A SURVEY OF THE DEVELOPMENT OF NATURAL LAW DOCTRINES
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. 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. 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.
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
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. Early Greek philosophers speculated chiefly
about the physical universe, but the Sophists directed attention toward the
state and its relations to individuals. With the Sophists the man-made nomoi
were likely to be contrasted with the universal laws emanating from the
gods. 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."
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. 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
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. 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. 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." 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. The idea of the sovereignty of law was one
of the fundamental principles of Greek thought; 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. 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. 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. 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.
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. To Cicero, who became an advocate of Stoic
doctrines, the law of nature became the source and limit of all
rights. 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.
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. 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. 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, 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. 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 —
This classification, though merely suggested by Roman commentators, was
followed with scrupulous care by certain mediaeval jurists. 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." 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.
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. 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. 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
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. "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.
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.
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
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."
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. 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. 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. 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. 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.
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
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.
Rules of the third class were eventually referred to as the secondary laws
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 and
of Hugo Grotius.
Spanish jurists in the sixteenth and seventeenth centuries, antedating the
work of Grotius, 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." 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. 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.
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 and divided it into divine
rules ordained by God and rules prescribed by man. He and his successors made use of the law of
nature theory in formulating the basic principles of international
law, 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. 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.
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. 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
"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, 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." 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. 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. 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." 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.
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.
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
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. 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
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,
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.
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),
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),
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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