Chapter VIII: The Law of Nature in Modern Times

When the European mind, stimulated by Greek literature and by the ecclesiastical revolt of the sixteenth century, as well as by a group of coincident external causes, began to play freely round the great subjects of thought, a still wider career opened for this ancient conception. The history of that career, however, belongs to the domain of philosophy and of political science rather than to that of jurisprudence. Though it was chiefly from the Roman texts that the men of the Renaissance and Reformation eras drew their notions of Nature and natural law[77], and though the term _ius gentium_ reappears as indicating the recognition of Natural Law by mankind at large, the speculations which these notions inspired turned largely upon such questions as the origin of law in general, a point which, as already observed, had not much occupied the Romans, and (still more) upon the source of authority and political power, and on the right of any constituted authority to demand obedience. The systems of the Middle Ages, which deduced the powers of the Pope from Christ’s words to St. Peter, and the powers of the Emperor either directly from God or mediately through the Pope, and which found the source of all other spiritual and temporal power in some sort of delegation from one or other of these potentates, had now vanished, and thinkers were much concerned to find a new and sounder foundation on which to plant the Monarch and the State. Thus Nature came to play a new part: and presently there appeared theories regarding an original State of Nature, a conception not necessarily connected with that of the Law of Nature, yet one which has historically been closely associated therewith. This newly-invented State of Nature was neither the Golden Age of Hesiod, nor the _Saturnia regna_ of Virgil, nor the brutish savagery (_mutum et turpe pecus_) of Horace. The man of the State of Nature was highly intelligent, and he was also highly self-assertive. In Hobbes he appears as in perpetual war with his fellows[78]; and that ingenious and uncompromising philosopher finds in this fact the basis of his theory of the State, holding that men, in order to get rid of their distracting strife, agreed with one another to surrender all their natural rights to get what they can for themselves by force into the hands of a Monarch, who thereby acquired a perpetual title to the obedience of all; the contract, since not made with him, being nowise dissoluble in respect of any misfeasance on his part. Locke, on the other hand, argues for a Natural Law which issues from Reason, is prior to all governments, and being superior to them entitles men to vindicate their natural rights against tyranny. With him, therefore, as with most thinkers of the seventeenth and eighteenth (and indeed also of earlier) centuries, Natural Law, being the offspring of Reason and the foundation of Natural Rights, is the ally of freedom. It is invoked, under the name of Natural Right, by the framers of the Declaration of Independence in 1776, and therewith enters the field of modern politics as a conqueror. Contemporaneously the doctrine was being spread over the Old World by Rousseau in his theory of the State of Nature and the Social Contract (first published in 1762): and it presently became the basis of the Declaration of the Rights of Man made by the French Convention in 1789.

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Footnote 77:

The Romans had been content to derive law (see Essay X, p. 76) from
the will of the people, whether expressed directly by legislation or
tacitly by customs, and this doctrine continued to be enounced under
the autocracy of Justinian much as it had been in Republican times.

Footnote 78:

With Hobbes compare the view of Spinoza, _Tractatus
Theologico-Politicus_, cap. xvi.

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The old theory had now developed into a destructive political force. Any one can see to-day that this revolutionary quality was always latent in it: the singular thing is that, unlike most revolutionary ideas, it should have kept the explosive element so long dormant. That which had been for nearly two thousand years a harmless maxim, almost a commonplace of morality, became in the end of the eighteenth century a mass of dynamite, which shattered an ancient monarchy and shook the European Continent. Liberty, Equality, Fraternity, are virtually implied in the Law of Nature in its Greek no less than in its French dress. They are even imbedded in the Roman conception, but imbedded so deep, and overlaid by so great a weight of positive legal rules and monarchical institutions as to have given no hint of their tremendous possibilities.

Let us return from this glance at the political history of the conception to note three directions in which it has acted, in modern times, within the sphere of law proper.

The first of these is its action upon the law of England. Our system of Equity, built up by the Chancellors, the earlier among them ecclesiastics, takes not only its name but its guiding and formative principles, and many of its positive rules, from the Roman _aequitas_, which was in substance identical with the Law of Nature and the _ius gentium_. For obvious reasons the Chancellors and Masters of the Rolls did not talk much about Nature, and still less would they have talked about _ius gentium_. They referred rather to the law of God and to Reason. But the ideas were Roman, drawn either from the Canon Law, or directly from the _Digest_ and the _Institutes_, and they were applied to English facts in a manner not dissimilar from that of the Roman jurists. The very name, Courts of Conscience, though the conscience may in the immediate sense have been the King’s, suggests that moral element on which the Romans insisted so strongly; and the wide, sometimes almost too wide, discretionary power which Equity judges exercised, finds its prototype in the passages in Roman texts which refer to natural equity as the consideration which guides the judge in qualifying, in special cases, the normal strictness of law. A passage in the remarkable little book called _Doctor and Student_, written by Christopher St. German early in the sixteenth century, observes that the term ‘Law of Nature’ is not much employed by English common lawyers, who generally prefer (it is remarked) to talk of the Law of Reason, and to say that such and such a rule is grounded in reason, or that reason points to such and such a conclusion. Nevertheless the author recognizes the Law of Nature or Reason as one of the three departments of the Law Eternal or Will of God, which is made known to man partly by Reason, partly by Divine revelation in the Scriptures, partly by the orders of princes or of the Church, having an authority derived from God. Some (it is added) say that all the law of England is part of the law of Reason; but St. German prudently doubts whether this can be proved. However, we have here another evidence of the influence of the old conception, and even, in the reference to a general Law of Nature shared in by unreasonable creatures (‘for all unreasonable creatures live under a certain rule to them given by Nature, necessary for them to the consideration of their being’), a recurrence of the old notion countenanced by Ulpian, that the Law of Nature extends to the lower animals as well as to mankind. Nor are dicta of English judges referring to the Law of Nature wanting. Yelverton, under Edward the Fourth, says that in the absence of authority the judges ‘should resort to the Law of Nature which is the ground of all laws.’ And the law merchant, _i.e._ the customs commonly observed by traders of divers countries, is referred to as part of the Law of Nature by Lord Chancellor Stillington in the same reign[79]. Here we have the old identification of _ius naturae_ and _ius gentium_ which was beginning in Cicero’s days. Still later, the idea reappeared in the doctrine that as the Law of Nature is the foundation of all law, positive enactments plainly repugnant to it or to Common Right and Reason (an equivalent expression) ought to be held invalid. Dicta to this effect were delivered by Lord Coke and Lord Hobart, and were approved by Lord Holt; though little (if any) effect has ever been given to them. Similar references to the ‘eternal principles of justice’ as capable of overruling the acts of State legislatures may occasionally be gleaned from the reports of cases decided by American State Courts. Blackstone, repeating Cicero, declares that ‘the Law of Nature is binding over all the globe in all countries: no human laws are of any validity if contrary to this[80]’; and he ascribes to ‘natural reason and the just construction of law[81]’ the extension which his contemporary, Lord Mansfield, gave to the enforcement of implied contracts[81]. So we find the Indian Civil Procedure Code of 1882 laying down that a foreign judgement is not operative as a bar if it is, in the opinion of the Court which deals with the question, ‘contrary to natural justice.’ But the chief practical applications in recent times of the ancient conception have, very appropriately, arisen where European judicial administration has been brought into contact with foreign semi-civilized peoples on whom the law of their European conquerors could not properly be imposed. Thus in British India the Courts have been directed to apply ‘the principles of justice, equity, and good conscience[82]’ in cases where no positive law or usage is found to be applicable.

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Footnote 79:

I owe these references to Sir F. Pollock’s Essay in _Columbia Law
Review_, already mentioned.

Footnote 80:

_Commentaries_, Introd. § 2.

Footnote 81:

_Ibid._ bk. iii. chap. ix.

Footnote 82:

See on this subject Sir C. P. Ilbert’s _Government of India_, chap.
vi. The expression ‘equity and good conscience’ in this connexion is
as old as the Charter to the E. India Company of 1683; _ibid._ chap.
i. p. 21.

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The second line of action is the part which the terms _ius naturae_ and _ius gentium_ played in the creation of International Law. That branch of jurisprudence has a twofold origin. It is due partly to customs which grew up among maritime nations in the course of trade, together with the usages and understandings which formed themselves in the diplomatic intercourse of States, partly to the doctrines thought out and delivered by a succession of legal writers, of whom the most famous are Hugo Grotius, Albericus Gentilis, Leibnitz, and Puffendorf. These thinkers, finding that large parts of the field of international relations were not covered by pre-existing custom, or that the existing customs were often discrepant, were obliged to seek for some general and permanent basis whereon to build up a system of positive rules. This basis could not be looked for in the laws of any State or States, because no such laws could have force beyond the limits of those States, and that which was needed was something which all States were to observe. Neither could it be expressly deduced from the Imperial Roman law, because the Romano-Germanic Empire had become a mere shadow of its former self, and the old Roman law, being the law of a State (though a World-State), did not contain all the necessary materials, not to add that anything imperial was in the earlier part of the seventeenth century regarded with suspicion by Protestants. Accordingly, Grotius and his successors recurred to the Law of Nature as being, according to the theory of the ancient Roman jurists, a law grounded in reason and valid for all mankind. They used it copiously, and some of them called their writings ‘Treatises on the Law of Nature and of Nations,’ using the old phrase _ius gentium_[83] in what began to be taken as a new sense[84]. It was indeed their wish to represent this Law of Nature as being essentially a Law for the Nations, _i.e._ a law governing the intercourse of nations. There had in fact been always a close connexion between the two conceptions. For although the Roman jurists of imperial times had employed the term ‘Law of the Nations’ to denote, not the law applicable between nations, but a part of the law which was applied within the Roman dominions, still they had held their _ius gentium_ to have been not only created by the customs of the nations of the world, but therewith also binding on nations generally, and to be indeed (save in some special points) a concrete embodiment of the law which Natural Reason gives to all mankind. Thus the name ‘Law of Nature and Nations’ became well settled; and it is only in our own days that the more precisely descriptive (if not quite satisfactory) term ‘International Law’ has, in superseding the older name, acquired a general acceptance.

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Footnote 83:

When he uses the phrase _ius gentium_, Grotius dwells on the fact that
its force springs from the Will of the Nations which use it, and he
observes that when it is ascribed to the will of all nations it is
practically _ius naturale_, but that there is much of it which rests
on the will, not of all, but only of many nations, since sometimes we
find a _ius gentium_ holding good in one part of the world which does
not exist in other parts.

Footnote 84:

Grotius, who (differing but little from the old schoolmen) defines the
eternal and immutable Law of Nature as ‘dictatum rectae rationis,
indicans actui alicui ex eius convenientia aut disconvenientia cum
ipsa naturali ratione inesse moralem turpitudinem aut necessitatem
moralem, ac consequenter ab auctore naturae Deo talem actum aut vetari
aut praecipi,’ distinguishes from it the more arbitrary laws of God
(_ius voluntarium_) which God may change, whereas He cannot change His
own Natural Law any more than He can make two and two anything but
four. In another place he observes that Human Nature itself is the
mother of natural law, and (through contract) great-grandmother of
civil (= positive) law. ‘Naturalis iuris mater est ipsa humana natura,
quae nos, etiamsi re nulla indigeremus, ad societatem mutuam
appetendam ferret’ (here repeating Aristotle), ‘civilis vero iuris
mater est ipsa ex consensu obligatio, quae cum ex naturali iure vim
suam habeat, potest natura huius quoque iuris quasi proavia dici’
(_Proleg._ 9. 16). He had just before said, ‘Cum iuris naturae sit
stare pactis, necessarius enim erat inter homines aliquis se obligandi
modus, neque vero alius modus naturalis fingi potest; ab hoc ipso
fonte iura civilia fluxerunt. Nam qui se coetui alicui aggregaverant,
aut homini hominibusque subiecerant, hi aut expresse promiserant, aut
ex negotii natura tacite promisisse intelligi, secuturos se id quod
aut coetus pars maior, aut hi, quibus delata potestas erat,
constituissent.’ His _ius divinum voluntarium_ is divided into that
part which was delivered by God to all mankind at the Creation, after
the Flood, and at Christ’s coming, and that part which was delivered
to Israel alone. It is therefore Revealed Law, and so different from
the Law of Nature.

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Thirdly, the expression Law of Nature has, within comparatively recent times, obtained in Germany, France, and Italy, the meaning of the Philosophy of Law, that is to say, the metaphysical basis of legal conceptions and of the most general legal doctrines. Some observations will be found elsewhere in this volume[85] upon this _Naturrecht_ or _Droit Naturel_, to which much labour and thought have been devoted by Continental writers, though very little by those of England or of the United States. Whatever value the works of these writers may have for metaphysics or ethics, they shed comparatively little light upon law in its proper sense. The study of Law in general seems nowadays likely to be practically useful chiefly on its concrete side, as what the Romans call a _ius gentium_, that is to say, as a collection and examination, a criticism and appraisement of the rules adopted by civilized nations on topics with which the legislation of all or most of such nations has to deal. In other words, Comparative Jurisprudence promises more fruit than abstract speculation on the foundations of law.

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Footnote 85:

See Essay XII.

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