Chapter II: Origin of the Conception of Natural Law

When the observer applies himself to social phenomena, he perceives again, as he has perceived in studying the whole animated creation, two facts equally patent and equally general—Uniformity and Diversity. In human customs, civil and religious, in the rules and maxims and polities of tribes and nations, there are many things wherein one community differs from another[27]. But there are also many things wherein all agree. All deem some acts, and speaking generally, though with many variations, the same kinds of acts, to be laudable or pernicious, and award praise or penalties accordingly. All recognize somewhat similar relations between individuals, or families, or classes, as indispensable, and try to adjust and regulate these relations upon similar principles. The forms which such relations take are no doubt differentiated by the particular stage, be it higher or lower, of civilization which various peoples have respectively reached. The customs of a number of savage tribes, while bearing some resemblance _inter se_, bear a slighter resemblance to those of more advanced nations. Yet even between the savage tribe and the semi-civilized or civilized community there are marked similarities, and the customs of the former are perceived often to contain the germ of what has been fully developed among the latter.

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Footnote 27:

The famous dictum which Herodotus quotes from Pindar, ‘Custom is the
king of all mortals and immortals,’ is quoted to show how usage makes
a thing seem right to one people and wrong to another, but it was
afterwards often taken in the sense of an assertion of the supremacy
of Law over all things. Cf. Herod. iii. 38, and Chrysippus, _apud_
Marcian in Justinian’s _Digest_, i. 3. 2.

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Now the customs and rules wherein tribes or nations agree are evidently the result of dispositions and tendencies which belong to man as man. In other words, they are the expression of what is permanent, essential, and characteristic of man, so that if a traveller were to come upon some hitherto undiscovered tribe, he might expect to find these phenomena present there, just as in each child as it grows up there appear the familiar qualities and tendencies which belong to the whole human species. Hence such phenomena of usage are deemed to be normal, and therefore Natural, that is, they are due to the Force which has made the human species what it is. So here in the sphere of human customs and institutions we perceive the same contrast between that which is variable as being due to circumstance or environment, or what we call chance, and that which is constant and uniform as being due to causes present, if not everywhere, yet at any rate in the enormous majority of cases. And the source of the constancy is to be found here in the political, no less than in the ethical and social sphere, in the constitution of man as a moral and intellectual being. Nature is therefore, on this view, a ruling power in social and political phenomena as well as in those of material growth and of moral development.

The customs and usages of mankind are the early forms of what come afterwards to be called Laws—seeing that all law begins in custom—as indeed the Greeks call both by the same name. Accordingly those who began to philosophize about human society gave shape to their speculation in theories about Laws.

Now Laws, the rules and binding customs which men observe and by which society is held together, fall into two classes. Some are essentially the same, in all, or at any rate in most communities, however they may superficially vary in their arrangement or in the technical terms they employ. They aim at the same objects, and they pursue those objects by methods generally similar. Other laws differ in each community. Perhaps they pursue objects which are peculiar to that community; perhaps they spring out of some historical accident; perhaps they are experimental; perhaps they are due to the caprice of a ruler. Those which prevail everywhere, or at any rate, generally, appear to issue out of the mental and moral constitution common to all men. They are the result of the principles uniting men as social beings, which Nature, personified as a guiding power, is deemed to have evolved and prescribed. Hence they are called Natural. Being the work of Nature, they are not only wider in their area, but also of earlier origin than any other rules or customs. They are essentially anterior in thought as well as in date to the laws each community makes for itself, for they belong to the human race as a whole. Hence they are also deemed to be higher in moral authority than the laws which are peculiar to particular communities, for these may be enacted to-day and repealed to-morrow, and have force only within certain local limits.

This antithesis of the Customs and Laws which are Natural, Permanent, and Universal to those which are Artificial, Transitory, and Local, appears in some other fields as well as in that purely legal one which we are about to consider. In particular, it takes three forms, which may be called the Ethical, the Theological, and the Political.

The ethical appears early, and indeed before there is any proper science of Ethics. One of the first difficulties which men advancing in civilization encounter is the conflict between the Law of moral duty ruling in the heart and the laws enacted by public authority which may be inconsistent with that law. This conflict is the subject of the _Antigone_ of Sophocles. We are all familiar with the famous lines in which the heroine replies to the king, who had accused her of breaking the laws of the city, by declaring that those laws were not proclaimed by Zeus or by Justice, who dwells with the deities of the nether world:—

οὐ γάρ τί μοι Ζεὺς ἦ ὁν κηρύξας τάδε
οὐδ’ ἡ ξύνοικος τῶν κάτω θεῶν Δίκη.

Antigone goes on to say that these laws of the gods, unwritten and steadfast, live not for to-day or yesterday, but for ever, and no one knows whence they spring:—

οὐ γάρ τι νῦν γε κἀχθές, ἀλλ’ ἀεί ποτε
ζῇ ταῦτα, κοὐδεὶς οἶδεν ἐξ ὅτου ᾿φάνη.

The same poet enforces the same view in a lofty passage of another drama, where the moral laws are described as the offspring of the gods, and not of man’s mortal nature, and which no forgetfulness can ever lap in slumber[28].

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Footnote 28:

Soph. _Antig._ l. 450; _Oed. Tyr._ l. 865.

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The idea frequently recurs in later literature, and is nowhere more impressively stated than in the _Apologia_ of Socrates, where the sage speaks of himself as being bound to obey the divine will rather than the authorities of the State, treating this divine will as being directly, though internally, revealed to him by ‘a divine sign,’ and being recognized by his own conscience as supreme.

The theological view is vaguely present in early times, as for instance in Homer, where certain duties, such as that of extending protection and hospitality to suppliants, are associated with the pleasure and will of Zeus. It is most familiar to us from St. Paul, who compares and contrasts the Law of Nature, which prescribes right action to all men, being instilled into their minds by God, with the Positive revealed Law which God has given to one particular people only.

‘When the Gentiles which have not the Law, do by nature the things contained in the Law, these, having not the law, are a law unto themselves; which show the work of the law written in their hearts, their conscience also bearing witness, and their thoughts the meanwhile accusing or else excusing one another[29].’

A similar view, _mutatis mutandis_, is found in not a few of the Greek philosophers. Heraclitus speaks of one divine law whence all human laws draw nourishment. Socrates, as reported by Xenophon, contrasts the laws

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Footnote 29:

Rom. ii. 14, 15, where ‘hearts’ is probably to be taken in the ancient
sense, which regards the heart and not the brain as the seat of the
intellect. Cf. also Rom. i. 20, ‘For the invisible things of God from
the creation of the world are clearly seen, being understood by the
things that are made, even his eternal power and Godhead, so that they
are without excuse.’

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of the city with the unwritten laws which in every country are respected as substantially the same, and says that these latter laws were laid down by the Gods for mankind[30], adding that the fact that their infraction carries its own penalty with it seems to suggest a divine source. Similar passages occur in Plato, who contrasts abstract justice and rightful laws with the actual laws and customs that prevail in political communities. The contrast becomes more definite in Aristotle, whose views are specially important, because they profoundly influenced the scholastic philosophers of the Middle Ages. He divides Justice as it appears in the State into that which is Natural and that which is Legal or Conventional, the former having everywhere the same force, while the latter consists of matters which were originally indifferent and might have been settled in one way or another, but which have become positively settled by enactment or custom. Some (he proceeds) think that there is no such thing as Natural Justice, because ‘just things’ are not the same everywhere, whereas physical phenomena are everywhere identical. This is true: nevertheless, even as the right hand is naturally stronger than the left, although there are left-handed men, so there is a real difference between rules which are and rules which are not natural[31]. Similarly, in a more popular treatise, Aristotle divides law into that which is Common, being in accordance with Nature and admitted among all men, and that which is Peculiar (ἴδιος), settled by each community for itself[32]. This he treats as a familiar conception, to which an advocate pleading a cause may appeal when he finds positive law against him. He quotes the passage already cited from Sophocles, and two lines of Empedocles descanting on Universal Law. So Demosthenes refers to the ‘common law of all mankind’ which justifies a man in defending his property by force[33].

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Footnote 30:

Xen. _Memor._ iv. 4, 19 sqq. θεοὺς οἶμαι τοὺς νόμους τούτους τοῖς
ἀνθρώποις θεῖναι. These words are put into the mouth of Hippias, but
are part of the argument which Socrates conducts.

Footnote 31:

_Eth. Nicom._ v. 7.

Footnote 32:

_Rhet._ i. 10 and 13: Λέγω δὲ νόμον τὸν μὲν ἴδιον τὸν δὲ κοινόν, ἴδιον
μὲν τὸν ἑκάστοις ὡρισμένον πρὸς αὑτούς, καὶ τοῦτον τὸν μὲν ἄγραφον τὸν
δὲ γεγραμμένον, κοινὸν δὲ τὸν κατὰ φύσιν. Ἔστι γὰρ, ὃ μαντεύονταί τι
πάντες, φύσει κοινὸν δίκαιον καὶ ἄδικον, κἂν μηδεμία κοινωνία πρὸς
ἀλλήλους ᾖ μηδὲ συνθήκη.

The lines of Empedocles refer to what it seems strange to call a part
of Universal Law, the abstention from killing a living thing—τὸ μὴ
κτείνειν τὸ ἔμψυχον· τοῦτο γὰρ οὐ τισὶ μὲν δίκαιον τισὶ δ’ οὐ δίκαιον

ἀλλὰ τὸ μὲν πάντων νόμιμον διά τ’ εὐρυμέδοντος
αἰθέρος ἠνεκέως τέταται διά τ’ ἀπλέτου αὐγῆς. (_Rhet._ i. 13.)

Footnote 33:

_Against Aristocrates_, 639.

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The Stoics took up the idea and worked it out with great fullness and force, especially on its ethical side. They developed the Aristotelian conception of Nature as the guiding principle immanent in the universe. This principle is Reason, _i.e._ the Divine Reason; and Natural or Common (= Universal) Law is its expression. So also in Man, who is a part of universal nature, Reason is the ruling and guiding element, ordering all his faculties in such wise that when they are rightfully developed in action he is obeying his true nature. Thus the formula ‘to live according to Nature’ becomes the concise statement of what is at once his duty and his happiness.

Philosophers were however by no means unanimous on the subject. The Sceptics and the New Academics denied altogether that there was such a thing as the ‘naturally just (φύσει δίκαιον),’ pointing to the diversities in the positive law of all States, and also to the disagreements among speculative thinkers. But the Socratic or Aristotelian or Stoic view prevailed, having ethical or religious considerations to recommend it to those who greatly desired to find an ethical basis for life, and, if possible, create thereout a religion.

What I have called the Political form of the idea is to be found in the notion, as old as Epicurus, that there is a close connexion between the Law of Nature and the Common Good, a connexion sometimes represented by saying that Natural Justice prescribes what is useful for all, sometimes by holding that practical utility is the test of whether any law is to be deemed to have the authority of Nature behind it[34]. This notion comes right down through the ancient world to modern times, and is really implicit in nearly all that has been written on the subject. No one would have repudiated the high metaphysical or theological view of the Law of Nature more vigorously than Bentham, yet there is an affinity between his method of applying utility as against positive laws and the methods of several of the ancient philosophers. And so a German critic is justified when he talks of Bentham and Austin as the ‘propounders of theories of Natural Law.’ With the political outcome of the idea, however, we are not at this moment concerned. It is enough to indicate how it has found expression in these various fields[35].

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Footnote 34:

Epicurus described Natural Justice as an agreement made for the sake
of common advantage: τὸ τῆς φύσεως δίκαιον ἔστι σύμβολον τοῦ
συμφέροντος εἰς τὸ μὴ βλάπτειν ἀλλήλους μηδὲ βλάπτεσθαι (Diog. Laert.
x. 150).

Footnote 35:

Since this Essay was in type I have seen the article _On the History
of the Law of Nature_, by Sir F. Pollock, published in the _Journal_
of the Society of Comparative Legislation for Dec. 1900, and
simultaneously in the _Columbia Law Review_, Jan. 1901; and am happy
to find myself in substantial agreement with him upon all points of
importance connected with the subject. Some branches of it, especially
the Greek and mediaeval parts of the history of the idea, are treated
of more fully by him, and the whole article is full of interest.
Judicious remarks and useful quotations will also be found in Prof. D.
G. Ritchie’s _Natural Rights_ (published in 1895), Part i; and in Dr.
Holland’s _Elements of Jurisprudence_, pp. 30-38 of ninth edition.

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What I have sought to do in this introductory statement is to show how the notion of Nature as a force governing social as well as physical phenomena grew up, and to indicate the wide influence it had attained at the time when Rome became mistress of the world. Let us now turn to the Romans, and inquire what they meant by Natural Law, how the conception shaped itself in their hands, and to what practical use they turned it.

The Roman conception has two sources, the one historical, the other theoretical. I begin with the historical, which is the earlier in date, and incomparably the more important[36].

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Footnote 36:

A very minute and careful collection of the authorities regarding _Ius
Naturae_ and _Ius Gentium_ may be found in the book of Dr. Moriz
Voigt, _Die Lehre vom Jus Naturale, aequum et bonum und Jus Gentium
der Römer_. I do not find myself always able to agree with his views,
but they are stated with painstaking ability, and the citations have
often aided me.

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