REVIVAL OF NATURAL LAW IN METAPHYSICAL AND THEOLOGICAL
NATURAL LAW THEORIES AND INTERNATIONAL LAW
THE modern revival of natural law theories is the result of a variety of tendencies in legal, political, and moral thinking. Jurists of the most diverse points of view, inclinations, and interests join in the advocacy of higher law theories. One of the foremost movements in modern thought which is bringing natural law out of its seeming state of disrepute is connected with renewed efforts to seek the sources and sanctions for legal rules in religious and metaphysical speculations. Taking as a standard the mediaeval concepts of natural law, when jurisprudence was a branch of theology, and following the metaphysical analyses of Thomas Aquinas in. relation to law, modern juristic writers, mainly adherents of the Catholic faith, aim to restore natural law again to its position of primacy in the political and legal world. In fact, certain phases of the Thomist system, namely, that natural law was "nothing else than the rational creature's participation in the eternal law" and that it comprised rules of conduct essentially prescribed by the Creator, have never ceased to be one of the main tenets of thought among jurists interested in theological speculations. During the nineteenth century, when the natural rights philosophy was repudiated by politicians and by certain jurists the ancient theories, as molded under mediaeval influences, continued to receive careful analysis, exposition, and defence by Catholic writers.
We can make no greater mistake [says Dean Pound], than to suppose that the speculations of the metaphysical jurists were without practical effect upon the law. We should be put on our guard, if by nothing else, by the wealth of literature from this standpoint in the first three quarters of the century. When a popular exposition thereof, such as Ahrens' Cours de droit naturel, could go through twenty-four editions in seven languages between 1837 and 1892, men must have been finding satisfaction in the metaphysical theory of law in more lands than one.
1. Natural Law Doctrines of Del Vecchio. There are evidences of a return to natural law theories in most of the European nations but in none is the tendency more marked than in Italy, where the Catholic or Traditionalist School has had a prominent position in legal thought. Among the many Italian advocates of the theories of natural law Professor Georgio del Vecchio of the University of Rome is a leader among an active group who aim to turn juristic philosophy in the direction of higher law ideas. Del Vecchio insists that there must be in jurisprudence an element not derivable from experience and he conceives a natural law based upon the common elements in man's nature. The war against natural law concepts, unless it aims merely to correct errors and omissions, he regards as unjust and irrational. To him the conception of absolute justice is one of the fundamental needs of the human mind. Says del Vecchio:
Natural law exists, therefore, as a system of the highest truths, not sensible but rational, and is, then, independent of the existence of common institutions in all nations ... the idea of natural law, which has withstood the attacks of skeptics and empiricists of past times will resist those of modern positivists, and will guide humanity in the future.
Del Vecchio conceives as a universal element in the law what he calls its logical form (Forma dat esse rei). This logical form is a metaphysical and an a priori essence of the law. On the basis of these norms certain principles of law are regarded as deducible a priori from human nature. Natural law is not, then, merely rationalized law; it constitutes "a special order of juridical rules founded upon a definite criterion." In predicating these universal norms of legal reasoning Del Vecchio suggests a philosophical basis similar to the fundamental principles and the abstract rule of reason permeating much of American constitutional law.
Del Vecchio explains in detail the prevalence, in the Italian system of law and in other legal systems based essentially on Roman ideas, of principles of law or of basic notions which condition all legal thinking.
Besides the multitude of special laws and of the decisions relating to particular cases and to definitely determined relations, there exists in our legislation [he says] notably in the Constitution and in part also in the preliminary provisions of the Civil Code or in other laws, positive affirmations of a general character which reflect in a measure more or less large, the rational elaborations concerning the law accomplished by the preceding schools of philosophy.
Permeating the Code, legislative acts, and the interpretations of the judges are the applications of such natural law concepts as the principle of equality before the law, the respect for persons or individuality, the right of privacy, the right to use one's faculties, and the right of property. The peculiar results derived from the applications of these concepts, it is claimed, can by no means be understood by reference alone to the formal provisions of the laws. But rather,
there are, among all peoples, some fundamental convictions regarding modes and aims of conduct, which represent the common exigencies of human nature, displayed according to the degree of their development, and in relation to certain elements of outward fact. Such convictions determine generally all the forms under which life shows itself, and accordingly the juridical system among others, although they are not found written in the provisions of any code.
The historical basis of right arises, Del Vecchio believes, from the exigencies and aspirations of individual consciences. But it is not an entirely variable concept, rather a form of right, which, "analogous to that of morality, does not depend on facts, but rather tends to control them; whence neither can it be limited by the institutions actually in vigor, of whatever kind they may be; rather it sets its affirmations naturally beyond these, and sometimes against them."
When the rules of positive law come into conflict with the principles of natural law, Del Vecchio asserts, it is the duty of the judge to apply the positive rules. In such a case the principles of natural law, in his judgment, remain alive and active and in the end will be recognized by the positive law. Formal rules and maxims contrary to reason may be imposed temporarily but in the end equity, reason, and good faith will prevail despite formal prescriptions to the contrary.
The following extracts will indicate Del Vecchio's point of view in his effort to revive interest in natural law principles of a metaphysical type, somewhat similar to the Kantian hypotheses.
The idea of the natural right [law] is truly one of those which accompanies humanity in the course of its history; and though some schools, as it has happened very often, especially in our day, try to exclude it or to ignore it, the idea is affirmed powerfully once more in life. Consequently, it is rationally incorrect to try to discard it, and it is still more so when it is a question of interpreting a legislative system, under the dominance of this idea. Of this we have the proof, not so much in the preparatory works of which we would not want to exaggerate the importance from the standpoint of interpretation, as from the fact that our legislation concerning private law, is derived for the greater part from the Roman law, entirely developed about the idea of naturalis ratio, and that concerning public law, from the constitutional systems of England and of France which have for their fundamental bases a Bill of Rights and a Declaration of Rights, real and typical expressions of jus naturae.
Whatever judgment the interpreter wishes to make from his point of view on this great doctrinal tradition, and on its actual significance, which is by many signs shown to be inexhaustible, one cannot, however, deny that this doctrinal tradition had a real existence and a vigorous efficacy at a time which corresponds to the formation of our present legal system. Hence the necessity of not neglecting its study and running the risk of refusing to understand the real and exact significance of the system.
This study, which integrates that of the particular norms to which we have already alluded, constitutes also a check as well as an aid for individual thought in the reconstruction of the law now in force. It facilitates above all the seeking for origins concerning this part of the general principles of law which the legislator had the opportunity of recognizing and of formulating, without, however, giving them a complete and definite expression; also, this study makes easier the seeking for the principles which are not formulated, but which nevertheless actually exist in the system, where they are buried, so to speak, under the mass of particular norms, which are derived more or less from the application of these rules. The tie which exists between the general theories of law that prevail in the thought of a given period, and in the legal provisions which, in the same period, are organized and drawn up, can be discovered more or less direct, and more or less easy. Such a tie must exist, if it be true that the world of civil affairs has been made by men, and consequently these principles must be found in our human mind; in other words, if the human mind gives birth to the law as a phenomenon and as an idea. It is easy to understand, therefore, that the work of the interpreter, when he tries to comprehend and to integrate a system determined by history, cannot be wholly evolved from within, that is, arbitrarily and individually; it cannot consist in the affirmation of a natural right "which each one shapes for himself according to his individual whim," against which the logic of the jurist would have good reason to protest. The appropriate support and assurance, in our quest for principles, are given us by the entire general theories which envelop the law and which are not the artificial work of an individual thinker, but which correspond to a strong and true scientific tradition intimately linked in the genesis of the laws actually applied. And this consideration which is necessary to give to the doctrinal traditions does not prevent the elaboration of the ulterior elements which compose the whole; on the contrary, it facilitates their interpretation, in the sense that it indicates, by means of principles already assured, the direction in accordance with which their progress and ulterior development should move.
The school of natural law intended and intends essentially to uphold the non-arbitrary character of the law, that is to say, the existence of a necessary relationship between the intrinsic substance of things and between the rules of law which are connected with them.
Even the principle upon which we are all particularly agreed, the principle of the innate and absolute right of the individual, agrees with this fundamental tendency; by this principle, in fact, one affirms that the true nature of man implies an element of transcendentalism, a faculty which cannot be suppressed, and which is consequently inalienable, to dominate the order of phenomena and to find in itself its own determination, in a word, to affirm the autonomy of the human being. The law cannot fail to recognize such a fact, nor refuse to take from it all the consequences and applications which are in its wake.
According to the same criterion the way is open for the research of law corresponding to each kind of juridical reality, in so far as it contains relations between individuals. This inquiry, which is accomplished by means of the reason ("ex ratiocinatione animi tranquili"), as Thomasius said, has its normal period of comparison in the positive juridical rules which represent already, in fact, an attempt at a solution of the same problem. Numerous cases, and especially when it is a question of recognizing purely logical necessities of the immediate exigencies of our being, and of conditions of natural law, or of the naturalis ratio, manifest themselves, in a given moment, as elements of the positive law and form precisely its substratum, a substratum which is retained, and which is transmitted, through the changes of positive law. That, for example, no one can transfer to any one else more right than he himself enjoys; that it is legal to oppose strength and that, consequently, every one has the privilege to defend himself against any aggressions; that, in all matters, the advantage must belong to the one who has been inconvenienced; that no one can enrich himself unjustly at the expense of others. All these criteria, and many others that are similar to them, come from the natural juridical reason and have been in a sense already stated by the Roman jurists. They indicate the formative principles of the laws actually in force today, whether these laws express these principles precisely, or whether they are regarded as implied in the form of maxims, the disappearance of which would cause many particular legal provisions to lose all of their meaning.
The necessity of having recourse to such criteria and, in general, to the natural juridical reason, is kept very active and very urgent by the incomplete nature which inevitably belongs to the positive law; it is so urgent, indeed, that one could not avoid such a recourse even if an expressed reference to general principles similar to the one offered by Art. 3 of the preliminary provisions of the Italian Civil Code, were lacking, as it happens in other systems (for instance, in the Code Napoleon and in the German Civil Code). This fundamental exigency which inspires the theories of natural law and which is called, in a wider sense, "equity," a consideration of all the elements of reality necessary to determine the equilibrium in the transactions between two persons, cannot be repudiated by positive legislation. This legislation itself, after having attempted to supply what is necessary in a measure for such an exigency, must admit finally that it is directly applied through the conscience alone of the judge, in all cases not determined by precise rules, nor likely to be determined by them, at least by analogy. It is noteworthy that, in certain cases, the legislator himself abstains deliberately from fixing a rule and acknowledges that he has recourse to this criterion of natural reason, which is presupposed as the intrinsic basis of law.
The ancient adherents to doctrines of jus naturale, Del Vecchio thinks, were wrong in so far as they attempted to identify natural law with the laws common to different peoples and hence the reaction of the empiricists resulted in an over-emphasis on the historic variability of law. This conflict, it is thought, is obviated by conceiving a series of positive laws as
unified by the tendency toward the development of natural law. This tendency, grasped by the mind a priori as an absolute and universal necessity, superior and anterior to any application in experience, develops through a long and laborious historical evolution. This should not be taken to mean that natural law begins to be true or becomes law only at the moment when it is recognized and actualized (for this would throw us into the old error); the additional positive recognition does not result in value or truth, but is, at the most, a consequence or result of its value or truth. Observance or non-observance per se, as facts of the empirical order, do not affect the intrinsic significance of the principle, which is essentially transcendental, and which is self-sufficient in its sphere regardless of its unrecognition or violation in fact.
It is difficult for one trained in Anglo-American legal ideas and traditions to appreciate or understand the point of view of Del Vecchio. But it is a point of view through which alone much of the legal thinking of Continental European nations becomes intelligible. Though the traditionalist or metaphysical approaches to an understanding of the law have had little vogue in England and in America, these legal systems have been far from free from metaphysical or transcendental legal notions.
Among the many modern exponents of religious and metaphysical theories of natural law only a few can be briefly mentioned. A summary of some of the views of a few representatives of this school may suggest the characteristics of the higher law philosophy in its religious and metaphysical garbs.
2. Theological Interpretation of Natural Law by Victor Cathrein. One of the special advocates of the religious and metaphysical approach to natural law is Cathrein. Cathrein classifies the opponents of the natural law philosophy in three groups: first, The Evolutionists, comprised of pantheistic monists such as Paulsen, Wundt, Kohler, and Berolzheimer, or of materialists such as Darwin and Spencer, or the economic determinists such as Marx and Engels all of whom deny the existence of concepts or principles of general and immutable value; second, The Empiricists, such as Binding and Merkel, who recognize concepts and general principles but pretend to discover them through the sole avenue of pure experience and comparison; and, third, Formal a priorism of the kind of Stammler, who, following the inspiration of Kant, wishes to bring back the immutable essence of law in a pure form, exclusive of all predetermined content.
Cathrein contends, in opposition to these tendencies, that every science and notably juridical science implies the necessity of concepts and general principles, in reality recognized by all, even by those who pretend to deny their existence. Referring to the point of view of Savigny and of the Historical School that the real source of law is to be found in the spirit or conviction of the people Cathrein claims that if one denies that there are general principles of law controlling the actions of men, one is led in a sort of circle to a supreme source of law in a "general consensus of right," the "convictions of the people," or custom. And these sources do not in fact carry one to the real origins of law, for natural law is "the indispensable foundation of positive law, since without it, one cannot conceive of any regular authority or of any legal protection, of which the state is the necessary instrument."
Law is an essential part of the moral order to Cathrein and from the concepts of the moral order juridical systems are evolved. Tracing the ultimate sources of law to divine origins he embodies much of his analyses in obtuse theological and supernatural notions which have tended to discredit the work among jurists inclined to view their field scientifically and practically.
The position of Cathrein as to natural law may be summarized as follows: There is a law of nature which governs the life of man, whether it is discovered and followed or whether man attempts to defy it; God is the primary source of this natural law and its secondary source is in its revelation of its principles to man; all human enactments to be valid are merely declaratory of this law. This natural law (Recht) is the indispensable foundation of positive law. It is universal and immutable. Though its rules may be discovered by reason, they do not arise from reason but from the superior will of the Creator.
Contrasting the modern German political-historical thinking with the characteristics of West-European and American political thinking, Ernst Troeltsch finds two lines of thought dominant in Western Europe one progressive, democratic, and revolutionary; the other conservative, aristocratic, and authoritative both based upon the Ancient and Christian ideas of an eternal-divine natural law. These ideas involve doctrines of the homogeneity of human beings, of the uniform destiny of humanity, and an abstraction of equality among men. Though many Germans, Catholics and Lutherans alike, follow the conservative, aristocratic, authoritative tradition, there is a new school which supports a religious-aesthetic ideal placing the emphasis upon the individual human intellect as a positive and creative force. In opposition to the rule of reason in the creation of the state and doctrines of equality and homogeneity among men, these modern German thinkers would found social and political organizations on individualistic and pluralistic hypotheses. In this romantic ideology natural law, whether progressive or conservative, has little place.
3. Metaphysical Doctrines of Geny. Based only partially on religious and doctrinal grounds a more effective exposition and defence of natural law principles from the metaphysical standpoint are to be found in the writings of Francois Geny.
Geny, who like Duguit ranks as one of the foremost jurists of France, has been laboring many years to have his countrymen value more highly the superior law concepts, which he conceives as the source and sanction of positive law. The former rationalist type of natural law, Geny thinks, suffers from an "aridness of analysis" and needs to be supplemented by "the pliant and rich fecundity of intuition." In fact Geny, along with others of the Metaphysical School, gives much emphasis to the rôle of intuition, or what is termed "intuitive understanding," in the determination of the ultimate purposes and the end of the law. Man, considered as he is, living amidst nature and society, finds himself, according to Geny, surrounded by an ensemble of "necessary relations which are derived from the nature of things." These arise from the physical, psychological, moral, social, as well as the metaphysical or transcendent factors which control and confine human actions. From these factors arise natural laws, some of which are transcendent to all experience. Man can acquire a knowledge of these transcendent rules and can be guided by them, though he cannot successfully resist them. To Geny these natural laws have a distinct relation to the religious and moral life of man. The fundamental problem of the jurist, no matter under what forms it maybe disguised, Geny thinks, is "the eternal problem of natural law [droit]. And while the doctrines of natural law have taken various forms, some of which continue to hold sway today, one no longer pretends to build through reason an ideal system of law, eternal and immutable, which is equally applicable to all times and all countries."
Though Geny recognizes a theoretical supremacy of natural law and suggests that in the case of an absolute conflict natural law must be superior to the written law he realizes the impracticability of this conclusion, and he says, "I believe for myself, that plain good sense, elementary observation, and universal testimony, acknowledging the primary necessity of order and recognizing that order can be established only by a rule emanating from an effective authority, suffice amply to justify to the reason the legitimate preeminence of the written positive law." The main obstacle, he thinks, which prevents the maintenance of the principles of natural law when they come into conflict with the positive written law is that these principles of natural law, however firm their basis, consist only of general directions of conduct. They are too abstract and too evanescent for the concrete circumstances of social life, especially when they clash with the definite judgments of formal authorities. It is his belief that this vagueness can in part be overcome by bills of rights in written constitutions wherein are expressed the essential principles of immutable natural law. This expedient, however, is regarded as unsatisfactory, for either the written constitution becomes over-rigid and an obstacle to legitimate progress or it loses its rigor in an indefinitiveness that discredits the value of a written instrument.
In his judgment, however, a rigid constitution judiciously used and broadly interpreted might be useful, if it could be given an effective sanction and if its precepts could be placed beyond the reach of ordinary law. Hence some method must be found to temper practically "the brutal power of the written laws, in order to stop their action or impair their results every time that they attempt to interfere with justice, to slight the objective factors of the social life, or to pass beyond the injunctions or prohibitions of natural law."
Among the devices to temper arbitrariness in the enforcing of the law Geny commends the "exception d'inconstitutionnalité," the declaring of a law invalid by the judiciary, which he believes could be adopted, in a measure at least, without contradicting any essential principle of French public law. On the contrary it is his judgment that such authority wielded by judges would serve to assure a guarantee of the indispensable application of the principles of public law. Admitting the difficulties and the weaknesses of the American plan of judicial review of legislative enactments to test their validity, which has led critics to speak of it as a "government by judges," Geny concludes that the organization of the judiciary in France and the traditions of the country would prevent such excesses and that it would be in "perfect harmony with the essential bases of the French constitution" to adopt a similar plan. To those who claim that the existing courts of France would be unequal to the responsibilities of so great a power and that a special court should be created for this purpose, Geny replies that such a proposal is wholly unnecessary and that from every standpoint the matter could be left to the jurisdiction of the regularly established tribunals.
Where no effective means are provided to check arbitrary authority on the part of the government Geny regards the right of resistance as legitimate, but the right must be surrounded by some obvious limitations in the direction of maintaining the individual rights of man. Admitting that when a conflict arises between positive law and natural law, positive law must prevail, he aims to modify the rigor of the strict enforcement of the written law and to suggest remedies whereby the flagrant injustice of its provisions may be prevented. In his judgment every possible device should be provided to check abusive applications of the law, which may lead, if not prevented, to forcible resistance.
To keep governmental agencies within reasonable bounds Geny says he agrees with Duguit and Hauriou that it is necessary to establish superior principles of law and right as a restraint on the majorities who make the law. As he sees it, concepts of justice must be sought which represent "a higher reality existing outside of ourselves."
It is necessary, Geny believes, to find the source of the law in natural law, which has developed from ancient times and has persisted in spite of all opposition and criticisms. He thinks it is not, as is often suggested, a means of supplying omissions in positive legal rules but the very foundation upon which positive rules rise and develop.
Speaking of the necessity of natural law, Geny says:
The problem of the existence of natural law remains today as always, the center of gravity of the positive juridical system. And, whether one acknowledges it or not, one perceives it underlying all the efforts which are pursued, in order to realize in an effective manner a better and more complete justice among men. On what bases would the state be established, which preserves in all its powers the positive rules of the social order, and from whence are the powers derived which form it, whether from a simple fact or from a group of principles. Those who make the law, the legislators, are they free to create this law to their liking, following their ideas, their interests, their passions or rather ought they to conform to a superior norm dominating all subjective impressions? Those who engage in the work of positive law, as administrators, those who interpret or apply it, in the capacity of judges, are they bound by this form, by the text of the law; ought they not to look beyond this, to penetrate to the sources, intimate and substantial, from whence they are derived, and those who obey the law, who ought to observe its precepts, to avoid its penalties, are these obligated to submit without recourse to its injunctions? Can they not understand, discuss, criticise the established rules, I mean not only as electors but as subjects; and do they not have the right to interpret, to modify, to transform the existing law, indeed, in extreme cases to rebel against it; this implies that they appeal to aspirations defying by their nature the variations of particular legal formulas? And, in the international domain also, where would the necessary rules be found to establish the relations between states, if there is no place for the reality of precepts, outside of the above positive rules, which are here always small and precarious.
On the whole, Geny has presented a thorough and suggestive analysis of natural law, with a leaning toward the religious and metaphysical points of view. He differs from Cathrein, however, in that he presents and criticizes the views of other natural law philosophers and attempts throughout to make practical applications of his theories.
The metaphysical types of natural law of Del Vecchio and of Geny, though differing in certain respects from the realistic approach to higher law by Duguit, have some characteristics in common with the rule of law (règle de droit). The higher laws to which all human civil enactments must conform are traced to different sources, the methods of their discovery vary, but substantially the same results follow. Legal norms which may be discovered by the reason or by the intuition of men stand above and guide the entire process of law-making and law enforcement. It is the duty of legislators, judges, and administrators to seek these norms and conform their interpretations to their superior directive force.
4. Natural Law Theories and International Law. A significant phase of the revival of natural law in Europe is apparent in the efforts to find an enduring basis for international law. Realizing the insecurity of international rules and agreements based solely on treaties, conventions, or a general consensus among the rulers of existing states there is a tendency to recur to general and universal principles of justice as discovered and interpreted through reason according to the methods of Gentilis, Grotius, and Pufendorf. Scholars and jurists are again raising the question whether in the international field, at least, there does not exist a natural or objective law, independent of the will of any state or group of states, and whether the action of states in this field is not limited to ascertaining and giving sanction to this natural law. This phase of the revival of natural law theories has so many ramifications that it is quite impossible to deal with it adequately in this treatise. Some representative opinions maybe cited to indicate one of the noteworthy trends in the efforts to establish international law on a more secure foundation.
The trend of thought today regarding the relation of natural law theories to the growth of international law is indicated in a symposium of views by well-known authorities on public law. The following questionnaire was submitted to a representative group of teachers and jurists:
Is the theory of natural law in relation to the law of nations, jus naturae et gentium, as advanced by Grotius, and developed in the course of the seventeenth and eighteenth centuries, in force today? That is to say, ought international and national courts as well as courts of arbitration to follow the principles of this theory, to interpret and to complete positive international law, in order to establish an accord of views among states?
In case of an affirmative reply to the question proposed above, is it the law of morality which forms the basis of the practical application of said theory or is it the objective solidarity of the interests of each of the states carefully considered? Or what other formula would be preferred?
The answers to the queries show a wide diversity of opinions. Most of the replies, referring chiefly to the first query, may be classified under a few groups. One group would discard natural law theories entirely because they "tend to confuse thought and to encourage loose and vague conceptions." Principles of natural law, according to this view, are valid only when accepted by the nations as a part of the customary international law. Another group regard natural law useful to assist justices and arbitrators, when interpreting existing rules of law and when there are deficiencies and uncertainties in the rules of international law applicable to controversies. Some in this group would prefer the use of the phrase "principles of equity" or "principles of morals and justice" to the term "natural law."
Others favor the use of natural law not only to interpret but also to supplement positive international law. Among this group Gustav Radbruch, German Minister of Justice, thinks international justices should have authority similar to the Swiss judges to fill gaps when written rules are inapplicable, and when necessary to use natural law as a guide. In fact, this authority is regarded as more necessary in international affairs because of the grave dangers arising from legal uncertainties and from unsatisfactory decisions. "The fact is of the greatest importance that even today natural law is not dead, is not a repudiated idea," he asserts,
but a reality which is active in a powerful way. Ernst Troeltsch has shown in a way that cannot be forgotten how the ideas of natural law and of humanity are powerful influences in the Western-European and American, as well as in the Catholic world of thought, and that a new approach for the German historical-organical-positive school to the natural law theory is desirable and inevitable.
If in international legal agreements, reference is made to the "highest fundamental principles of international politics," or to the "international moral law," or to the "fundamental principles of justice and humanity which cannot be renounced" as to something that is evident, what is really meant is the legal principles comprised in natural law. Not as a necessity of reason but as a forceful fact of history, a form of appearance of "approved teachings and traditions," these natural legal methods of thinking have to serve as a guiding star for the further development of international law just as they were decisive for its formation. But one is not allowed to regard these ideas of natural law as an arsenal from which the legal thoughts of international law can be taken as a finished product, but rather as an atmosphere in which such legal thoughts are formed. To make it clearer one may call this atmosphere with another word, "civilization."
Eugen Schiffer, German Minister of Justice, also insists that there is a place for natural law in the development of international law:
I have, to be sure, the heretical point of view, that is, that in the classification of the different elements of the administration of justice, the personality of the judge is foremost, the formulation of a method, comes second, and the positive law, last. An able judge almost always manages to get along with a defective method and an insufficient positive law; and, even if he has available a good method, he will mostly obviate the lack or the faults of the law at hand. On the other hand, the best formal law is of no use, if it is paralyzed in its realization by an unfit method, or if it is put into the hands of an unqualified judge.... Therefore, I have no doubt about it that a high international court will not be stranded by the lack of actual law which it has to administer, it will rather be its main task and its greatest worth to guide the wavering materials of international agreements and of legal international practices by a usus fori, and to bring them from the sphere of occasional actions of a political character to the level of firm and constant legal norms.
Naturally I would not have it understood that the question of actual law is not of farreaching importance for the highest courts. Furthermore I do not overlook the difficulties which are the result of the composition of these courts, with the political, cultural, and social points of view of their members who come from the most different fields of law, for the production of a common positive legal basis. Therefore, the question of the necessity of such a basis is absolutely justified, and, through the nature of international law, the positive parts of which have been badly diminished and shaken by the last world events, the problem of subsidiary law becomes very urgent. To my mind only the fundamental principles of natural law can be taken into consideration for such a law. I, at least, do not know any other law that could fill the gaps of positive international law. But these fundamental principles of natural law I would neither measure with the rule of international solidarity of interest nor with the scale of the recognized subjective interests of the states.
Professor Louis Le Fur of the University of Paris answered these questions in the affirmative and his views may well be quoted as indicative of a point of view gaming adherents in Continental Europe.
"The theory of jus naturae et gentium of Grotius," Le Fur observes,
is none other than the application to international relations of the traditional theory which is very old, since it goes back far beyond Christianity, and which distinguishes between the law laid down by men, the positive law, and a law anterior and superior to the will of man. In the century in which Grotius wrote, there was at times hesitation to apply to the sovereign state the principles of law, whether for reasons of pure abstract logic drawn from the nature of sovereignty, or for political considerations similar to those which inspired Machiavelli; as soon as the state was involved, which is always the case in international law, it appears that the question of law was no longer considered as it was when individuals were concerned. Now, the state is only a group of men governed by men; it can through its governors deny morality and law and be motivated only by its interests, that is to say, practically speaking, by its strength; but if the state recognizes juridical and moral rules, the bases of these rules cannot be different from the bases of those which apply to individuals. This is the truth of which Grotius caught a glimpse, but very often with less clearness than his predecessors of the Spanish school, such as Vittoria or Suarez; when applied to international law, it appears as the ultimate consequence of this truth established by experience that man is what has been called a "juridical being," a being whose characteristic it is to be ruled by law.
Le Fur thinks that man, being gifted with reason and a moral sense or conscience, and having social tendencies, possesses certain juridical characteristics which grow out of his life as a social being and from his own nature. When these rules acquire a sanction to compel obedience to them they become laws. Those are in error, he says, who confuse the state and the law and who consider the former a necessary condition of the latter. The state, he claims, cannot make law arbitrarily. The nature of human beings must be taken into account and their characteristics as beings gifted with reason and with a moral sense. This, in his judgment,
is the profound truth which has been expressed, under diverse names, by the wisdom of all the ages; if one has been able to speak of a philosophia perennis, there is in regard to essential principles a jus perenne which controls legal phenomena with more clearness. These diverse names signify none else than natural, or rational, or objective law, all these terms expressing the same truth, which is that law, the rule of life in society, the only life possible for man, is not an arbitrary creation of man. No being formulates for himself the laws which govern his life. Whatever the form of government of a people, be it monarchical or democratic, those who govern can do no more than recognize the law, deduce it from facts interpreted by the reason, and harmonize it with the circumstances of time and environment. For, although immutable in its fundamental nature which is no other than a moral principle, the idea of justice, itself the soul of law the law is very variable, on the contrary, in its application since, according to the degree of civilization, the circumstances of life in society are apt to vary quite considerably, from a three-fold point of view, that is an economic, an intellectual, and a moral point of view, and these three are far from always keeping abreast.
Conceiving natural law in the role of an ideal law, which is regarded as the traditional use of the term, Le Fur finds that there is no question about its place in a legal system. "To deny that there can be no other law than the positive law under pretext, for example, that there can be no law without a sanction, and that the positive law is the only law which has a sanction, is," he maintains, "to assert that the positive law is necessarily what it ought to be, and is to withdraw in this respect all law from criticism." He continues:
From what precedes it follows that all juridical relations must be conceived in two ways, or, if preferred, that there exist two kinds of law: a rational or natural law, with a moral basis, which is in itself an abstract truth as are all natural laws, existing objectively, as the latter, but unsuspected by men as long as it was not deduced by the effort of the human mind and a positive law by which those who govern attempt to make it effective, both having as an end the common good of the group to be governed, be it a patriarchal family, a tribe, a city, or a state.
In his opinion, just as there are limits which a state must recognize in its relations with individuals, so there are limits which bind states in their international dealings. Hence
one is under the necessity either to deny international law, to admit that the nations live in a pre-juridical state, without objective or conventional rules which bind them, war, the expression of the right of the strongest, being the only solution in conflicts or to recognize the existence of a natural or objective international law, which is not a pure form covering any sort of content, but rather a just and useful law, corresponding to the common good, and the common good is here that of the entire international community. Exactly as in the case of internal law, it is not arbitrary human wills, but really an historical, economical, and moral complex, which conditions international law.
Just as in the case of private law, arbitral courts and international tribunals must be guided, he thinks, not only by the interests of the states involved but also by principles of justice and of natural equity which are the background of all positive enactments. And, just as a national judge is authorized to make a rule where the written law is defective, international judges, when a pre-existing rule is lacking, must to a limited extent perform the functions of an international legislature.
The natural law to be applied by these judges is not of an immutable kind according to the eighteenth-century model nor of a variable type such as Stammler describes but a form of the concept with both permanent and variable characteristics.
"With regard to international law," says Sir Frederick Pollock, "it is notorious that all authorities down to the end of the eighteenth century, and almost all outside of England to this day, have treated it as a body of doctrine derived from and justified by the Law of Nature." "Here as elsewhere," he suggests, "we must apply the principle of Aristotle, and deem that to be reasonable, which appears so to competent persons. There must be a competent and prevalent consent, and the best evidence of such consent is constant and deliberative usage." There are those in England as elsewhere who vision a Magna Carta for the field of international relations which shall set the world on the path of legality rather than that of force to settle disputes between nations and which shall limit the scope of the arbitrary powers of sovereigns.
Though little progress has been made in formulating the rules and principles of natural law applicable to international relations it is a common belief that in the drafting and the interpretation of an international code modernized versions of the law of nature or law of reason will have a directive influence.
5. Theories of Natural Law Prevalent in Europe. In the extensive use which was made of the natural law philosophy in Continental European legal thinking since the eighteenth century there are apparent a variety of types of superior law theories. The inheritance of the Middle Ages furnished a form of higher law concept in the nature of law fundamental which was designed to keep rulers within recognized legal channels. Not only was there a foundation for a resistance to arbitrary rule which gave sanction to the leaders of rebellion and revolution but there was in this concept an ever-present criterion for judges and administrators to hold in check over-zealous officials. Such a higher law philosophy was supported by the continuance of the eighteenth-century theories of natural rights which result from notions either of the laws of God or of qualities inherent in the individual. The nineteenth-century concept of civil liberty a realm within which the individual is secure from political interference which emerges into a doctrine of limited government under constitutional sanctions, owes much to this form of the natural law philosophy.
The theologians and those influenced by the philosophy of the church, conceived natural law after the model of Thomas Aquinas, as an emanation from God. Its principles, which were eternal and universal, might be discovered through reason and revelation. Religion, morality, and politics were therefore only different phases of the same basic ideas. Civil enactments which failed to conform with the religious and moral standards revealed by the Church were denied validity.
Some jurists who no longer emphasized the religious background found for natural law a priori and metaphysical bases. They conceived a logical form or juridical norm to which all valid civil enactments must conform. Such a norm was in its essence universal an ideal becoming objective and directive as it conditioned all the processes of law-making and law enforcement. Not discoverable in any existing legal rules, it was inherent as a formal principle in all such rules which were just and valid.
As speculation on legal matters was fostered by the universities and courses in the philosophy of law were offered, natural law and the philosophy of law were thought of as identical. Thus natural law became synonymous with a series of ideal moral and legal principles which might be commented upon extensively. The philosophical mold into which natural law thinking was cast in the early nineteenth century gave it a wide currency in intellectual circles and brought it increasingly into contempt among politicians and practical lawyers. Certain treatises appearing at this time not only aimed to combine natural law and the philosophy of law but also to explain both of these in the light of religious and moral principles. Political practices and legal rules were put to the test of standards derived from this curious compound of speculations. No wonder that the very name of "natural law" became anathema among those who were seeking a scientific basis for social phenomena.
At all times natural law has been considered as a body of principles or doctrines, sufficiently well known and approved to be used by judges in molding the law to suit concrete cases or in filling gaps in the written rules as applicable to controversies. And at the same time it has been regarded as a body of doctrines or ideas available for jurists and legal writers as a standard for the criticism of existing laws and decisions, in the development of what Continental jurists call the jurisprudence and the doctrines of the law. In such a rôle natural law comprises a series of subjective and objective standards which may be used to determine the justice or reasonableness of legal rules. To some, these standards are universal and immutable. Sociological jurists, on the other hand, find in the natural law with a variable content standards adapted to the times and conditions which measure the reasonableness or justice of the rules enforced in a given society.
The political thought of the Middle Ages was affected by the ideas of government based on popular consent, of natural rights belonging to the individual, and of theories of contract as a basis of civil society. From such ideas arose a belief in higher laws which result from the common feelings and sentiments of the people. Concepts of law and of rights were traced to this popular source. The Historical School of jurists, though repudiating earlier doctrines of natural law, merely paved the way for another type of higher law doctrine one arising from the settled customs and traditions of the people.
The adherents of natural law fall into three main groups. First, those who place superior laws of a fixed, immutable character, usually religious or ethical in origin, over and above all the acts and rules of mankind. Following the Absolutists in their approach to philosophical problems they look upon lawmakers and judges as seekers "among divine sources for pre-existing truth." The inexorable rules of natural law may be discovered or not, but failure to abide by them will, in the course of time, result disastrously. Some of the theories of natural rights also predicated an immutable order with eternal laws, but rights and laws were among the inherent qualities of man in such an order. These rights, too, were to be discovered and applied but not changed. It is interesting to see how the absolutist concepts of natural law and natural rights keep recurring in legal thought whether founded on religious sanctions or on the inherent qualities of man.
The second group of thinkers undertake to find the underlying principles of law in the customs and the social life of man, or in the interests and duties of man as a human being. Recently theorists with this approach have sought the fundamental legal rules in community sentiment, the feeling for right (Rechtsgefühl), or in the concept of social solidarity. With a slight turn in emphasis this method of finding natural law leads to a "natural law with a variable content." Viewing higher law notions in a broad sense this group comprises some of the foremost analysts of legal phenomena on the Continent of Europe.
Natural law as an idealistic, progressive, and critical concept is what the third group is expounding. Interested in the philosophy of the law, they seek "the rational element which enters into the complex product of the legislation of every nation.... In practice, it is still often called by the name 'natural law,' which is opposed to the term 'positive law.' ... It is the ideal of the positive law, the type which the lawmaker ought to realize, and almost always pretends to realize." When, as with Stammler, the philosophy of law becomes the theory of propositions about law which have universal validity, one is in the field of natural law ideas.
In European political thought it is the ideal, progressive, and critical function of natural law which is uppermost. Whatever its sources or sanctions maybe the chief proponents of higher law ideas are not engaged in a search for final legal rules to which all mankind must yield obedience. They are directing their efforts to the discovery of fundamental principles, of directing norms, or of established standards by which the reasonableness or justice of legal rules may be measured. The absolutist, dogmatic concepts of natural law have been largely replaced by those characterized as "idealistic criticism."
It is, therefore, in the realm of jurisprudence and in the development of legal doctrines that natural law thinking prevails in European legal thought. Its functions are to guide, to criticize, and to measure the law as made by legislators and applied by judges so as to keep it in reasonable and just channels. The natural law concepts, then, whether used by judges or commentators are, to a large extent, as they were with the Roman jurists, creative forces in an epoch of progressive law-making.
1. See Tancrède Rothe, Traité de droit naturel théorique et appliqué, 6 vols. (Paris, 1885-1912). Rothe's work indicates in its incomplete form the inclusive features of natural law as conceived by certain Catholic writers. Among the subjects considered in the six volumes of the treatise are: the definition and nature of law and the state; the duties of men towards others and towards God; the relations of the individual to government; marital relations, the family and education; social and individual services, including the conditions and the rights relating to labor; and the rights of corporate organizations of labor and capital. A theological school composed of Protestants and Papal representatives led a reaction against the autonomy of the reason in religious, moral, and legal matters. For a defence of a metaphysical basis for natural law and for the philosophy of law, see Boistel, Cours de philosophie da droit (1899), Appendix.
Vareilles-Sommières, Dean of the faculty of law of Lille, in his Les principes fondamentaux du droit (Paris, 1889), divides the laws which are directly divine into natural laws and positive divine laws: "the natural laws are those which result as necessary consequences and as [forcement] willed by God, from the nature which he has given to us, and which manifest themselves to our reason alone....
The natural laws are universal and immutable since they are the necessary result of the nature of man and of those beings with whom he is in relation." Pages 20 ff.
Cf. also Theodor Meyer, Institutiones iuris naturalis, 2 vols. (1886-90).
2. Interpretations of Legal History, p. 33.
3. Vico frequently referred to the idea of a law of nature. He was one of the first to insist that it was not a fixed but a progressive law "a law varying with the stage of growth reached by a given community." Cf. G. de Montemayor, Storia del diritto naturale (Naples, 1911), especially chap. 11; Croce, The Philosophy of Vico, trans. by Collingwood (London, 1913); Benvenuto Donati, Domat e Vico, ossia del sistema del diritto universale (Macerata, 1923).
4. I presupposti filosofici della nozione del diritto (1905); Il concetto del diritto (1906); Il concetto della natura e il principio del diritto (1908), translated under the title The Formal Bases of Law in Comparative Legal Philosophy Series, X (Boston, 1914); cf. chap. 3.
5. The Formal Bases of Law, p. 18.
6. Ibid., pp. 76 ff., 258, 321, 333. For citations to Italian articles and works defending natural law, see ibid., p. 19.
7. See H. J. Randall, "An Italian Exposition of the Law of Nature," Law Quarterly Review, XXXIII (April, 1917), 161.
8. "Sui principi generali del diritto," reprint from Archivio Guiridico, XXXV, 4th ser., vol. I, fasc. 1, pp. 21 ff. I am indebted to Professor Del Vecchio for reprints of several of his articles and lectures on natural law. He has kindly consented to the use of translations of portions of his "Sui principi generali del diritto."
9. Del Vecchio, op. cit., pp. 34-42.
10. Georgio Del Vecchio, "Positive Right," Law Magazine and Review, XXXVIII (May, 1913), 297.
11. Del Vecchio, "Positive Right," op cit., p. 306. Positive right is that which at any given moment effectively governs the life of a people and hence is not restricted to rules established by statute.
12. The Formal Bases of Law, pp. 52 ff.
13. "Sui principi generali del diritto," pp. 23-25, or "Les principes généraux du droit," trans. into French by E. Demontes with a Preface by R. Demogue (Paris, 1925), p. 25, or "Die Grundprinzipien des Rechts," trans. by Albert Hellwig, pp. 24-26.
14. "Sui principi generali del diritto," pp. 47-49; "Les principes généraux du droit," pp. 50-52.
15. The Formal Bases of Law, p. 326. For other recent Italian interpretations of natural law, consult G. Brunetti, "Il diritto naturale nella legislazione civile," Rivista del diritto commerciale, XX (1922), Nos. 8-9, and M. Cordovani, "Il diritto naturale nella moderna cultura italiana," Rivista internazionale di filosofia del diritto, IV (1924), No 2.
16. V. Cathrein, Recht, Naturrecht und positive Recht, Eine kritische Untersuchung der Grundbegriffe der Rechtsordnung (2d ed., 1909). Geny speaks of this work as "imbued with the pure tradition of the Catholic Church," Science et technique en droit privé positif, II, 295; see also G. Platon, Pour le droit naturel Apropos du livre de M. Hauriou; Les principes du droit public (Paris, 1911).
17. Op. cit., pp. 14 ff., and Geny, op. cit., II, 301.
18. Op. cit., pp. 16-41, and Geny, II, 302. For approval of Cathrein's views by Geny, see II, 307 ff. Cf. also Gutberlet, Ethik und Naturrecht (3d ed., 1901).
19. Op. cit., pp. 145 ff.
20. Ibid., pp. 252, 253.
21. Geny thinks supernatural theorizing is not an essential part of Cathrein's work and he refers to Boistel and Cathrein as modern representatives of the classical conception of natural law. Op. cit., II, 350.
22. For a similar method of analysis, see James Lorimer, The Institutes of Law: A treatise of the Principles of Jurisprudence as Determined by Nature (2d ed., London, 1880).
A modernized form of the version of natural law of St. Thomas is in The Catholic Encyclopaedia, where natural law is regarded as comprised of three constituents:
first, a discriminating norm, which is of the essence of human nature itself as a reflection of the divine nature; second, a binding norm, which is evidenced in the divine authority requiring that individuals live in accordance with the first norm; and third, a manifesting norm, which is the result of the efforts of reason to determine the moral qualities of actions as limited by the first norm.
23. Op. cit., pp. 222 ff.; Geny, op. cit., pp. 314 ff.
24. Ernst Troeltsch, Naturrecht und Humanitat in der Weltpolitik (Berlin, 1923).
25. Op. cit., I, 16. He agrees with Phillipson that "as in science, metaphysical entities are being more and more imported, so in the sphere of law will those principles of natural law come to be more and more emphasized, through the ineradicable promptings of the intuitive consciousness of men and of states." Great Jurists of the World, p. 343.
26. Op. cit., pp. 43, 44.
27. Ibid., II, 10, 12.
28. Op. cit., IV, 72 ff.
29. Ibid., p. 78.
30. Cf. criticisms by Edouard Lambert on the practice of interpreting the general and vague phrases of written constitutions in the United States in Le gouvernement des juges et la lutte contre la législation sociale aux États-Unis (Paris, 1921).
31. Geny, op. cit., IV, 87.
32. Ibid., pp. 81 ff.
33. Ibid., IV, 91.
34. Ibid., pp. 101, 102.
35. Geny, op. cit., IV, 137 ff.
36 Ibid., II, 312 ff.
37. Ibid., IV, 213, 214. Saleilles remarks on Geny's concepts of natural law that he does not maintain that for a given institution there is a body of rules which possesses at least rational existence and which can be formulated into absolute truths; he does not maintain that on a given point any solution can appear in its concrete expression as a formula of natural law; he only contends that in the formulation of a judicial or legal rule judges and legislators have the right and the duty to be guided by ideas of justice, principles of reason, and axioms of equity, the philosophical forms of which would be the expression of immutable and intangible truths for all civilized peoples, "École historique et droit naturel," Revue trimestrielle de droit civil, I (1902), 87 ff.
38. Reviewing Geny's last volume of the Science et technique en droit privé positif, E. H. Perreau calls this the work of a true Benedictine "Le conflit du droit naturel et de la loi positive," Revue General du droit, XLIX (1925), 27.
39. Malberg consigns these so-called rules of natural or divine law to the moral or political realm and concludes that "it is a capital error of the jurists that they persist in supporting the doctrine of 'natural law,' an error from which it would be desirable to free the science of law for a long time." To Malberg a rule of law in the true sense can proceed only from the state, which by its superior force can give it a sanction. Contribution à la théorie générale de l'état, I (Paris, 1920), 237.
40. "Jus naturae et gentium; Eine Umfrage zum Gedächtnis des Hugo Grotius" in Niemeyers Zeitschrift für Internationales Recht, XXXIV (1925), 113-189.
41. Comments of Philip Marshall Brown, ibid., pp. 116-118.
42. See Niemeyers Zeitschrift für Internationales Recht, XXXIV, opinions of Fritz Fleiner, University of Zurich, pp. 121, 122; Friedrich Giese, University of Frankfort, p. 141; Eduard His, University of Zurich, pp. 142-144; Sir T. Erskine Holland, Oxford University, pp. 144, 145; Christian Meurer, University of Würzburg, p. 160; Karl Neumeyer, University of Munchen, p. 161; Karl Strupp, University of Frankfort, pp. 173, 174; Heinrich Triepel, University of Berlin, pp. 187, 188.
43. To this group belong Charles Dupuis, Institute of International Law, Paris, ibid., pp. 120, 121; Walter Burckhardt, University of Berne, pp. 118, 119; Alexander Pearce Higgins, Cambridge University, p. 142; George Kleinfeller, University of Kiel, p. 150. Recognizing that the prevailing view among English authorities on international law is that of the Positivist School, Professor Higgins says "appeals are, however, made to the underlying principles of the Law of Nature under the name of Reason or Justice when a test is sought for existing rules, or as a means of suggesting new rules to fill the gaps in the law which modern conditions disclose." Ibid., p. 142.
44. Rudolf Laun, University of Hamburg, ibid., 150-152; T. de Louter, University of Utrecht, 152; Joseph Mausbach, University of Münster, 152-160; Otto Opet, University of Kiel, 161, 162; Robert Piloty, University of Würzburg, 163, 164; Nicholas S. Politis, University of Paris, 165; Louis Le Fur, University of Paris, 122-140; Edgard Roubard de Card, University of Toulouse, 168, 169; André Weisz, University of Paris, 189.
45. Niemeyers Zeitschrift für Internationales Recht, XXXIV, 166 ff.; cf. Ernst Troeltsch, op. cit.
46. Niemeyers Zeitschrift fur Internationales Recht, XXXIV, 169-171. Duguit finds a real basis for international law in certain international norms exterior to the action of any individual state, which must form the basis for valid joint action in the form of legal rules of conduct. Traité de droit constitutionnel (2d ed.) I, 99 ff.
47. Niemeyers Zeitschrift fur Internationales Recht, pp. 122-140. See also, "Le droit naturel ou objectif s'étend-il aux rapports intemationaux," reprint from Revue de droit international et de législation comparée (1925). Le Fur states that he uses the terms "natural law" (droit) and "objective law" interchangeably and that "the second expression has gained general approval today in all countries; but the first one is the traditional expression, and the idea which it expresses rests on a very just basis, if one frees it from the errors which became incorporated in it during the eighteenth century (where, rather than a natural law, one speaks of a law of nature, having in mind a supposed state of primitive nature which would be a state of isolation). Nothing therefore keeps us from reclaiming this expression, once it is freed from the purely adventitious errors which had found their way into it, and this is, in fact, what every one is inclined to do today." Ibid., p. 60.
Portions of this article have been translated and are included herewith by the special permission of Professor Le Fur. See also, by the same author, "Le droit naturel et le droit rationnel ou scientifique: leur rôle dans la formation du droit international," Revue de droit international (July, August, and September, 1927); and "La théorie du droit naturel depuis le XVIIIe siècle et la doctrine moderne" (Paris, 1928)
48. Le Fur, Revue de droit international et de législation comparée (1925), pp 61, 62.
49. Le Fur, Revue de droit international et de législation comparée (1925), p. 62.
50. Ibid., p. 64.
51. Le Fur, Revue de droit international et de législation comparée (1925), p. 66.
52. Ibid., p. 67.
53. Ibid., p. 68.
54. Ibid , pp. 78, 79. An attempt has been made in France as well as in other countries, to base international law on the individualistic doctrine of the origin of law. It is called the theory of the fundamental rights of states. Just as an individual is regarded as having certain inherent rights, so states, it is asserted, have fundamental natural rights which must be respected by all other states. There exist, it is claimed, among the states fundamental, primitive, and absolute rights, rights which belong to every state in its relations with other states. Among some of the rights mentioned are independence, equality, respect, and international commerce. A. Pillet, "Recherches sur les droits fondamentaux des états," Revue générale de droit international public, V (1898), 66, 236; VI (1899), 503. For an American version of such fundamental rights, consult James Brown Scott, "The American Institute of International Law: Its Declaration of the Rights and Duties of Nations" (1916), and comments by Elihu Root in American Journal of International Law, X (1916), 211.
55. Cf. "Le droit naturel, le droit rationnel ou scientifique," op. cit., p. 37.
56. Essays in the Law, p. 63.
57. Ibid., pp. 63, 64. Cf. opinion of the English law officers (including Lord Mansfield) in the case of the Silesian Loan, that the law of nations is founded upon justice, equity, convenience, and the reason of the thing and confirmed by long usage." Holliday's Life of William Earl of Mansfield (London, 1797), p. 428.
58. W. S. McKechnie, "Magna Carta (1215-1915)," Malden, Magna Carta Commemoration Essays, pp. 22, 23.
59. Lord Russell remarks on the employment of the natural law method in modern international law, "International Law and Arbitration," American Bar Association Reports, XIX, 253, 268.
60. James C. Carter, Province of the Written and Unwritten Law, p. 9.
61. "The Latin group and the German group (which we shall combine here for brevity under the name of 'continental') admit the existence of law beyond the sphere of positive law; that is to say, they accept the existence of jural relations, although these relations may not have been validated by the legislator. Formerly these factual relations were evolved out of human nature (natural law); today they are predicated on conscience and public opinion which furnish the elements necessary for their support." Alejandro Alvarez, "New Conception and New Bases of Legal Philosophy," Wigmore Celebration Legal Essays (Chicago, 1919), pp. 29, 30.
62. Boistel, op. cit., secs. 1, 2. "The natural-law school seeks an absolute, ideal law, natural law ... by the side of which positive law has only secondary importance. The modern philosophy of law recognizes that there is only one law, the positive law, but it seeks its ideal side and its enduring idea." Berolzheimer, System der Rechts- und Wirtschaftsphilosophie, II, 17.
63. Cf. Zeitschrift fur Rechtsphilosophie, I, 4.
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