Chapter IV: Connexion of the Law of Nature with the Law of the Nations

This connexion belongs to the last days of the Roman Republic, and was probably due to that increased interest in philosophy and ethics which owed so much to the literary activity of Cicero, who was not only a statesman and an orator, but an ardent student of philosophy and a voluminous writer on philosophical, especially ethical, topics. It is the fashion now to depreciate Marcus Tullius. He was probably also depreciated in his own time. The learned black-letter lawyers, who had been his fellow pupils under Q. Mucius the Augur, doubtless said of him, as Sugden is reported to have said of Lord Chancellor Brougham, that if only he knew a little about law he would know something about everything. And the Greek philosophers with whom he loved to discourse probably hinted to one another, when their eloquent patron was not by, that, after all, no Roman would ever be a thinker. We can admit a measure of truth in both criticisms. But Wisdom is justified of all her children, and Cicero has outlived both the lawyers and the philosophers of his own time. His eager and capacious intellect, playing round political and legal, as well as metaphysical and moral inquiries, and using a brilliant style to popularize and render attractive all that he touched, gave a currency to the ideas of Greek speculators which made them tell more widely than ever before upon the Roman mind, and all the more so when, in the generation that succeeded his own, the career of political distinction through forensic and senatorial and platform oratory began to be closed by the growth of an absolute monarchy. Indeed Cicero’s own philosophical treatises were due to that retirement from active political life which the ascendency of Julius Caesar caused; and his composition of them was prompted (as he tells us) by a wish to stimulate the flagging public spirit of his younger contemporaries.

Now the theory of the Law of Nature, suggested by Heraclitus and Socrates, preached more actively by Zeno and Chrysippus, had been much discussed and widely diffused during the centuries between Aristotle and Cicero. Its acceptance and influence were aided by the changes which had been going on in the world, the Hellenization of Asia, the admixture of religions and mythologies, and that more easy and frequent intercourse between the Western and Eastern Mediterranean countries which enabled the peoples to know more of one another. The doctrine, though not confined to the Stoics, received among them special prominence, and became a corner-stone of their ethical teaching. Moral duty was by them practically deduced from, or identified with, the Law of Nature. Cicero, though he would not have described himself as a Stoic, substantially adopts their language on this point, and lays great stress on Nature as the source of the highest law and morality, invoking the doctrine in his speeches as well as expounding it in treatises[46]. With him the Law of Nature springs from God, is inborn in all men, is older than all the ages, is everywhere the same, cannot be in any wise altered or repealed. It is the basis of all morality. It ought to prescribe the provisions of positive law far more extensively than it in fact does, and to give that law a higher and more truly moral character. We might expect Cicero to go on, if not to identify it with the _ius gentium_ which he contrasts with the peculiar law of Rome, at any rate to describe it as the source and parent of _ius gentium_. This, however, he does not actually do, though more than once he comes near it[47]. _Ius gentium_ is to him a part of positive law, though much wider in its range than _ius civile_, whereas the Law of Nature is altogether an ethereal thing, eternal, unchangeable, needing no human authority to support it, in fact St. Paul’s ‘law written on the hearts of men.’

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Footnote 46:

See especially the fragment of his _De Republica_ preserved by
Lactantius, _Div. Inst._ vi. 8, 7.

Footnote 47:

Many writers have, however, thought that Cicero did mean to identify
_ius gentium_ and _ius naturae_, basing themselves on _De Off._ iii.
17, 69, and iii. 5, 23. Cf. also the words ‘lege ... naturae, communi
iure gentium’ in _De Harusp. Respons._ 15, 32, and ‘consensio omnium
gentium lex naturae putanda est’ in _Tusc. Disp._ i. 13. The point is
argued, at great length, by Voigt (_op. cit._ vol. i. pp. 65-75,
213-219, and Appendix II). Nor does Cicero quite precisely define the
relation of his Laws of Nature to positive law. He writes rather as a
moralist than as a jurist.

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Although Cicero was the most copious and eloquent writer among those Romans who pursued the study of philosophy in his generation, he did not by any means stand alone. Most of the prominent statesmen, orators, and authors occupied themselves with ethical speculation; and this was no less true of the leading spirits of the following century. The great jurists of the Augustan and post-Augustan age, such as Antistius Labeo, Massurius Sabinus, and Cassius, refer to the Law of Nature as a source of law already familiar. Two influences were indeed at work, which gave to philosophy a greater prominence than it had perhaps ever enjoyed before or has ever enjoyed since. Faith in the old religions having practically vanished from the educated classes, some substitute was needed, and the more pure and earnest minds sought this in philosophy. The career of political life having been, in its old free form, closed by the vesting of all real power in the hands of one person, who presently became recognized as legally sovereign, men were more and more led to seek solace, or enjoyment, or at any rate occupation, in the study of metaphysics and ethics. Jurisprudence continued to be pursued by many of the most powerful and cultivated intellects; and philosophy was not only a main part of education which such men received, but claimed much of their time and thought. They were so permeated by it, that both its methods and its principles must needs influence their treatment of legal matters, whether as writers, or as magistrates, or as advisers of the monarch and framers of legislation. The idea of the Law of Nature as the source of morality and the true foundation of all civil laws, the idea of all mankind as forming one natural community of which all are citizens, and in which all are equal in the eyes of Nature—this idea had come to pervade the minds of thinking men, whether or no they were professed adherents of any school of philosophy. It was taken as a generally accepted truth, and was therefore assumed and referred to without adducing arguments on its behalf, far removed from the actual facts of the world as was the ideal to which it pointed.

The growth and acceptance of the doctrine may be compared with the process whereby certain notions, now pretty generally received in nearly all civilized countries, have made their way during the last two centuries. Such are the doctrines known in America as those of the Declaration of Independence, and in France as the principles of 1789. Such is the doctrine of the freedom of the individual conscience, and the consequent wrongfulness of religious persecution. These doctrines began to be asserted (especially in England) during the seventeenth century. They were diffused slowly, and constantly denied by the powers that be, but they have been now virtually accepted in principle by all thinking men. Few think it necessary to argue on their behalf; yet they are very far from having secured their full effect, for in some countries the rulers refuse to apply them, and in almost all countries they are admitted to be subject to exceptions which render their full application difficult. They represent rather an ideal towards which society is held to be moving, than a positive basis on which existing society is built.

Although, however, the Romans of the earlier imperial period saw that their conception of the Law of Nature was a long way from being realizable in such a world as was then present, they also discovered in the changes that had passed upon that world much which recommended the conception as true and sound. The extension of Roman dominion was completing the process which the conquests of Alexander the Great had begun. Eastern religions invaded the West; Greek and Latin became world-languages; commerce brought all the Mediterranean peoples together; nations and nationalities were blent and ultimately fused in a common subjection to Rome. The provincial rose as the old Roman citizen sank, so that equality came nearer and nearer. The old mutually exclusive systems of citizenship and law seemed obsolete; and therewith the traditional reverence for the ancient legal institutions of the Quirites passed away, even from the conservative minds of lawyers[48]. In particular the idea of a community of all mankind, as opposed to the small civic communities of earlier days, began to approach a realization in the great empire which had gathered all civilized men under its wings, had secured for them peace, order, and a just administration of the laws, and had admitted every one, whatever his race, tongue, or birthplace, to a career of honourable ambition in civil and military office, a career whose possibilities included even the imperial dignity itself.

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Footnote 48:

There does not, however, seem to be any ground for the notion that the
Roman lawyers ever despised _ius gentium_ as only fit for inferior
people; that they deemed it ‘an ignoble appendage to their civil law,’
as Sir H. Maine says. That this was ever their feeling is mere
surmise. No traces of such a view appear in our authorities.

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For this all-embracing commonwealth, this _societas omnium hominum_, of which the Greek philosophers and Cicero had written, and which had taken concrete shape in the Roman Empire, there would seem to be needed some common law, since the ideas of law and state were correlative[49], according to the dictum, _Quid est civitas nisi iuris societas[50]?_ Now there was a law which could actually be applied to all Roman subjects, non-citizens and citizens alike, and which was supposed to be the law common to all men as being the law which all nations used, and which had therefore been applied by Roman Courts where persons outside the pale of Roman law proper were concerned. Just as the law of Rome drew its authority from the will of the people, whether signified expressly by enactments or tacitly by usage and consent, so this general law rested on custom, on the understanding and will of collective mankind, evidenced by their practice; and its source was therefore one which met and satisfied the view that the community are the source of law. Now this common law of mankind was the _ius gentium_. Though in point of fact gathered and moulded by Roman Courts, it was deemed to represent the essence of the law which prevailed among various neighbour peoples, and of the usages which common sense and the needs of commerce had sanctioned among men in general, wherever dwelling. It was conceived of as being common to all mankind (_ius commune omnium hominum_[51]) (_omni humano generi commune_[52]), or as the law which exists among all peoples (_ius quod apud omnes populos peraeque custoditur_[53]) (_ius quo gentes humanae utuntur_[54]). It was applicable to persons who had no rights of citizens in any city (ἀπόλιδες)[55]. It was coeval with the human race itself (_cum ipso humano genere proditum_[56]). It was in all these respects contrasted with _ius civile_, just as the Law of Nature (_ius naturale_) was similarly contrasted. Finally it was the law which natural reason had created (_ius quod naturalis ratio constituit_[57]). When this point had been reached, it became practically identical with the Law of Nature, and the identity, implicitly suggested in Cicero’s remark that the agreement of all nations must be deemed a law of nature[58] was formally enounced by jurists at least as early as the time of Hadrian. In Justinian’s _Institutes_ the identification is complete.

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Footnote 49:

Not, of course, in the Austinian sense that law is only what the State
has expressly enacted, for the ancients always dwell upon custom
(_mores maiorum, consuetudo inveterata, consensus utentium_) as a
chief source of law.

Footnote 50:

Cic. _De Rep._ i. 32. 49.

Footnote 51:

Gaius, _Inst._ i. 1; _Dig._ i. 1. 9.

Footnote 52:

In _Inst. Iust._ i. 2. 2, taken from Marcian.

Footnote 53:

Gaius, _Inst._ i. 1.

Footnote 54:

Ulpian in _Dig._ i. 1. 1, 4.

Footnote 55:

Marcian in _Dig._ xlviii. 19. 17.

Footnote 56:

Gaius in _Dig._ xli. 1. 1, _pr._

Footnote 57:

Gaius, _Inst._ i. 1. The formal express and specific identification is
to be found only in some jurists, and is most explicitly stated by
Gaius. There does not, however, seem to be sufficient ground for
thinking (as Voigt, _op. cit._, argues) that there was any real
difference of opinion among them. Their language on these points is
seldom precise.

Footnote 58:

See p. 137, note 47, _supra_.

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A third conception, to which reference has not yet been made, contributed to this fusion, viz. the conception of Equity (_aequum et bonum, aequitas_). Equity means to the Romans fairness, right feeling, the regard for substantial as opposed to formal and technical justice, the kind of conduct which would approve itself to a man of honour and conscience. It completes the idea of the higher kind of law by adding a third element, or rather a third source, that which springs from the breast of man and represents his natural sense of justice, his sympathetic good feeling towards his fellow men. Thus we may say that seen from the point of view of theology or metaphysics, this universal or Natural law is prescribed by God or by Nature. Seen from that of history and political science, it issues from the will of mankind, who, organized as nations, have created it by custom and practice. Seen from the side of ethics and psychology, it represents the tendencies and habits of the typical good man, who desires to treat his neighbour as he would wish to be himself treated. The coincidence of these three streams of origin or lines of thought enlarges the conception, defines it, gives to it, taken as a whole, a harmonious symmetry. Thus it becomes complete on its theoretical as well as on its practical side.

In the Roman jurists of the best age we note three qualities not always united in lawyers—a love for theoretical perfection, an attachment to ancient usage, and a sense of practical convenience. The first delivered them from the tyranny of the second, the second moderated their devotion to the first, the third found a middle term between the other two and guided them in the adjustment of principle to fact. The blending of the notion of Natural Law, as the ethical standard of conduct and the ideal of good legislation, with the notion of the law formed by the usages and approved by the common sense of all nations as embodying what was practically useful and convenient, satisfied both the philosophical and the historical instincts of the jurist. Had there been a similar combination of ideas and habits in the English jurists of the seventeenth and eighteenth centuries, our legal progress would have been more rapid, and, if the phrase be permissible, more ordered and rhythmical.