of Hugo Grotius.
Spanish jurists in the sixteenth and seventeenth centuries, antedating the work of Grotius,[44] formulated a theory of a supreme and immutable law of nature, changeless by God himself and based on "a state of nature antecedent to the state of corruption, and thus affording the type of perfection for all actual societies."[45] The mediaeval theological concept of the law of nature had its culmination in the philosophy of Saurez wherein the law of nature became an inflexible code willed by God and interpreted by reason. All enactments civil or religious which contravened this law were ipso facto void.[46] The Spanish jurists also fostered the belief in the natural rights of man, which it was the duty of the state to protect. These rights were thought to arise from a natural condition of equality in which the faculties inherent in men were to have a free opportunity for development.[47]
To Grotius, who put in a form which became more popular the theories of Vittoria, Suarez, and Gentilis, the emphasis was placed on natural right, which was "the dictate of right reason, indicating that any act, from its agreement or disagreement with the rational nature has in it moral turpitude or moral necessity; and consequently that such act is forbidden or commanded by God, the author of nature." Grotius distinguished the law of nature, which was unalterable even by the Deity, from positive law and from the law of nations[48] and divided it into divine rules ordained by God and rules prescribed by man.[49] He and his successors made use of the law of nature theory in formulating the basic principles of international law,[50] and for a long time natural law and the law of nations were thought of as closely related.
Building on natural law as a source and sanction of legal rules mediaeval jurists laid the basis for the concept of inborn and indestructible rights belonging to the individual as such. Roman thinkers, such as Seneca, had suggested that men in their natural state were free and equal.[51] The Church Fathers accepted this theory and tried to explain the differences and inequalities in human conditions as due to the fall of man and the consequent conditions of sin. Doctrines of freedom and equality were made an integral part of the law of nature by the canon lawyers. With the development of the sense of individual personality which became a feature of Christian thought during the Middle Ages and was fostered by church reformers, similar ideas were considered a part of an individual's right and heritage. To ecclesiastical thinkers men were equal in the eyes of God; to the anti-clericals they were equal in the eyes of men.[52]
In the natural law of this period lurked the germ of revolution, for on the basis of these precepts the whole structure of the state was subjected to criticism from the rationalist point of view. Catholics vied with Protestants in formulating a philosophic background for limiting the powers of the state.[53] To both, the primary rules of natural law were above all earthly rulers. The law of nature used by the church to support the Catholic morals and faith was found to be a convenient weapon to oppose the church in setting over against canonist decrees the rules of life discovered by human reason. In the conflict between the Empire and the Papacy, then, both disputants made frequent use of the law of nature.
Mediaevalists agreed on the existence of natural law; they differed merely as to its force and effectiveness. To some a statute or an executive act which violated natural law was void; to others, interested either in the claims of kings and princes to be sovereign in the civil domain or in the idea of popular sovereignty, natural law comprised guiding principles, directive only in the processes of lawmaking.
At the same time that men were engaged in discovering new grounds for limiting political authority, an ingenious Frenchman, following the lead of the Italian, Machiavelli, was formulating a theory of sovereignty which was destined to leave small place for the laws of nature. Recognizing a condition wherein the state as represented by an absolute king accountable only to God was claiming omnipotent authority, Jean Bodin developed a theory of sovereignty suitable to the times. To him the sovereign must be absolute and can be fettered by no human laws. He admitted that there were superior laws of morality and religion to which princes were bound but for breaches thereof they were accountable to God alone. Thus Bodin furnished the broad outlines of a theory which was accepted and elaborated upon by Hobbes, Spinoza, and Austin. Later developed by modern schools of legal philosophy it ultimately weakened the respect for, and largely replaced the law of nature theories of mediaeval times.[54]
"Natural law," "natural rights," and "natural justice," during most of the Middle Ages, were terms which were often used interchangeably. Thomas Hobbes undertook to distinguish between jus naturale as a natural right and lex naturalis as natural law. To him a natural right was a liberty possessed by every man in a state of nature, of doing what seemed best for the preservation of his existence. Natural law, on the other hand, was a body of principles or restraints which were devised by reason to make life secure.
The philosophy of Bodin, Hobbes,[55] and Spinoza tended to discredit the old natural law ideas and to make the state the sole source of law. They repudiated the legal significance of the "idea of natural law which aimed at finding a higher written law, above the rule promulgated by the state, to which this rule must accommodate itself so far as it aims to be, not a mere command of force, but an ordinance of justice."[56] They were formulating a basis for a doctrine of state omnipotence which was eventually to become one of the dominant dogmas of modern political thought.
Samuel Pufendorf followed Grotius in separating the law of nature from theology and in regarding most of the law of nature as the dictate of right reason determining what is right and wrong in human conduct. The natural rights philosophy was put into its most systematic form in the works of Pufendorf.[57] Foremost in his system were the natural rights of the individual, independent of society and of the state, arising from a condition similar to Seneca's primitive state of nature. The law of nations was regarded merely as a fragment of natural law. There was the foundation here for what has been called "the unruly emphasis on rights" which culminated in the French declaration of 1789.
Locke regarded the law of nature as a body of rules for the conduct of men in their natural condition. Reason, Locke considered as the interpreter of this law; equality, its fundamental condition. Conceiving men as existing in a state of nature Locke constructed his doctrine of natural rights which belong to man in the pre-political state. These rights were life, liberty, and property.[58] Legislatures were bound to rule, in his judgment, according to the law of nature and to carry on their functions by fixed and general laws rather than by arbitrary decrees; and laws which transgressed certain fundamental principles were not laws "properly so-called."[59] There seems to be a warrant here for the opinions of American justices that acts of the legislature which are arbitrary, though not expressly prohibited, may nevertheless be void because not "legislative in character." Locke's ideas relating to the social compact, government under the law of nature, popular sovereignty, the right of revolution, and natural rights superior to the government and civil laws, were to reappear in constitutions, laws, and judicial decisions in phrases adapted to American legal thinking.
Thus the dualism of Aristotle had taken definite form. There was an immutable law which was of divine origin or the product of right reason, but whatever its source it was common to all men and universal. And there were positive enactments which were made by man to meet the contingencies of the moment. The two systems were in constant conflict — one a perfect and rational order and the other an imperative and positive one.[60]
Natural law, emanating from the divine will or from divine reason, consisted only of certain basic principles. Positive law elaborated this natural law and through practical reason adapted it to the ordinary activities of life. Differing from the idealistic interpretations of the concept in Greece and in Rome natural laws were conceived as norms and positive laws that were not in accord with the natural law were unjust and therefore had no validity, though the means to prevent their enforcement were not always at hand. Thus a criterion was available to measure, in a theoretical way at least, the validity of civil enactments.[61]
4. Types of Natural Law Ideas in Ancient and Mediaeval Times. It is difficult to classify the various types of natural law theories which prevailed in ancient and mediaeval times, but it seems essential to undertake a tentative classification.
With the early Greeks natural law was law in accordance with nature in the physical sense, similar to the laws of the natural sciences in modern terminology. Such a meaning of the laws of nature has been seldom referred to since the time of the Greeks, though it has had counterparts in Ulpian's laws common to all animals, in the eternal laws of Aquinas from a quite different setting, and in a curious medley of ideas in the nineteenth century, when natural law comprised a resume of ideas relating to the physical universe, of moral and ethical concepts, and of legal doctrines and principles.
Natural law was also considered as divine in origin and either comprised rules given to man by the Deity or his representatives or consisted of divine law from which principles of right and justice might be deduced by man's reason. This source of natural law only incidentally mentioned by the Greeks became to the theologians of the Middle Ages its main origin and sanction. Following the authoritative presentation of this view by Thomas Aquinas and other mediaeval theologians it has continued as the accepted view of Catholic jurists and of others who have chosen to emphasize the religious factors in the processes of lawmaking. Believers in this type of natural law may be found in all countries wherein the philosophy and traditions of the Middle Ages are fostered by religious and ethical agencies.
The Greeks also set a standard for a natural law of an idealist type — comprised of universal and immutable principles apprehended chiefly by philosophers and jurists. It was a law which reasonable creatures were everywhere bound to obey. Positive laws to have validity emanated from the ideal natural laws. This type of natural law was closely related to the current ideas of religion and morality and became prominent in Stoic political thought. During the Middle Ages it was conceived as an absolute law of reason which on account of its rational basis binds all reasonable beings.
Differing in certain respects from the immutable natural law of the Stoics, a type of natural law was formulated by ancient and mediaeval thinkers which was comprised of rules or principles of law and justice, divorced partially, at least, from divine origins. These were sometimes referred to as the unwritten laws ingrained in the hearts of men. Such principles were used by the praetors and jurists in rendering decisions which were just and equitable, and in adapting the rigid formulas of the jus civile to form the jus gentium. It was this kind of natural law — principles of common law recurring among different nations — on which international law and certain parts of developing public law were based in the sixteenth century. It is a type which is always present in the practical applications of the law where it is molded to accord with advancing notions of morality in human conduct. Stripped of some of its immutable characteristics, its modern use may be found in the principles of reasonable conduct applied in English law and in the authority accorded the judges in certain European countries to fall back on principles of reason and justice to fill gaps in the law. Continental jurists also make frequent use of the rationalist form of natural law to measure the efficacy of existing positive enactments. It thus becomes the prototype for a "natural law with a variable content." The main trend of ancient and mediaeval theories of natural law, as Pollock suggests, was rationalist and progressive in its implications.
There was also a natural law arising from an original and primitive state of nature from which men derived natural rights — such as rights of equality and freedom. To the mediaevalists this state of nature corresponded to the condition of men before the origin of sin. Sometimes these rights were regarded as an inheritance of the individual from his birth and of such significance that it was the prime duty of the state to protect them. The Reformation encouraged the tendency to consider such rights as natural and as belonging to the individual as such. It remained for the English, French, and American philosophers to make them the foundation of civil government.
Natural law was also conceived as a theoretic foundation for axiomatic truths from which a system of positive law could be deduced. From this viewpoint the lex naturalis existed prior to the formation of the state and from it directly or indirectly came all legal rules.
It would be a mistake to think that the different types of natural law were either clearly defined by ancient and mediaeval writers or were formulated in such a way as to be readily differentiated. Most of the ideas relating to natural law, then as since, were vague and theories often involved a confusion of ideas which make it almost impossible to attempt any classification of views. Certain trends are evident, however, which may be indicated. And, above all, it is apparent that, owing to the continual efforts to contrast the natural and the conventional, the ancient and mediaeval periods furnished rich soil for the germination of natural law concepts.
Natural law theories had passed through a cycle from the ideal and philosophical form of the Greeks and Romans to a standard, presumedly derived from divine sources, which the mediaeval canonists used as a criterion to measure the validity of the acts of civil and secular rulers, and thence to a series of rationalist concepts forming a basis for international law and for other branches of civil law.[62] As an ideal not wholly divorced from its divine connotations natural law was not infrequently called upon to measure the reason, necessity, or convenience of the beginnings in the way of modern legislation. The cycle was barely completed when a new turn in legal and political speculation changed the course of natural law thinking and gave a marked impetus to the emphasis upon certain higher law concepts. As the new meaning accorded to these concepts resulted from the social and political developments in England, in America, and in France, it is necessary to trace briefly the course of the development of natural law doctrines in these countries.
1. For sketches of the origin of the higher law ideas in relation to "the law of nature," see John W. Salmond, "The Law of Nature," Law Quarterly Renew, XI (April, 1895), 121; James Bryce, "The Law of Nature," Studies in History and Jurisprudence, II, 556; and Sir Frederick Pollock, "The History of the Law of Nature," Journal of the Society of Comparative Legislation, II (1900), 418-433, and Essays in the Law (London, 1922), chap. 2. Reprinted in Columbia Law Review, 1 (January, 1901), 11. See also Guilio de Montemayor, Storia del diritto naturale (Naples, 1911).
2. Among the most common ideas involved in the word "natural," when used in such phrases as "natural justice," "natural right," and "natural law" are: rational; reasonable; in accordance with nature; in agreement with ancient customs; just; equitable; divine, or in accord with the will of God; ideal, as differentiated from the actual; appropriate; and, necessary. For a summary of the various ideas involved in the term "natural" in this connection, see B F. Wright, Jr., "American Interpretations of Natural Law," in American Political Science Review, XX (August, 1926), 542, 543.
3. For an account of the evolution of Greek ideas relating to natural law, consult E. Burle, Essai historique sur le développement de la notion de droit naturel dans l'antiquité grecque (Trevoux, 1908). Cf., especially, for natural law ideas of Sophocles, of Socrates, and of Plato.
4. See Burle, op. cit., beginning at chap. 2. The Pythagoreans taught that "law ought to be in conformity with nature and it will be if it is made in the image of natural law which attributes to each according to his merit" (ibid., p. 86). For the views of the Sophists see ibid., pp. 103 ff. Greek philosophers, it is observed, constantly referred to an eternal law, the reason of a supreme being, and absolute and immutable law, which it was the duty of the public authorities to recognize and enforce in defining the relations and duties of human beings. In the Socratic philosophy an act which resulted in injustice had only the appearance of a law (ibid.; p. 157).
5. John L. Myres, The Political Ideas of the Greeks (New York, 1927), p. 270. For reference to the antithesis between the two concepts, see Ernest F. Barker, Greek Political Theory: Plato and His Predecessors (London, 1918), pp. 64 ff. See also Gilbert Murray, "The Stoic Philosophy," in Essays and Addresses (London, 1921), pp. 96, 97.
6. "The principal problem examined by the Sophists in regard to jurisprudence was how far the basic laws of society can be regarded as ingrained in the nature of things, and how far they are merely artificial establishment." Sir Paul Vinogradoff, Outlines of Jurisprudence, vol. II, The Jurisprudence of the Greek City (London, 1922), p. 26. Vinogradoff thinks the contrast between fusiV and nomoV may be traced to Demokritos (ibid., pp. 26 ff.).
7. Xenophon, Memorabilia, 4. 4. 19; Walter Eckstein, Das antike Naturrecht im sozial philosophischer Beleuchtung (Wien und Leipzig, 1926), chap. 11.
8. Sophocles, Antigone, pp. 450 ff.
9. Barker, op. cit., p. 64.
10. Cf. Myres, op. cit., p. 47; Eckstein, op. cit., chaps. 2, 3.
11. Nicomachean Ethics, 7; Burle, op. cit., chap. 14. There is, Aristotle maintained, a natural law anterior to the positive laws and from which the latter take their origin. To render a political order stable there must be administered in it a justice independent of arbitrary rules or of human enactments and superior to every individual interest (ibid., pp. 178 ff.; Bryce, op. cit., pp. 567, 568; Salmond, op. cit., p. 127).
12. Rhet. 1375, a, 27; Bryce, op. cit., p. 567; Eckstein, op. cit., chap. 5.
13. Vinogradoff, Jurisprudence of the Greek City, p. 138.
14. Cf. also G. M. Calhoun, "Greek Law and Modern Jurisprudence" in California Law Review, XI (July, 1923), 308, and D. Goodell, "An Athenian Parallel to a Function of our Supreme Court," in Yale Review, II (May, 1893), 64.
15. See Plato, The Laws; also Ernest Barker, op. cit., chap. 15. To Plato the rule of law meant that every authority in the state was exercised under a code of laws which was definitely established and which was fundamental. In the Republic and the Politicus Plato rejected to a certain extent this idea of the sovereignty of law.
16. Sohm's Institutes, 3d ed., trans. by J. C. Ledlie (London, 1907), pp. 64 ff.
17. Ibid., p. 79.
18. W. W. Buckland, A Textbook of Roman Law from Augustus to Justinian (Cambridge, 1921), p. 54.
19. W. W. Buckland, A Manual of Roman Private Law (Cambridge, 1925), pp. 28 ff. The Romans, it is observed, were influenced "by the Stoic conception of life according to nature with its corollary of a natural law — rules of conduct implanted in man by nature. This notion of a jus naturale, principles intuitive in man, his very nature, and capable of universal application appears frequently in Roman sources. Occasionally it is declared to be a principle on which all law rests, but the habitual attitude of the Roman lawyers is different: jus naturale is the ideal to which it is desirable that law should conform, but it was not really at any time a test of the validity of a rule of law." Cf. also Buckland, A Textbook of Roman Law from Augustus to Justinian (Cambridge, 1921), pp. 53 ff; R. W. and A. J. Carlyle, A History of Medieval Political Theory in the West (New York and London, 1903), I, 36 ff.; M. Voigt, Die Lehre vom jus naturale, aequum et bonum und jus gentium der Römer (Leipzig, 1856), secs. 52-64 and 89-96; and Theodor Kipp, Geschichte der Quellen des römischen Rechts, 4e ed. (Leipzig, 1919), pp. 14 ff.
20. For an analysis of the original Stoic concepts of a "law of right reason" see Burle, op. cit., pp. 399 ff., and Eckstein, op. cit., chap. 7.
21. Cicero was, of course, not presenting original ideas but was putting into current phraseology some of the commonplace political ideas of the time. "The theory of natural law is to Cicero the form of the theory of justice in society, and it is also the groundwork upon which the whole structure of human society rests." Carlyle, op. cit., I, 6.
22. De Legibus II, 4, 10; Carlyle, op. cit., I, 3 ff.; cf. Salmond, op. cit., pp. 127 ff. and Bryce, op. cit., pp. 568 ff.
23. "That law which any people establishes for itself is peculiar to itself, and is called the civil law (jus civile), as being the particular law of the state (jus proprium civitatis). But that law which natural reason has established for all men, is observed by all peoples alike and is called the law of nations (jus gentium), as being that which all nations use." From Introduction to Commentaries of Gaius. Carlyle, op. cit., I, 37 ff.
24. Ibid., pp. 39 ff. Pollock thinks that Ulpian's distinction was not generally understood by the Roman lawyers of his day and that its incorporation into the Digest and the Institutes gave it a currency quite beyond its intrinsic merit. Cf. Appendix to Maine's Ancient Law (New York, 1906), pp. 399, 400, and Essays in the Law (London, 1922), pp. 36-38.
25. Digest 1, 1, 4. On the relations between the jus naturale and jus gentium in Roman law see Pollock, "History of the Law of Nature," in Essays in the Law. By the Roman lawyers, Ulpian, Tryphoninus, and Florentinus, men are considered by nature free and equal. Quod ad jus naturale attinet, omnes homines aequales sunt. 1.17. 32. Cum jure naturali omnes liberi nascentur. Dig. 2. 1. 4; also 2. 5. 4. Cf. Carlyle, op. cit., I, chap. 5; and Albert Vaunois, De la notion du droit naturel chez les romains (Paris, 1884), especially chaps. 1, 2.
26. E. D. Dickinson, The Equality of States in International Law (Cambridge, 1920), pp. 16, 17. For reference to the Greek origin of the phrase in Justinian's Digest, that this is law, to which it is proper that all men conform (Digest, 1. 3. 2), see John L. Myres, op. cit., pp. 309 ff.
27 Carlyle, op. cit., II, 28 ff. For opinions holding that imperial rescripts contrary to natural law are void, see ibid., pp. 32, 33. The Greeks and the Romans seldom conceived of legal rights inhering in the individual and hence they did not formulate notions of natural rights. On this distinction, see J. Walter Jones, "Acquired and Guaranteed Rights," Cambridge Legal Essays (London, 1926), pp. 223 ff.
28. Carlyle, op. cit., I, 74, 75.
29. An original conception of a primitive state of nature is found in the writings of Seneca. Carlyle, op. cit., I, 23 ff.
30. For extracts from these writers, see Carlyle, op. cit., I, 104, 105.
31. Carlyle, op. cit., I, 106 ff. Cf. also, Heinrich Singer, "Das Naturrecht im Codex iuris canonici," Archiv für Rechts- und Wirtschaftsphilosophie, XVI (1922-23), 206-215. Dr. Singer observes that the authors and contributors of the Codex iuris canonici were instructed to state the law so as to agree with the principles of natural law. An effort was made to reconcile the jus divinum or revealed law with jus naturale or rules resulting from the rational processes of man. Ibid., pp. 209 ff.
32. Carlyle, op. cit., II, 28, 98, 102, 105.
33. Ibid., II, 113; also Pollock, Essays in the Law, p. 40.
34. Summa Theologiae, 1, 2, q. 91, art. 2 and q. 93, art. 1. The theories of Thomas Aquinas are based to a considerable extent upon the doctrines of predecessors in the twelfth and thirteenth centuries whose works are usually neglected. For the contributions of some of these men consult Martin Grabmann, "Das Naturrecht der Scholastic von Gratian bis Thomas von Aquin," Archiv für Rechts- und Wirtschaftsphilosophie, XVI (1922-23), 12-53. Alessandro Bonnucci also traces the scholastic philosophy of natural law in La derogabilita del diritto naturale nella scholastica (Perugia, 1906).
Rufinus was one of the first to suggest that jus naturale was "a certain quality implanted in mankind by nature, which leads men to do what is good and to avoid what is evil." Carlyle, op. cit., II, 103, 107.
35. Otto Gierke, Political Theories of the Middle Ages, trans. by F. W. Maitland (Cambridge, 1922), pp. 74ff.; cf. p. 172 for note by Maitland on the theories of natural law in the Middle Ages. "Men supposed," says Gierke, "that before the State existed the Lex Naturalis already prevailed as an obligatory statute and that immediately or mediately from this flowed those rules of right to which the State owed even the possibility of its own rightful origin. And men also taught that the highest power on earth was subject to the rules of Natural Law. They stood above the Pope and above the Kaiser, above the Ruler and above the Sovereign People, nay, above the whole Community of Mortals. Neither statute nor act of government, neither resolution of the People nor custom could break the bounds that thus were set. Whatever contradicted the eternal and immutable principles of Natural Law was utterly void and would bind no one. The mediaeval theory declared 'that every act of the Sovereign which broke the bonds drawn by Natural Law was formally null and void.' ... As null and void, therefore, every judge and every other magistrate who had to apply the law was to treat, not only every unlawful executive act, but every unlawful statute, even though it were published by the Pope or Emperor." Ibid., pp. 75, 84. Cf. also, Carlyle, op. cit., I, 174; III, 32, 128; and Gierke, Johannes Althusius und die Entwickelung der naturrechtlichen Staats-theorien, 3d ed. (Breslau, 1913), chap. 6.
36. C. H. McIlwain, The High Court of Parliament and its Supremacy (New Haven, 1910), pp. 43, 46, and "Magna Carta and Common Law" in Malden, Magna Carta Commemoration Essays, pp. 140, 141. See also, Theodore F. T. Plucknett, Statutes and their Interpretation in the First Half of the Fourteenth Century (Cambridge, 1922), pp. 165 ff.
37. Carlyle, op. cit., III, chap. 3.
38. "Any form of government is right and just," said Aquinas, "in which the rulers seek to promote the common good, but not otherwise." A. J. Carlyle, "The Political Theories of St. Thomas Aquinas," Scottish Review, XXVII (January, 1896), 126, 141.
39. For an exhaustive analysis of the theories of Althusius and of the "Monarchomachs," consult Gierke, Johannes Althusius. The whole view of the Vindiciae contra Tyrannos, says Laski, "is built on the assumption that it is the duty of the magistrate to represent the popular idea of right." Harold J. Laski, A Defence of Liberty against Tyrants: A translation of the Vindiciae contra Tyrannos by Junius Brutus (London, 1924), pp. 47, 48.
40. In the Middle Ages, says Maitland, "God Himself appeared as being the ultimate cause of Natural Law. This was so, if, with Ockham, Gerson, D'Ailly, men saw in Natural Law a Command proceeding from the Will of God, which command therefore was righteous and binding. It was so, if, with Hugh de St. Victor, Gabriel Biel and Almain, they placed the constitutive moment of the Law of Nature in the Being of God, but discovered dictates of Eternal Reason declaring what is right, which dictates were unalterable even by God Himself. Lastly it was so, if, with Aquinas and his followers, they (on the one hand) derived the content of the Law of Nature from the Reason that is immanent in the being of God and is directly determined by that Natura Rerum which is comprised in God Himself, but (on the other hand) traced the binding force of this law to God's Will." Gierke, Political Theories of the Middle Ages, p. 172.
41. Thus Baldus claimed that on the authority of the law of nature neither the Emperor nor the Pope could validate the taking of usury. For interesting efforts to justify slavery and the ownership of property though contrary to the law of nature see Carlyle, op. cit., I, chaps. 10, 12, 16 and II, Pt. I, chaps. 4, 5, Pt. II, chaps. 5, 6. See also, Gierke, Johannes Althusius, pp. 272 ff.
42. Goldast, Monarchia, II, 932 and Gierke, Political Theories of the Middle Ages, pp. 172, 173. For the distinction between principal and secondary rules of the law of nature, see ibid., p. 175; also, Johannes Althusius, pp. 273, 274.
43. To Gentilis, who with Grotius may be credited with the formulation of systematic rules of international law based largely on the law of nature, natural law comprised "such rules of justice as would govern men as moral and responsible beings, living in society independently of human institutions — in other words, in a 'state of nature.'" De legationibus, II, 18, and Coleman Phillipson in Great Jurists of the World (Boston, 1914), pp. 119, 120.
44. Edited by Ernest Nys (Washington, 1917). Cf. works of Francisco di Vittoria, De Jure Belli and De Indis (1557).
45. William A. Dunning, Political Theories from Luther to Montesquieu (New York, 1905), pp. 132 ff.
46. Ibid., pp. 13 ff. "There was also a philosophic, deductive law of nations before Grotius, resting upon the same foundations as the natural law of the schoolmen, and cultivated particularly by the Spanish moralists, especially by Francisco Vittoria and his followers." General Survey of European Authors (Continental Legal History Series), p. 412. For theories of a state of nature and of an original compact, cf. Suarez, De Legibus, III, 4, and Mariana, De Rege, I, 1, 2, 8.
47. Roscoe Pound, An Introduction to the Philosophy of Law (New Haven, 1922), pp. 82, 83.
48. Professor Dickinson, referring to the fact that the natural law theories of Grotius are often misunderstood, claims that "Grotius presented a less comprehensive discussion of natural law than either Suarez before him or Pufendorf who came after." The Equality of States in International Law, p. 43. The law of nature which these men found, Pollock observes "was no mere speculative survival or rhetorical ornament. It was a quite mediaeval theory. What is more, it never ceased to be essentially rationalist and progressive. Modern aberrations have led to the widespread belief that the law of nature is only a cloak for arbitrary dogmas or fancies." Essays in the Law, p. 32.
49. Cf. De Jure Belli ac Pacis, Book I, chap. 1.
50. For indications of the use of the doctrine of natural law and natural rights by jurists and text writers in formulating principles of international law, see Grotius, op. cit. (1672); Pufendorf, De Jure Naturae et Gentium (1672); Burlamaqui, Principes du droit naturel (1758); Rutherford, Institutes of Natural Law (1754-56). The natural law doctrine that contracts are binding was in Grotius' opinion a limitation on the authority of sovereigns. Grotius, op. cit., Book III, chap. 24.
51. Referring to the ancient origin of the idea of equality, Professor Radin observes that "the East gave to Rome both the practical fact of inequality, fixed into unescapable ordines and regulated by the needs of the state, and the corrective ideal of a perfect city of equals living in accordance with a Law of Nature." "Roman Concepts of Equality," Political Science Quarterly, XXXVIII (June, 1923), 288.
52. "Every one in a state of grace," thought Wycliffe, "has real lordship over the whole universe." De Civili Dominio (ed. by R. L. Poole), pp. xxii-xxiv.
53. Harold J. Laski, op. cit., Introduction, and Pollock, Essays in the Law, p. 50. For the way in which the leaders of the Reformation built on the political ideas of the church theologians, such as the theory of the social contract, the sovereignty of princes, etc., see Jean Brissaud, The History of French Public Law, trans. by James W. Gamer in Continental Legal History Series (Boston, 1915), p. 536. With the exception of Bodin, Hobbes, and Bossuet, he notes, most political writers followed the theories of natural law and attempted to justify political power on the basis of the idea of justice.
54. See William S. Holdsworth, History of English Law, IV (London 1922-25), 190 ff., and Dunning, op. cit., chap. 3. Cf. Gierke, Johannes Althusius, pp. 299 ff., on the doctrine of Staatsraison, which tended to weaken the limitations on the state attributed to divine and natural laws.
55. Despite his positivist tendencies Hobbes regarded natural law as eternal and immutable. Leviathan, chap. 15; cf. Pollock, Essays in the Law, pp. 59, 60.
56. General Survey of Events, Sources, Persons and Movements in Continental Legal History, Continental Legal History Series (Boston, 1912), p. 415.
57. On Pufendorf and the development of the law of nature, consult Coleman Phillipson's account in the Great Jurists of the World, pp. 311 ff.; also Gierke, Johannes Althusius, pp 300 ff.
58. John Locke, Second Treatise of Civil Government, Book II, sec. 6. "The state of nature has a law to govern it, which obliges everyone: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions."
59. John Locke, op. cit., chap. 11. "These are the bounds which the trust, that is put in them by the society and the law of God and nature, have set to the legislative power of every commonwealth, in all forms of government. First: They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court, and the countryman at plough. Secondly: These laws also ought to be designed for no other end ultimately but the good of the people. Thirdly: They must not raise taxes on the property of the people without the consent of the people, given by themselves or their deputies.... Fourthly: The legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." Ibid., chaps. 11, 18, and Discourses Concerning Government, III, sec. 11. John Neville Figgis, The Divine Right of Kings (2d ed, Cambridge, 1922), p. 242, "The more closely Locke's treatise is studied, the more clearly will it be seen that it is an attack directed far more against the idea of sovereignty, than against the claims of absolute monarchy."
60. Cf. J. Castillejoy Duarte, "Kohler's Philosophical Position," Appendix to Kohler, The Philosophy of Law, trans by Adalbert Albrecht in Modern Legal Philosophy Series (Boston, 1914), XII, 335.
61. Cf. J. Castillejoy Duarte, "Kohler's Philosophical Position," XII, 352, 353. "The exponents of the law of nature are not always at one in every particular, but their fundamental conception is that 'Nature' represents the supreme, unifying, controlling power manifesting itself in the universe at large; and that 'Reason' is a special aspect of this principle looked at from the point of view of man and the operation of his mental and moral faculties. In so far as men are men they possess common elements; and in their political and social life these elements inevitably emerge and are recognizable in custom and law. Hence the substratum of this law is thought to be of necessity established by the universal guiding force, personified as nature. Such natural law represents the permanent portion of human law in general, and it is prior and superior to positive legislation, which is only a supplement thereto demanded by changing circumstances in different localities. Conventional justice may well elaborate or extend its applications, but must not alter its essential content or violate its spirit." Coleman Phillipson in Great Jurists of the World, p. 311.
62. Georges Davy, Le droit, l'idéalisme et l'expérience (Paris, 1922), pp. 41 ff.
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