James Bryce Bryce.

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Eternal Law, and in men is the light which carries
this eternal law into their souls, being applied by con-
science.

I cannot here pursue an inquiry into the treatment of
these notions by the scholastic theologians and philo-
sophers, nor by their successors who belong to the
school of the Catholic Renaissance in the sixteenth cen-
tury, for the subject is a vast one. Neither have I space
to deal with the students and teachers of the Roman
Law during the thirteenth, fourteenth, and fifteenth cen-
turies, of whom however it may be said that Natural
Law has in their pages a less definite character than it
bore to the ancient jurists, and is more coloured by that
ethical atmosphere which they found in the treatment of
it by Cicero and Aristotle and by such ecclesiastical au-
thorities as Gratian and St. Thomas. It was during
these centuries less widely and effectively used in the
sphere of pure law than in those of speculation and actual
political controversy. In these latter spheres it played
a great part, being appealed to by the advocates as well
of imperial as of papal pretensions, the one side claiming
its support for the temporal, the other side for the
spiritual potentate. All admitted that it stood above
both these powers, and some maintained that where
either power transgressed it, he might be. lawfully re-
sisted by his subjects 2 . Now and then princes put it

> Summa Theologiat^ prima secundae, Q. xciv. 2.

a On this subject see the authorities collected and luminously expounded by Pro.
fessor Dr. Gierke in bisjo&annes Althusiut, chap. vi.



596 THE LAW OF NATURE

forward as a ground for legislation. Philip the Fair of
France, proposing to liberate serfs, says (A.D. 1311) that
' every human creature formed in the image of Our Lord
ought by natural law to be free.' Now and then a jurist
specifies matters in which it limits the legislator's power,
as Baldus says, neither Emperor nor Pope could validly
authorize the taking of usury 1 . But one can hardly
say that the idea emerges as an independently forma-
tive power in the growth either of the Canon Law in
Europe, or of the law of Islam in the East, for the ob-
vious reason that ecclesiastical systems do not need it.
The Bible in Christendom, the Koran where Islam ruled,
supplied all the philosophical basis and all such indica-
tions of the Divine Will as were needed to give law a
moral character; So, although the term is indeed fre-
quently used by mediaeval writers of all types, it is gene-
rally used with a theological or ethical bearing. Na-
ture, except in such a sense as was given to it by St.
Paul, or in such expressions as were sanctioned by
Aristotle or by the texts of the jurists, would have
sounded strange, and might have savoured of hetero-
doxy. As the Chancellor says in the second part of
Goethe's Faust

1 Natur und Geist ! so spricht man nicht zu Christen :
Desshalb verbrennt man Atheisten.'

Yet throughout this period the place which this con-
ception holds and the function which it discharges in the
world of thought, if not in that of practice, are of high
import. It is an assertion of the supremacy of the eter-
nal principles of morality, of the duty of princes to obey
those principles, of the right of citizens to defend them,
if need be even by rebellion or tyrannicide. It proclaims
the responsibility to God of all power, whether spiritual
or temporal, and the indestructible rights of the indi-

1 Gierke, ut supra. Baldus and other jurists declare that the Emperor 4 tenetur
ratione natural!, cum ius naturae sit potentius principatu,' and one goes so far as
to hold him to be also bound by ius gentium. See Arthur Duck, De Usu et A uthori-
tate luris Civilis, bk. i. chap. iii. 12.



THE LAW OF NATURE 597

vidual human being. Finding in the Divine Justice the
ultimate source of all law, it imposes a restraint upon
the force which positive law has at its command, and
sets limits to the validity of positive laws themselves.
Whether or no the individualistic spirit of the Teutonic
races contributed to this remarkable change from the
attitude of the Roman lawyers is a question I will not
attempt to discuss. But it is clear that the influence of
Christian teaching had, even under a dominant and per-
secuting ecclesiastical system, stimulated the vindication
in the name of Natural Law of principles which are the
foundation both of civil and of religious liberty.



VIII. THE LAW OF NATURE IN MODERN TIMES.

When the European mind, stimulated by Greek litera-
ture and by the ecclesiastical revolt of the sixteenth
century, as well as by a group of coincident external
causes, began to play freely round the great subjects
of thought, a still wider career opened for this ancient
conception. The history of that career, however, be-
longs to the domain of philosophy and of political
science rather than to that of jurisprudence. Though
it was chiefly from the Roman texts that the men of the
Renaissance and Reformation eras drew their notions
of Nature and natural law 1 , and though the term ius
gentium reappears as indicating the recognition of Na-
tural Law by mankind at large, the speculations which
these notions inspired turned largely upon such ques-
tions as the origin of law in general, a point which, as
already observed, had not much occupied the Romans,
and (still more) upon the source of authority and politi-
cal power, and on the right of any constituted authority
to demand obedience. The systems of the Middle Ages,

1 The Romans had been content to derive law (see Essay X, p. 525) from the will
of the people, whether expressed directly by legislation or tacitly by customs, and
this doctrine continued to be enounced under the autocracy of Justinian much as it
had been in Republican times.



598 THE LAW OF NATURE

which deduced the powers of the Pope from Christ's
words to St. Peter, and the powers of the Emperor
either directly from God or mediately through the Pope,
and which found the source of all other spiritual and
temporal power in some sort of delegation from one
or other of these potentates, had now vanished, and
thinkers were much concerned to find a new and sounder
foundation on which to plant the Monarch and the State.
Thus Nature came to play a new part : and presently
there appeared theories regarding an original State of
Nature, a conception not necessarily connected with
that of the Law of Nature, yet one which has historically
been closely associated therewith. This newly-invented
State of Nature was neither the Golden Age of Hesiod,
nor the Saturnia r-egna of Virgil, nor the brutish sava-
gery (mutum et turpe pecus) of Horace. The man of
the State of Nature was highly intelligent, and he was
also highly self-assertive. In Hobbes he appears as in
perpetual war with his fellows 1 ; and that ingenious and
uncompromising philosopher finds in this fact the basis
of his theory of the State, holding that men, in order to
get rid of their distracting strife, agreed with one an-
other to surrender all their natural rights to get what
they can for themselves by force into the hands of a
Monarch, who thereby acquired a perpetual title to the
obedience of all ; the contract, since not made with him,
being nowise dissoluble in respect of any misfeasance
on his part. Locke, on the other hand, argues for a
Natural Law which issues from Reason, is prior to all
governments, and being superior to them entitles men
to vindicate their natural rights against tyranny. With
him, therefore, as with most thinkers of the seventeenth
and eighteenth (and indeed also of earlier) centuries,
Natural Law, being the offspring of Reason and the
foundation of Natural Rights, is the ally of freedom. It
is invoked, under the name of Natural Right, by the

1 With Hobbes compare the view of Spinoza, Tractattts Theologico-Politicus,
cap. xvi.



THE LAW Or \ATURE 599

framers of the Declaration of Independence in 1776, and
therewith enters the field of modern politics as a con-
queror. Contemporaneously the doctrine was being
spread over the Old World by Rousseau in his theory of
the State of Nature and the Social Contract (first pub-
lished in 1762) : and it presently became the basis of the
Declaration of the Rights of Man made by the French
Convention in 1789.

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

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

The first of these is its action upon the law of England.
Our system of Equity, built up by the Chancellors, the
earlier among them ecclesiastics, takes not only its name
but its guiding and formative principles, and many of its
positive rules, from the Roman aequitas, which was in
substance identical with the Law of Nature and the ius
gentium. For obvious reasons the Chancellors and Mas-
ters of the Rolls did not talk much about Nature, and
still less would they have talked about ius gentium. They
referred rather to the law of God and to Reason. But



600 THE LAW OF NATURE

the ideas were Roman, drawn either from the Canon
Law, or directly from the Digest and the Institutes, and
they were applied to English facts in a manner not dis-
similar from that of the Roman jurists. The very name,
Courts of Conscience, though the conscience may in
the immediate sense have been the King's, suggests
that moral element on which the Romans insisted so
strongly; and the wide, sometimes almost too wide,
discretionary power which Equity judges exercised,
finds its prototype in the passages in Roman texts which
refer to natural equity as the consideration which guides
the judge in qualifying, in special cases, the normal
strictness of law. A passage in the remarkable little
book called Doctor and Student, written by Christopher
St. German early in the sixteenth century, observes that
the term * Law of Nature ' is not much employed by
English common lawyers, who generally prefer (It is
remarked) to talk of the Law of Reason, and to say that
such and such a rule is grounded in reason, or that
reason points to such and such a conclusion. Never-
theless the author recognizes the Law of Nature or
Reason as one of the. three departments of the Law
Eternal or Will of God, which is made known to man
partly by Reason, partly by Divine revelation in the
Scriptures, partly by the orders of princes or of the
Church, having an authority derived from God. Some
(it is added) say that all the law of England is part of
the law of Reason; but St. German prudently doubts
whether this can be proved. However, we have here
another evidence of the influence of the old conception,
and even, in the reference to a general Law of Nature
shared in by unreasonable creatures (' for all unreason-
able creatures live under a certain rule to them given
by Nature, necessary for them to the consideration of
their being '), a recurrence of the old notion counte-
nanced by Ulpian, that the Law of Nature extends to the
lower animals as well as to mankind. Nor are dicta of
English judges referring to the Law of Nature wanting.



THE LAW OF NATURE 601

Yelverton, under Edward the Fourth, says that in the
absence of authority the judges ' should resort to the
Law of Nature which is the ground of all laws.' And
the law merchant, i.e. the customs commonly observed
by traders of divers countries, is referred to as part of
the Law of Nature by Lord Chancellor Stillington in
the same reign 1 . Here we have the old identification
of ius naturae and ins gentium which was beginning in
Cicero's days. Still later, the idea reappeared in the
doctrine that as the Law of Nature is the foundation
of all law, positive enactments plainly repugnant to it
or to C mmon Right and Reason (an equivalent expres-
sion) ought to be held invalid. Dicta to this effect were
delivered by Lord Coke and by Lord Hobart, and were
approved by Lord Holt ; though little (if any) effect has
ever been given to them. Similar references to the
' eternal principles of justice ' as capable of overruling
the acts of State legislatures may occasionally be gleaned
from the reports of cases decided by American State
Courts. Blackstone, repeating Cicero, declares that
' the Law of Nature is binding over all the globe in all
countries : no human laws are of any validity if contrary
to this 2 ' ; and he ascribes to ' natural reason and the
just construction of law 3 ' the extension which his con-
temporary, Lord Mansfield, gave to the enforcement of
implied contracts 3 . So we find the Indian Civil Proce-
dure Code of 1882 laying down that a foreign judgement
is not operative as a bar if it is, in the opinion of the
Court which deals with the question, ' contrary to na-
tural justice.' But the chief practical applications in re-
cent times of the ancient conception have, very appro-
priately, arisen where European judicial administration
has been brought into contact with foreign semi-civi-
lized peoples on whom the law of their European con-
querors could not properly be imposed. Thus in British

1 I owe these references to Sir F. Pollock's Essay in Columbia Law Review,
already mentioned.

2 Commentaries, Introd. 2.

3 Ibid. bk. iii. chap. ix.



602 THE LAW OF NATURE

India the Courts have been directed to apply ' the princi-
ples of justice, equity, and good conscience l ' in cases
where no positive law or usage is found to be applicable.
The second line of action is the part which the terms
ius naturae and ius gentium played in the creation of
International Law. That branch of jurisprudence has
a twofold origin. It is due partly to customs which
grew up among maritime nations in the course of trade,
together with the usages and understandings which
formed themselves in the diplomatic intercourse of
States, partly to the doctrines thought out and delivered
by a succession of legal writers, of whom the most fa-
mous are Hugo Grotius, Albericus Gentilis, Leibnitz,
and Puffendorf. These thinkers, finding that large parts
of the field of international relations were not covered
by pre-existing custom, or that the existing customs
were often discrepant, were obliged to seek for some
general and permanent basis whereon to build up a sys-
tem of positive rules. This basis could not be looked for
in the laws of any State or States, because no such laws
could have force beyond the limits of those States, and
that which was needed was something which all States
were to observe. Neither could it be expressly deduced
from the Imperial Roman law, because the Romano-
Germanic Empire had become a mere shadow of its
former self, and the old Roman law, being the law of
a State (though a World-State), did not contain all the
necessary materials, not to add that anything impe-
rial was in the earlier part of the seventeenth century
regarded with suspicion by Protestants. Accordingly,
Grotius and his successors recurred to the Law of Na-
ture as being, according to the theory of the ancient
Roman jurists, a law grounded in reason and valid for
all mankind. They used it copiously, and some of them
called their writings ' Treatises on the Law of Nature

1 See on this subject Sir C. P. Ilbert's Government of India, chap. vi. The ex-
pression ' equity and good conscience ' in this connexion is as old as the Charter to
the E. India Company of 1683 ; ibid. chap. i. p. 21.



THE LAW OF NATURE 603

and of Nations,' using the old phrase ius gentium 1 in
what began to be taken as a new sense 2 . It was indeed
their wish to represent this Law of Nature as being
essentially a Law for the Nations, i.e. a law governing
the intercourse of nations. There had in fact been al-
ways a close connexion between the two conceptions.
For although the Roman jurists of imperial times had
employed the term ' Law of the Nations ' to denote, not
the law applicable between nations, but a part of the law
which was applied within the Roman dominions, still
they had held their ins gentium to have been not only
created by the customs of the nations of the world, but
therewith also binding on nations generally, and to be
indeed (save in some special points) a concrete embodi-
ment of the law which Natural Reason gives to all man-
kind. Thus the name ' Law of Nature and Nations ' be-
came well settled; and it is only in our own days that
the more precisely descriptive (if not quite satisfactory)

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

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



604 THE LAW OF NATURE

term ' International Law ' has, in superseding the older
name, acquired a general acceptance.

Thirdly, the expression Law of Nature has, within
comparatively recent times, obtained in Germany,
France, and Italy, the meaning of the Philosophy of
Law, that is to say, the metaphysical basis of legal con-
ceptions and of the most general legal doctrines. Some
observations will be found elsewhere in this volume 1
upon this Naturrecht or Droit Naturel, to which much
labour and thought have been devoted by Continental
writers, though very little by those of England or of
the United States. Whatever value the works of these
writers may have for metaphysics or ethics, they shed
comparatively little light upon law in its proper sense.
The study of Law in general seems nowadays likely to
be practically useful chiefly on its concrete side, as what
the Romans call a ius gentium, that is to say, as a collec-
tion and examination, a criticism and appraisement of
the rules adopted by civilized nations on topics with
which the legislation of all or most of such nations has
to deal. In other words, Comparative Jurisprudence
promises more fruit than abstract speculation on the
foundations of law.

IX. CONCLUSION.

Except from the lips of the Continental theorists just
referred to, we now seldom hear the term Law of Na-
ture. It seems to have vanished from the sphere of poli-
tics as well as from positive law. A phrase which was,
in the eighteenth century, a potent source of inspiration
to some and a tocsin of alarm to others, is not now in-
voked by either of the two schools of thought which
condemn, or seek to overthrow, existing institutions.
The Social Democrats do not appeal to Nature, perhaps
because they have realized that there never was a state
of society in which all property was held in common by

i See Essay XII.



THE LAW OF NATURE 605

large organized communities, and perhaps also because
they feel that so complex a system as they desire could
not well bo described as natural. Anarchists do not
appeal to the Law of Nature, because their quarrel is
with law altogether, and those among them who are
educated enough to desire to find a philosophical basis
for their doctrines are also educated enough to feel and
honest enough to admit that history, which knows to-day
far more about primitive man than she did a century ago,
would afford no such basis in any state of nature she
could possibly set before us.

Nevertheless the notion sometimes appears, and pro-
perly appears, in unexpected places. The British Order
in Council for Southern Rhodesia, of October 20, 1898,
directs the Courts of that territory to be ' guided in
civil cases between natives (i.e. Kafirs) by native law,
so far as that law is not repugnant to natural justice or
morality, or to any Order made by Her Majesty in
Council.'

Whether this time-honoured conception has or will
hereafter have any practical value for the modern world
is a further question, but one for conjecture rather than
discussion. We have seen what good work it did for
the ancient world in breaking down race prejudices,
and in particular for the Roman jurists in giving them
a philosophical ideal towards which they could work
in expanding and refining the law of the Empire. Nor
should we forget that in later times it has sometimes
stimulated resistance to oppression, and has corrected
the tendency, always present among lawyers and in a
ruling class, to defer unduly to tradition and to defend
institutions which have become incompatible with rea-
son, and hurtful to the common interest. This kind of
work may not seem to be needed from the old idea in
our own times. There is not much risk, either in Europe
or in North America, that tradition will check reform,
or that institutions will be respected and maintained
merely because they exist. But our planet may expect,



606 THE LAW OF NATURE

even according to the most pessimistic physicists, to
last for millions of years. Who can say that an idea
so ancient, in itself simple, yet capable of taking many
aspects, an idea which has had so varied a history and
so wide a range of influence, may not have a career re-
served for it in the long future which still lies before the
human race ?



XII

THE METHODS OF LEGAL
SCIENCE

WHOEVER, having heard the Roman law praised as
a philosophical system, enters upon the study of it, and
peruses either the Corpus luris Civilis or the writings
of modern German civilians, will presently find himself
asking, Where is the legal philosophy of the Romans
to be found? By which of them is the subject treated
in the abstract? Where are those general views on
the nature and essence of law with which a philosophical
treatment of it ought to begin? And where is that
theory of the historical evolution and development of
law which represents another method of treating juris-
prudence in a scientific spirit?

There is scarcely anything answering to the student's
expectations, either in the original Roman texts, or in
those modern books wherein the scattered rules and
maxims of the ancient jurists have been rearranged in



Online LibraryJames Bryce BryceStudies in history and jurisprudence → online text (page 52 of 80)