Chapter VI: Meaning Attached by the Roman Jurists to Nature

Now let us inquire a little more closely what the Roman jurists and legislators meant to convey when they talk of Nature, or the Law of Nature, and what are the positive rules of law which they ascribed to this source, or established in obedience to this principle.

The following senses in which they use the word Nature may be enumerated, though these cannot be sharply distinguished, for some run into others.

1. The character and quality of an object, or of a living creature, or of a legal act or conception (e.g. _natura venenorum_, _natura hominum_, _natura apium_ (_fera est_), _natura contractus_, _natura dotis_).

2. The physical system of the Universe (_rerum natura_), and the character which it bears. Thus it is said that Nature has taken some objects (_e.g._ the sea and air) out of the possibility of private ownership.

3. The physical ground of certain relations among men, as for instance of blood relationship (_cognationem natura constituit_). So the rule that children born out of wedlock follow the condition of the mother is ascribed to Nature (_liberi naturales_); so the rule that persons under puberty should have a guardian.

4. Reason, whether in the sense of logic and philosophical principle on the one hand, or as meaning what we should call ‘common sense’ on the other, is often denoted by the term Nature. Nature (it is said) prescribes that no one should profit by harm and injury to another, and that whoever bears the disadvantages of a thing should also reap the advantages of it; and Nature allows a buyer to make a profit on a re-sale. The expression Natural Reason (_naturalis ratio_) is commonly used when the former meaning is to be conveyed, and Paulus indeed says that Natural Reason is a sort of tacit law. To use the term Reason as equivalent to common sense and convenience comes very near the doctrine that Utility is the basis of law, and the word _utilitas_ is frequently employed by the Romans.

5. Good feeling and the general moral sense of mankind. For instance, Nature directs that parents should be supported by their children, and that a freedman should render a certain respect and help to his patron. Nature prohibits theft, and makes certain offences (_e.g._ adultery) disgraceful, while other offences are not necessarily base (_turpia_). So—and this is an interesting illustration of Roman sentiment—it is against Nature to contemplate the probability that a freeman may become a slave—although this is an event which may sometimes happen. One may refer either to this or to the preceding category the ascription to Nature of the principle that faith must be kept by a debtor, even where he has not bound himself in a formal way. (_Is Natura debet quem iure gentium dare oportet, cuius fidem secuti sumus._)

One jurist only, Ulpian, gives a yet further sense to the term Law of Nature, making it cover those instincts and physical relations which other animals have in common with man, and which may be called the raw material upon which Custom acts[66]. But this fancy of his, which appears now and then in other ancient writers[67], and received great attention in the Middle Ages because the passage was embodied in Justinian’s _Institutes_, is devoid of practical importance even for Ulpian’s own treatment of legal topics. It has been much ridiculed by the moderns, but has recently received a sort of reinforcement or illustration from an unexpected quarter. Mr. Darwin has suggested that the origin of our moral ideas is to be sought in the accumulated experience of animals, which in the course of long ages ripened, to some slight extent, in the higher species, and ultimately ripened far more completely in man, into the beliefs and usages which govern the life of primitive peoples, and out of which morality has been insensibly developed in comparatively recent times. Upon any such hypothesis the gap between man and other animals would become less wide, and a certain community might be ascribed to them with man in what may be called the rudimentary protoplasm of customary law.

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Footnote 66:

‘Natural Law is that which Nature has taught all animals; for that
kind of law is not peculiar to mankind, but is common to all
animals.... Hence comes that union of the male and female which we
call marriage; hence the procreation and bringing up of children.’

Footnote 67:

As, for instance, in Pliny the Elder’s ascription to the lower animals
of moral sentiments (_Hist. Nat._ viii. 5; viii. 16, 19; x. 52).
Michael Drayton’s lines, of birds pairing in spring,—

‘And but that Nature by her all-constraining law,
Each bird to her own kind this season doth invite,’—

hover between Ulpian’s ‘Law of Nature’ and the ‘Laws of Nature’ of
modern science.

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In its practical applications, the idea of Nature or the Law of Nature, blent with the idea of Equity (for the two terms are in some departments, and in the mouths of many jurists, equivalent and interchangeable), extends itself over nearly the whole field of law. It supplements or modifies the relations of parents and children, of patrons and freedmen, and even of slaves, as these relations had been established by the ancient strict law of Rome. A slave is to _ius civile_ merely a thing, but a regard for Nature causes him to be treated as being in some respects a person. In the law of property, of inheritance, of obligations, and of procedure, a great many principles drawn from this source have been embodied in rules which qualify or supersede the rigour of the older law in most important points. It is only by examining these in detail that the skill, and tact, and sound judgement, which the Romans showed in working out the idea, can be duly appreciated. To enumerate them here would, however, be impossible: one might as well try to enumerate the numerous points in which Equity has affected and amended the common law of England.

Speaking broadly, the Law of Nature represented to the Romans that which is conformable to Reason, to the best side of Human Nature, to an elevated morality, to practical good sense, to general convenience. It is Simple and Rational, as opposed to that which is Artificial or Arbitrary. It is Universal, as opposed to that which is Local or National. It is superior to all other law because it belongs to mankind as mankind, and is the expression of the purpose of the Deity or of the highest reason of man. It is therefore Natural, not so much in the sense of belonging to men in their primitive and uncultured condition, but rather as corresponding to and regulating their fullest and most perfect social development in communities, where they have ripened through the teachings of Reason[68]. But if any disciple of Bentham, looking not at the sonorous language occasionally used to describe its origin, but at its practical applications, calls it the expression of good sense and good feeling, the law which springs from an enlightened view of Utility, he will not be far wrong, as indeed the idea of practical convenience is frequently associated with those of Nature and Reason in the Roman texts[69]. A modern precisian might say that the Romans ought to have called it not ‘the Law of Nature,’ but ‘materials supplied by Nature for the creation of a law,’ a basis for law rather than the law itself. To the Romans, however, such a criticism would probably have seemed trivial. They would, had the distinction been propounded to them, have replied that they knew what the critic meant, and had perceived it already; but that they were concerned with things, not words, and having a practical end in view, were not careful about logical or grammatical minutiae.

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Footnote 68:

This is, broadly speaking, the view of the Classical jurists. But
occasionally, especially in late times, phrases are used which point
to primitive societies as governed by the natural law: e.g. _Novell.
Iust._ lxxxix. c. 12, § 5.

Footnote 69:

So in a fragment preserved by Dositheus, a jurist of classical times
says of ‘ius naturale vel gentium’—‘omnes nationes similiter eo
utuntur: quod enim bonum et aequum est omnium utilitati convenit.’

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This conception, or at any rate the attempt to apply this conception to Positive Law, would seem to be exposed to two dangers. One is that of wasting time and pains in hunting for those institutions or rules which are most characteristic of man in the earlier stages of his progress, or which have been in fact most generally in vogue among men. This danger the Roman jurists completely avoided. Their Law of Nature had nothing to do with any so-called State of Nature, and they never troubled themselves about primitive man, leaving him to the poets and the philosophers. And though they talked of their _ius gentium_ as roughly equivalent to their _ius naturae_, we do not find them endeavouring to support their view of what is reasonable and natural by instances drawn from such and such peoples who had adopted the rules they had themselves made part of their _ius gentium_[70]. They are content to ascribe to _ius gentium_ that which is so obviously reasonable and convenient that the general usage of mankind approves it, such as the principle that the shores of the sea are open to the common use of all (a principle which, however, English and Scottish law have never fully admitted), the principle that a thing which has no owner becomes the property of the finder, the principle that a debtor ought to pay his debts. _Redde quod debes aequissima vox est, et ius gentium prae se ferens._

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Footnote 70:

Although they sometimes dwell on the fact that an institution is to be
found among all nations. So Gaius observes of Guardianship, ‘Impuberes
in tutela esse omnium civitatium iure contingit, quia id naturali
rationi conveniens est ut is, qui perfectae aetatis non sit, alterius
tutela regatur; nec fere ulla civitas est in qua non licet parentibus
liberis suis impuberibus testamento tutorem dare’ (_Inst._ i. 189).

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The other danger is that the idea of Nature, as the true guide to the making and interpreting of law, may lead to speculative vagueness, and that the identification of Nature with Morality may tempt the legislator or the judge into efforts to enforce by law duties best left to purely moral sanctions. This danger also the Romans escaped. They escaped it by virtue of their eminent good sense and their practical training. The lofty precepts of morality which they were fond of proclaiming, and which they sometimes declare it to be the duty of the lawyer to teach and of the magistrate to apply, had after all not much more to do with the way in which they built up the law than the flutings of the columns or the carvings on the windows have to do with the solid structure of an edifice. These decorations adorned the Temple of Justice, but were never suffered to interfere either with its stability or with its convenience for the use of men. In point of fact, the rules of Roman law, down to the age of Constantine, whose successors, wanting the sage advisers of an earlier day, tried some foolish experiments, furnish a model of the way in which moral principles should be applied to positive law. Though the Romans did not in theory draw any very clear line between the sphere of law and that of morals, they succeeded admirably in practice in keeping their moral zeal on the safe side of the line which divides the standard of conduct which the State may, and that which it had better not, try to enforce; while they certainly did impart to the law as it left their hands a spirit of honour, good faith, and equitable fairness which modern systems have never surpassed, and which is in some respects higher than that of our own English law.

The Roman jurists of the first three centuries of the Empire were a unique phenomenon in the history of mankind, and they had a unique opportunity. They were at once the makers, the expounders, and the appliers of law. They worked for the whole civilized world. They were hampered by no meddlesome legislatures, for legislatures did not exist, and hardly at all by capricious monarchs, for the good Emperors encouraged them, while the voluptuaries, as well as the unlettered soldiers, left them alone. Their only restraint was that useful and necessary one which dwells in the deference of the wise for one another, and in the respect of the leaders of a great profession for the opinion of the profession as a whole. They were not indeed philosopher-kings in Plato’s sense, but they were sufficiently imbued with the spirit of philosophy to value principle and to rise superior to prejudice. Accordingly they were able to do a work which has been of inestimable value for all time, since it has become, like the philosophical ideas of the Greeks and the religious ideas of the Semites, part of the common heritage of mankind. Rome is the only city to which it has been given to rule the whole of the civilized world, once as a temporal, once as a spiritual power. In both phases she welded the diverse and incongruous elements into a united body, whose elements, even when they had again been disjoined, retained traces of their former union. And on both occasions it was largely through law that she worked, the ecclesiastical law of her later period being an efflux of the civil law of her earlier.

We have now traced the origin and growth of the conception of a Law of Nature in the ancient world, and have perceived how, having taken shape and received an ethical colour among the Greeks, it was turned to practical account by the Romans. It was not to them, as it has often been deemed by recent English writers, a purely negative and barren conception, nor was it wholly a destructive and, if the expression may be permitted, a ground-clearing conception. Doubtless a large part of its work was done in first undermining and finally overcoming the traditional authority of the old peculiar and usually cumbrous Law of the City (_ius quiritium_), which was often harsh and sometimes arbitrary. Another part was done in explaining old rules so as to amend their operation. But the conception of Nature as a source of Law was also a corrective and expansive force, not merely in sweeping away what had become obsolete, but also in establishing what was new and suited to the time. It found a solid basis for law in the reason and needs of mankind, and it softened the transition from the old to the new, first by developing the inner meaning of the old rules while rejecting their form, extracting the kernel of reason from the nut of tradition, and secondly by appealing to the common sense and general usage of mankind, embodied in the _ius gentium_, as evidence that Nature and Utility were really one, the first being the source of human reason, the latter supplying the grounds on which reason worked. Thus the idea of Nature, coupled with that of customs generally observed by mankind, which embodied their experience, became a fertile and creative idea, which turned the law of a city into the law of the world, and made it fit to be a model for succeeding ages.