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TABLE OF CONTENTS

I. Introduction

II. Greece

III. Rome

IV. Natural Law In The Middle Age Of Scholasticism

V. Feudalism - The Pact Of Subjection Theory - The Magna Charta And The Bulla Aurea

VI. Reason Of The State Theory

VII. The Reformation And The New Theory Of Natural Rights

VIII. Grotius

IX. Followers Of Grotius

X. Locke

XI. Montesquieu

XII. Rousseau

XIII. The French Revolution

XIV. Evolution And Significance Of The Natural Law Doctrine
In America

XV. Revival Of The Natural Law Theory - Conclusions

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# I. INTRODUCTION

## General Summary Of The Problem And Definition Of The Approach.

It is rather difficult exactly to define what "law of nature" or "natural law" is, because this definition has had a variety of meanings which showed many changes during the long centuries of the evolution of legal thought. Nevertheless, the core of the problem can be summarized in 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.

Since this idea first appeared in early Greece, it has not ceased to influence legal thought in spite of the fact that there were and are important differences between the several natural law theories as to origin, field of application, and significance - limiting power - with regard to differing positive laws.

As to the origin of superior, fundamental or immutable laws, their source has been found in nature in a physical sense and later in the primitive natural state of man. Originally they also were conceived as of divine origin, coming from the Deity or from the divine law. Then they were considered as based upon reason, and brought very close to morals, ethical standards being given supremacy over positive law.

As to the field of application, the divergences are many-fold. Should the law of nature affect only internal public law or also international legal relations or should it be respected

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even in the realm of private law? What is its impact upon the
idea, ends and functions of the state? Are its principles only
laws in the objective sense or do they establish also rights in
the subjective sense of fundamental rights of the individual?
Are they applicable not only to the citizens, but also to the
rights of states which are members of a confederation? Are they
to be respected only in making and changing (amending) positive
law or also in the interpretation and practical application of
laws? Are they to be followed by the legislative, executive
/administrative) and judiciary powers of government? Do they
constitute a "norma agendi" even for individuals when exercising
their subjective rights, public and private?

As to the efficiency of natural law principles, what is
their limiting power and especially what are the sanctions which
come into operation against an arbitrary government (right of
resistance or even rebellion of the citizens, or right of sepa-
ration for the member states in a confederation?) or otherwise
when the application of positive laws and rights is not conformed
to the principles of natural law.

In order to find answers to these questions, we will take
a glance at the historical development of natural law theories
with special attention to the great influence they exercised in
the United States upon the idea of the state, the Constitution
and American legal thought in general.

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## II. GREECE

Greek philosophers of the pre-Socratic period have already made a distinction between man-made laws and divine laws emanating from the gods. This manner of thinking found its way into the works of the poets and historians. Sophocles' heroine Antigone, who buried her brothers corpse against the King's order, declares: "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 times, 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 the classical Sophist, Hippias, by Plato in the Protagoras. Aristotle emphasized the supremacy of the law originating from nature and apprehended by a kind of divination (Rhetorics 1,13,2). This metaphysical idea of natural law as formulated by the great masters, Socrates, Plato and Aristotle, remained dominant against some sophistic philosophers who conceived an individualistic natural law based upon man's state of nature and were thus to a certain extent, the forerunners of the revolutionary natural law ideas of the 18th century.

The legal ideas of Greek philosophy have been shaped into a permanent form by Aristotle, the greatest systematic thinker of antiquity. Aristotle divided law into common, being in accordance with nature and in force everywhere, and statutory law which is

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particular to each separate communtiy, and consists of written
legal rules or unwritten but established legal usages. Statutory
law is amplified, modified and controlled by its complement, or
equity (epiekeia or aequitas). Ethics and law are not distinguish-
ed from each other, the purpose of both being to assure the public
good for the people living in society. The ethical aspect was
underlined through the concept of justice, defined by Aristotle
(Nicomachean Ethics) as distributive and commutative justice.
The first regards the individuals in their relationship to
society, deals with the distribution of goods and is based upon
the idea of proportion: what each individual receives has to be
proportional to his merits or contributions; his obligations
must be proportional to his means. The measuring rod is the
equality before the law (isotes). Commutative justice refers
to the relations between the individuals; it is guided by the
idea of suum cuique tribuere - to give everyone his due. Nature
was conceived as a universal order which dominated the moral world
as well as society.

The public authorities had to recognize and enforce the
absolute and immutable law of nature, they had to administer the
positive laws in justice and according to the Socratic philosophy,
an act which resulted in injustice had only the appearance of law,
but the citizen had to obey the state's laws as shown by the ex-
treme example of Socrates' death. Natural law was conceived in
an objective sense and Greek thought did not recognize subjective
fundamental rights of the individuals and no conception of the
state was based upon such rights. The first aim of justice is

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order, while freedom is aimed at only as far as it realizes order.
The individuals were absorbed by the City-State (polis) which
considered slavery (and even Aristotle and Plato condoned it) as
consistent with the natural and ideal order and foreigners were
looked upon as barbarians.

Plato and Aristotle acknowledged no goal of man that trans-
cends the ideal polis. They remained state-socialists. The natural
law served to justify the existing positive laws, not only to criti-
cize them. The positive law has and wishes to realize the natural
law which is the measure and the criterion of justice for the
former.

Aristotle's theological thinking considered law as the
correlative of the State, germ-cell of which is the family.
Social order as represented by the State, rests upon the basis
of law. Man is a zoon politikon, a social being. Without the
basis of legal and social cohesion, the State is unthinkable.

The fact that the polis and its divine worship were the
ultimate goals, explains Plato's and Aristotle's search for the
best form of State or government. Aristotle found the criterion
of the constitutional State in the principle of the separation of
powers within the State into legislation and government, admin-
istration and judiciary power. According to the power of their
constitutions, he distinguished three good forms of the State
(monarchy, aristocracy, and the good democracy) and three
degenerate forms (tyranny, oligarchy and the corrupt democracy,
the rules of the mob). He regards the monarchy or the aristocracy
as the ideal constitution, that is, the rule of the best man or
men; an ideal, however, which could hardly ever be acheived in

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the reality of life, so that in practice he came to the ideal form
of constitution and the democracy. He drew the attention to the
gradual degeneration of the several forms of State, to the
emergency of democracy from oligarchy and of tyranny from cor-
rupted democracy.

Aristotle's system of law, which was later expanded by the
ethical doctrines of the Stoa, the concept and divine origin of
natural law, its link to ethics and especially to justice, the
dualism between positive and immutable higher laws and the latter's
supremacy, represented ideas which were to exercise an enormous
influence upon the moral and legal thought of the Romans and the
Middle Ages.

STRATTHMORE PARCHMENT
100YRAG U.S.A.

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### III. ROME

The Romans excelled as founders of a strong state and later of a vast empire which was built up and held together by their outstanding qualities of organization, administration, military virtues, and by an unequalled legal system. These were the chief fields of activity for the genius of this people. They were doers rather than thinkers. In other cultural respects they borrowed from the Greeks, whose above-mentioned ideas about ethics and law were also largely absorbed by Roman jurists.

Originally Rome was a small agarian state and her positive law was applicable to citizens only (jus civile or jus Quiritium). The first channel through which principles of natural law began to infiltrate into this formalistic and rigid tribal law was the edicts of the praetors.

In cases in which the jus civile was inapplicable because one of the parties or both of them were foreigners, the praetor peregrinus gradually built a legal system based on reason and common sense. This was the *jus gentium*, which meant the principles generally accepted among mankind, i.e., generally recognized principles of right among those peoples with whom the Romans came most in contact. It was in this connection that the doctrine of jus naturale became associated with the growth of Roman law. The essence of the *jus gentium* was drawn from the common fund of all legislations and it was assimilated gradually to natural reason.

As to civil law, the *praetor urbanus* intervened, "adiuvandi,

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supplendi vel corrigendi juris civilis gratia", i.e., the deficiencies of civil law were supplemented; its defects, inconsistencies and rigors were corrected by the praetor urbanus.
He published each year an edict containing the principles that were to be applied in their decisions by the judges who were selected from an official list by the parties in legal disputes.
The praetor took these principles largely from the jus gentium and transformed the rigid civil law step by step by introducing rules of reason and equity with a keen sense for precedents so that the whole evolution is amazingly similar to the method in which/England the King's Chancellors transplanted equity into the Common law.

The second chief source of infiltration of natural law ideas was the activity of those prominent jurists whose responses became officially recognized as legally binding. (Responsa Prudentum). They were followers of the Stoic philosophers whose school was founded by Zeno in Greece at the end of the 4th century B.C., and flourished in Rome in the imperial age and had such great followers as Seneca and the great emperor Marcus Aurelius. The Stoics emphasized the ethical side of Aristotle's natural justice and considered it as a guiding principle immanent in the universe: this was reason and its expression was natural law. It is true that the expression "jus naturale" was used by the practical jurists in a very limited sense. According to Ulpian's definition in Justinian's Institutes: "Jus naturale est quod natura omnia animalia docuit". This would refer only to certain altruistic instincts that were implanted by nature in all living creatures, such as the union of male and female and the

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raising of children. But Cicero (106-43B.C.) whose not very
original but rather eloquent writings had the greatest influence
upon contemporaneous and medieval legal thought, conceived the
notion of jus naturale in a much broader sense. He had the
most affinity with the Stoics, tempering the harshness of their
doctrines with elements borrowed from Plato and Aristotle and
with the practical judgment of the Roman spirit softened by
Greek culture.

Cicero repeatedly affirms the existence of an innate
natural law implanted in everybody, vera lex, recta ratio,
naturae congruens, diffusa in omnis, constans, sempiterna
(De Rupublica 3,22,33). In every matter the consent of all
peoples is to be considered as the law of nature. Universal
consent is the law of nature (Tusc 1, 13, 30, I. 15,35). Not
only the fundamental principles of morality, but the existence of
God and the immortality of the soul are revealed to us by that
voice of nature which speaks through the general consent of man-
kind. This innate consciousness of what is right and true may
indeed be obscured and depraved by evil habits, but it is there
nevertheless, and it appears clearly in the opinions of the best
men and in the uncorrupted minds of the young, in whom as in a
mirror nature is seen. "Indicant pueri, in quibus ut in speculis
natura cernitur (DeFin. II 14,45: V. 22,61).

Under the influence of these ideas the doctrine of natural
law passed into Roman law, as shown by the following basic
definitions: Jus estars aequi et boni (Celsus: law is the art
of equity and of the good) - Juris praecepta sunt haec: Honeste
vivere, neminem laedere, suum cuique tribuere (Ulpian: the

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rules of law are the following: to live honestly, to hurt no one, to give everyone his due) - Justitia est constans et perpétua voluntas jus suum cuique tribuendi (Ulpian: Justice is the constant and permanent will to give everyone his due) - Jurisprudentia est divinarum atque humanarum rerum notitia, justi ac injusti scientia (Jurisprudence is the knowledge of divine and human things, the science of what is just and unjust.)

Posterity inherited Roman law in the codified form as it appears in Emperor Justinian's Code, the most important part of which was the Pandectae (Digesta), a collection of fragments taken from the greatest jurists' works. It became world's law in the Middle Ages, when the Church adopted it as the basis of Canon Law (Ecclesia vivit lege Romana) and later again when Western Europe accepted its principles which founded entrance into the Austrian and the French civil codes around the end of the 18th century. In Germany the "reception of Roman law" went so far that regarding private law even the text of the Pandectae was accepted and developed by elaborate scientific interpretation into the system called "modernus usus Pandectarum", which represented Germany's private law up to 1900 when it was replaced by the new German civil code.

As to the idea of the State, the narrow concept of the Greek polis has been abandoned. The Roman Empire was a world state and Roman citizenship was extended to all its inhabitants. It is regrettable, however, that regarding the form of government the Romans bequeathed the idea of state-omnipotence as after the golden period of the republic their concept of state became identical with with unlimited tyrannical rule of the emperors.

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IV. <u>NATURAL LAW IN THE AGE OF SCHOLASTICISM</u>¹

Christianity discovered human personality with an im-
mortal soul and an eternal transcendental goal, recognized God
a
as/personal law-giver whose intellect and will is the source
of law and introduced the idea of the Church as the institution
charged with the salvation of mankind.

These three new ideas had a decisive influence upon the
natural law theory.

The natural law idea appears already in the <u>New Testament</u>
in St. Paul's Epistle to the Romans (2:12-16): "The Gentiles
which have not the law (of Sinai), do by nature the things con-
tained in the law - which show the work of the law written in
their hearts, their conscience also bearing witness". <u>The Fathers</u>
<u>of the early Church</u> made use of the Stoic natural law. For <u>St.</u>
<u>Augustine</u> in the 5th century, Plato's and Aristotle's substantial
ideas became thoughts of God. The doctrine of natural law was
also transmitted through the study of Roman law as well as through
the emergence of canon law and was developed into an elaborate
system by Scholasticism.

The doctrine of natural law found its most perfect ex-

1 This chapter is chiefly based upon the works of Walter Farrel.
The natural law (moral) according to St. Thomas and Saurez, St.
Dominick's Press, Ditchling 1933, and Heinrich A. Rommen, The
Natural Law, B. Herder Book Co., St. Louis, 1948

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pression in the works of St. Thomas Aquinas (1222-74)², who adopted some essential ideas from Aristotle's theory so that the religious, moral and legal thought of the Middle Ages was based upon three pillars: The Bible, Roman Law, and largely Aristotlean philosophy.

St. Thomas' concept of law is incorporated in his system of theological metaphysics. The universe is governed by the _eternal law_, which is based upon God's will in accordance with his wisdom. Man is subject to _natural moral law_ emanating from reason. _Human law_ applies the principles of natural law in the particular circumstances of the different societies.

How can man learn what natural law is? Man has been created by God as a rational being with understanding and free will and so he can apprehend natural law by the help of reason and the idea of purpose. Reason teaches man that by nature his purpose, i.e., the final end of his life, is happiness through the realization of his perfection and this is the point where St. Thomas rejoins Aristotle. The personal ideal, however, can be realized only as far as the common ideal of all human beings itself is realized, and so the final end of human activity is the common good, which is the principle of natural law.

Law is therefore a commandment of _reason_ aiming at the _common good_.

The law pertains also to a law-giver, upon whose responsibility lies the care for the common good because for a group of people

2 After the heavy attack made inside Scholasticism against the Tomistic concept of natural law, the Occamists, who contended that law is not an act of reason, but merely an act of will, a second peak was reached by the late Scholastics such as the Itlaian Bellarmine and the great Spanish philosophers Vittoria, Suarez, Vásquez, and DeSoto

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order among the individuals who compose it and their direction
to the common end are essential.

Furthermore, since law is the rule of action for rational
and free beings, it has to be made known to them that they may
direct their actions in keeping with it. *Promulgation*, likewise,
belongs to the nature of law.

Accordingly, "law is a general rule of reason which is
directed to the common good, emanates from public authority, and
is duly promulgated."

The will, too, is included therein, but *law is primarily
reason*, because the activity of reason, the weighing of the
ends and means, the decision of men endowed with free will for or
against a proposed course of action, preceeds the will, the
commuting of the deliberation and the judgment into act.

Law must be reason, too, for the sake of *man's dignity*.
The human person is not a means for the ruler's use. Obedience
to be ethical must be reasonable obedience.

and
Obedience, obligation, / duty, is the principal content of
law, which is a norma agendi, the individual right (facultas
agendi) is only its consequence.

The positive law thus determines human conduct within the
frame of society. Law is linked to morals and puts into motion
distributive and commutative *justice*, a virtue which is analyzed
and defined by St. Thomas on the basis of Aristotle's concept.

Christian *charity* is to mitigate the hardships that may
arise from the application of a general rule in individual cases
which call for special consideration.

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The law has not merely a protective but also an educative function, an ethical aim: to make better, more virtuous those who are subject to it.

**The natural moral law, too, bears the character of law.** As the light of natural reason indicates, by way of judgment, the internal agreement or contradiction of factions with rational nature, it likewise indicates in the very same act that this corresponds also to the will of God, the Author of nature. But the obligation of the natural law does not depend for its efficacy on a knowledge of either God as legislator or of the divine will. It simply involves the obligation to apply the supreme moral principle: "Do good and avoid evil".

But what is the solution if discrepancies arise between the Church and the State, between natural law and human law?

The relations of the spiritual and temporal powers agitated all the Middle Ages as a problem leading to an even more essential question as to the perogatives of the public authority versus conscience, the State's impact upon the individual.

The ancient religions were religions of the state and so there could be no difference between the relidious morals, i.e., the will of the gods and the positive law, i.e., the will of the State. This point of view was modified by Christianism as it placed God above the kings and approached the soul of man directly.

It avoided, however, the antagonism between the state and the religion by separating their domains: "Render unto Caesar

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the things which are Caesar's and unto God the things that are God's" (Matthew 22, 21).

The church even acknowledged the legitimacy of the political power: "Let every soul be subject unto higher powers. For there is no power but of God; the powers that be, are ordained of God" (Romans 13, 1), but limited the authority of the State by stopping it at the threshold of the soul. "We ought to obey God rather than men". (Acts 5, 29).

According to St. Thomas, the human (positive) law was to be in perfect conformity with the natural law. Obedience to the public authority is a primordial obligation as the authority is a creation of God and has to serve the common good. A particular rule, however, that does not issue from the activity of reason, an arbitrary rule or decree at variance with the natural law "would savor of lawlessness rather than of law" - says St. Thomas. But also in such cases the subjects should preserve by obedience the great good of order which is preferable to the utter lack of order, to total disorder, whereas human laws violating the commandments of God must be disobeyed.

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V. **VFEUDALISM - THE THEORY OF THE PACT OF SUBJECTION - THE MAGANA CARTA (1215) AND THE BULLA AUREA (1222)**

In a accordance with the Church's and the Schoolmen's teach-
ings about the divine origin of kingdom, during the Middle Ages
political power was generally considered as founded upon the will
of God which was habitually conceived as the will of the Prince.
Nevertheless, the philosophy of this age also constructed a
contractual base of political power by admitting that the people
and the Prince had agreed upon a pact by which the people pledged
obedience to the Prince, who, in his turn, promised protection
and devotion to the common good.

This was the theory of the Pact of Subjection (pactum
subjectionis). It originated in feudalism which became the dom-
inating system of government and in the tradition of defining in
charters the mutual rights and obligations of the seniors, and the
vassals.¹

In the fuedal state private law had usurped the place of
public law. Public duty had become private obligation. All
sorts of services which men ordinarily owe to the public and
to one another were translated into a form of rent paid for the
use of land and defined and enforced by a private contract.

1 Later this concept came into real existence through the institution of the General States, i.e., the official representation of the different classes of the population (nobility, clergy, third class) who submitted to the Monarch their wishes and revendication (claims) e.g., the French chiers de doléances.

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The vassal promised by oath fealty and financial, administrative and before all military sevices to the Lord from whom he received ceremonial investiture, with the fief, which was usually land. Legally, the vassal was only a tenant but practically he became owner of the land.

The whole state was a network of such feudal contracts from the last small landholder, who sought protection from his lord, through superimposed layers of barons up to kings, who usually had no direct contacts with the ultimate vassals.

While on the continent feudal government ran its logical career; there were two countries, England and Hungary, where constitutional principles very similar to the later concept of the "social" pact have been developed some 450 years before Locke, Montesquieu and Rousseau published their ideas of fundamental rights and the right of resistance to arbitrary rule, ideas that ultimately resulted in the American and French Revolution.¹

Though the system of feudalism was introduced to England and Hungary from the same Frankish source and owed its full development to the same French race of soveriegn - to the House of Anjou,- the geographical situation, the historical antecedents and the characters of the two nations resulted in modifying and restricting the idea of feudal subordination in favor of popular freedom.

The insular formation of England and the high mountains surrounding the great central plain of Hungary made it possible for them to keep their national character and fashion their legal

1 Hantos: Op. Cit. and Paget: Op. Cit. page 401

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institutions rather independently to suit their proper needs and interests. On the continent the slow evolution of feudalism had its roots in Roman institutions (precarium and patrocinium) and German ideas (comitatus), which were rather unknown in England and Hungary. Accompanied by the inveterated and traditional love of freedom of both nations, the above mentioned brought about that their old judicial and amministrative organizations were retained to a much greater extent than on the continent and only the military organization of feudalism was introduced.

Unlike in other countries, the coinage of money and the right of private war was never legally allowed to the nobles. They had only a limited judicial power as it was centralized in the King's tribunals. The private law was a judge-made case law based on precedents and custom. The royal authority was limited by the acknowledged rights of personal liberty and property of free men and by the self-government of the countries into which both kingdoms were divided. This is why the two peoples were equal in enlightened notions of personal freedom, of civil rights and of political privilege as early as the beginning of the 13th century when the fundamental rights and liberties of the ruling classes were fixed at about the same time in the Magna Charta of King John (1215) and in the Bulla Aurea of the Hungarian King Andrew II. (1222) Furthermore, in these two oldest written constitutions of medieval Europe, the barons of England and the nobles of Hungary, who drew up and imposed on their kings these memorable charters, inserted a last clause to secure the liberties

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by the sacred right of armed revolt, a primitive and seemingly
destructive weapon, but the only possible guarantee in those
times.

Article 61 of the Magna Charta provided that in the event
of the king infringing any article, any four of the twenty-five
barons appointed as a permanent commission of the Crown-Vassals,
shall apply to the king or to the chief judiciary for a remedy
and in the case of a refusal shall summon the "communa" (most
likely all the vassals) to enforce obedience.

"If we or any of our successors", says King Andrew II in
the last article of this Golden Bull," should at any time be
disposed to infringe upon any of these our orders, the bishops
as well as the other lords and the nobles of the realm, shall be
at liberty, jointly or singly, by virtue of this letter, to
resist and contradict us and our successors, for ever, without
incurring the penalty of infidelity."

Both clauses are contractual but in England the right to
the renunciation of allegiance to the sovereign was a privilege
of the aristocracy which was to act as a body, while in Hungary
it was the right of the higher and lower nobility and the indi-
vidual noble regarded himself as cometant to pronounce upon
the question as to whether the king had infringed the law or not.

In England the king proved to be more powerful so that the
right of rebellion was rescinded within a year and under Papal
influence in the first reissue the last articles of the Magna
Charta were definitely omitted. Not so in Hungary, where once
omitted the right of armed resistance was again restored by

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Louis the Great (1351) and became a part of the established law, so that each king had to reassure it by oath at the occasion of his coronation. Finally, it was given up together with the free election of the king ins 1687 by an act of gratitude towards the Hapsburgs who liberated the country from the Turkish domination and were recognized as a hereditary dynasty.

The key to the 31st clause of the Bulla Aurea is to be found in Hungary's history. In the very beginning of the Hungarian state, in the 9th century when the seven chiefs of the tribes swore allegiance to Arpad as their sovereign and to his descendants after him, they declared that if either he or any of his successors broke the terms of the treaty between them, anathematized subjacent in perpetuum. This condition of submission on the part of the Hungarians to a single ruler lived for centuries in the memories of the people and was in concise form brought to life by the last article of the Golden Bull.

As to England, similar memories of ancient freedoms may have been the basic psychological motives of the Magna Charta.

In this manner of thinking, which was so deeply rooted in both nations, whenever their freedoms and liberties were endangered by arbitrary rule they defended themselves with reverence to their ancient and untouchable rights as recognized and reassured by the two great charters, which in the course of centuries, became objects of nearly religious veneration.¹ They usually did not

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II Sometimes opinions are expressed which depreciate the value of these charters and think that the patriotic estimate of Englishmen and Hungarians has attached undue value to Magna Charta and Bulla Aurea. Yet, if we compare these documents with the corresponding documents of the 13th century in Avignon, Catalonia, Valencia, Poland, Bohemia or even the much-admired Magna Charta of Aragon (1287) we shall find that England and Hungary were far in advance of other nations. (Hantos OP. Cit, page 154.)

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argue with theories of natural rights and found even national
pride in asserting that their freedoms were the fruit of an
autonomous evolution. Nevertheless, their basic consideration
was not different from the thought from which the natural law
of the Enlightenment period later departed, i.e., an original
state of nature in which all men were free and equal.

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VI. REASON OF THE STATE THEORY

The feudal network of contractual relationships helped to hold together the medieval states, but the central power became atomized. At the end, and after the 13th century, feudalism in the proper sense gradually disappeared and the function of protection and local supervision was resumed by the general government. The kings made great efforts to establish strong governments with centralized powers.

The formation of modern states was accompanied by the emergence of doctrines which represented a reaction against natural law ideas as they liberated the political theory from the contractual environment and led it towards authoritarian principles.

In Italy, Machiavelli took just the opposite of St. Thomas' point of view. He did not submit the human order to a divine order. On the contrary, he assigned the people's happiness as general purpose to the activity of the Prince, who is not tied to any pre established moral. As a skeptic and realist, Machiavelli introduced the principles of the reason of the state that made his work (Il Principe) so famous.

In France, Bodin (La République) supported the monarchistic efforts of Francis I against the Grand Vassals. He launched the theory of sovereignty: the absolute and perpetual power of the state and does not subject the monarch but to the fundamental laws

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of the kingdom. These laws, however, do not grant rights to the
subjects as the king dominates the State's assemblies (Etats
Généraux). "Si veut le Roi, si veut la loi".¹

This absolutistic concept was even expanded under Louis XLV
who declared, "L'état, c'est moi". The great Bishop-orator
Bossuet cleverly adapted it to the doctrine of the Church. Ac-
cording to his work (La politique tirée de L'Écriture Sainte).
God Himself designates the Monarch and determines his duties
and to Him alone the king has to render account of his acts.
Provided that the sovereign does not give orders against God
("commande contre Dieu") the subjects have no other choice than
to submit themselves to the pious king who will lead them to
happiness.

L As to Hobbes and Spinoza, see Chapter VII

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# VII. REFORMATION AND THE NEW THEORY OF NATURAL RIGHTS

The dualism of the laws of conscience and the laws of the state - that Christianity created and Catholicism tried to harmonize by an ingeneous construction - revived with all its acuity at the moment of the reformation. The moral resistance of a Luther or of a John Knox against the injunctions of the political power clearly shows the antagonism to which it may lead.

By liberating the domain of religion from the impact of the state and by establishing a direct contact between God and the believer, without the intermediary of any ecclesiastical organization, the reformation vindicated a liberty which drove a wedge into the dominating ideas. As to the reformators themselves, they did not behave in their writings as political revolutionists; on the contrary, they recommended respect towards the established authorities. Nevertheless, through the freedom of conscience the reformation introduced into the society and thinking the germ of socio-philosophical individualism which was destined to grow and prepare the field for an evolution that was to change the concept of an objective conservative natural law into subjective rights of the individual, rights of a fundamental and unalenable character. The emerging new individualistic theory was fostered by the rationalistic method of thinking ("cogito ergo sum") introduced by René Descartes (1590-1650) who postulated the autonomy of human reason. The various new natural law systems had:

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(1) _a common point of departure_: the original state of nature in which all men were free and equal and possessed some inborn right of freedom, property, etc., as well as

(2) _a common aim:_ the political purpose of changing the existing conditions that cried out for reform (hence the revolutionary character of some of these theories), and

(3) _the common conviction_ that an ideal order can be achieved by the guidance of human reason in all fields of human activity.

On the other hand, there were differences between them as to:

(1) whether they constructed the doctrine of the original natural state of men with an optomistic view as did Grotius, Rousseau, Locke and Montesquieu, or from a pessimistic point of view like Hobbes,

(2) whether they conceived men's physchological motive force as selfishness (Hobbes), as sociableness (Puffendorf), or happiness (Thomasius) etc.,

(3) whether they sought to realize the reforms in a revolutionary (Rousseau) or conservative (Hobbes) or reformist (enlightened despotism) manner. It was thus that the epoch of individualism, rationalism and enlightenment (the 17th and 18th centuries) became the age of natural law in and individualistic sense of inborn natural rights.

The turning point in this evolution is connected with the name of Hugo Grotius (1583-1645).

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VIII. GROTIUS

Positive law appears to be conditioned by the existence of
authorities which make, interpret, apply and enforce the rules of
law. In the relations of nations among each other there are no
common legislative, judicial and law-enforcing authorities and so
there seems to be no room for positive law. Is this true, are
we really faced with a vacuum juris in international respect?
No, because the behavior of peoples towards each other is directed
by some fundamental principles of justice and moral that derive
from reason and are generally recognized by all civilized nations.

The attempts to give this or a similar answer to the above
question, go back to earlier authors and especially to the
Spanish Catholic philosophers Vittoria and Suarez, but it was the
great jurist of the Low-lands, Hugo Grotius, who explained and
made widely accepted the theory that it is the natural law that
governs international relations and so Grotius became recognized
as the father of the jus gentium.

Grotius published his great work, *De jure belli ac pacis*,
in 1625, in a period when Catholics and Protestants fought with
enormous cruelty the Thirty Year's war (1618-1648) in which
Christian unity of Europe and Germany were destroyed. The first
part of his book was devoted to the theory of natural law of which
he gave the following definition: "The law of nature is a dictate
of right reason which points out that an act, according as it is

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or is not in conformity with rational and social nature, has in it a quality of moral baseness or moral necessity; and that, in consequence, such an act is either forbidden or enjoined by the author of nature, God!"

This definition is based upon man's rational and social nature. Consequently, those rules of life which appear - when measured by reason - to be favorable in social life, are conformed to man's nature. This is why the goods of others have to be respected, promises must be kept, damages caused by another's fault have to be repaired, and crimes have to be punished. These principles are the armament of natural law, i.e., the rules universally found as necessary for social life and recognized as such by all civilized nations. They are so immutable that even God could not change them.

In the final result this idea of natural law is near to the motion of justice and distinguished from moral. By creating nature it was God whose will decided that such principles should exist in ourselves, but they appear through human nature and are not the results of a divine revelation.

Besides this natural law, there is also a positive law - called voluntary law, represented by human conventions which have to adapt the exigencies of natural law to the requirements of the reality.

By and by more and more principles of natural law are accepted and become parts of the positive law both in national and external respects and - as we see in the growing number of international agreements - increasing sectors of the

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jus gentium are transformed into positive international law.

What are the chief merits and the characteristics of Grotius's theory?

(1) By demonstrating that in the form of the jus gentium, natural law acts as a rule of conduct despite the absence of legislative, judicial, and law-enforcing authorities, he furnished a decisive proof as to the existence of natural law and refuted the criticism as if the assumption of higher law principles meant simply to confuse that what is with that which ought to be.

(2) This is one of the chief reasons why Grotius brought about a revival of natural law theory which was expanded by his followers.

(3) As to Grotius' jus gentium, it is limited to the "civilized" nations, a limitation that restricted international law practically to the Christian nations up to about the middle of the XIXth century. On the other hand, by putting forward the idea of the rule of law even in wartime, he revived the intellectual unity of the West as he substituted intellectual solidarity based upon reason for solidarity based upon a now divided faith.

(4) There are important analogies between the systems of St. Thomas and Grotius, but the latter marks the transition from the metaphysical to the rationalist natural view. Grotius has replaced the axis of law as he put human nature into the centre of his concept and separated the philosophy of law from theology. This germ was to grow slowly and to lead to far-reaching consequences.

(5) He maintained the idea of a law superior to the State

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against those, who like Machiavelli and Bodin, have destroyed
all the barriers limiting the power of the governments. In the
domain of internal law, however, Grotius is still much penetrated
by the authority of the Prince and opposes those who argue that
the sovereignty resides in the people.

It is interesting to compare Grotius' ideas with those
of his contemporary, the English philosopher, Thomas Hobbes.
Grotius emphasized the natural aspirations of man towards social
harmony. Hobbes represented man in the state of nature as
animated by unlimited selfishness: man's instincts towards his
fellow men are those of a wolf (homo homini lupus); hence, the
war of all against all (bellum ominum contra omnes). Men have,
however, a regulator of their conduct: reason. In this point
the two authors come together. Reason commands mutual concessions
as they need social peace for obtaining happiness. The peace
would not be achievable without the authority of a firm government:
hence the pact - a return to the pactum jubjection - by which the
people of a country submit themselves to a Prince and put all
their rights into his hands. It is the law of nature which prescribes that the pact has to be respected and justice maintained,
justice being fidelity to the given promise. Hobbe's moral is
thus a utilitarian one.

Departing from different points of view, Grotius and Hobbes
arrive at a somewhat analogous conclusion: the idea of a natural
law of moral character - necessity of an authoritative government
which has to care for it that natural law penetrates into the
positive laws. Nevertheless, there is a great difference as

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IX. THE FOLLOWERS OF GROTIUS

After Grotius' important works about natural law were published, they adopted the idea of man's permanent sociable nature which is enlightened by the right reason and results in universal rules of conduct that are indispensable to any society.

The title given by Samuel Pufendorf (1632-1694) to his principal book is significant: *The Law of Nature And Of Peoples or A General System of Moral, Jurisprudence and Politics*. The great Swiss professors Barbeyrac in Lausanne, Burlamaqui in Geneva, and Vattel in Neuchatel as well as the German philosopher Wolff have continued and developed Grotius's work. The notion of natural law became widely known and accepted. The "School of Natural Law" was dominating during the 17th and 18th centuries.

The first classical representatives of the school conceived natural law as an objective moral that implies a respectful submission to the political powers as these authors justify the established order and even slavery.

On the other hand, one can observe the progressive emergence of natural rights in the subjective sense, perrogatives received by man from nature at birth which have to be respected by the authorities: thus *individualism* appears and marks a new milestone in the evolution of natural law theories. Its origin goes back to the Reformation, but it was in England and France where the theory of the natural rights of man has been developed into a doctrine with far-reaching political results in

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X. LOCKE

It was reserved to England to formulate by John Locke's
pen the first philosophical theory of the rights of man. In
1688 when the English Whigs wished to replace James II, the legal
king, by William III, they had been forced to demolish the doc-
trine of divine right. Locke assumed the task and in his
treatise on Government (1690) replying to the Patriarcha of
Sir Robert Gilmer, he demonstrated how the state of nature
in which men originally lived was transformed not by a pact
between the people and the sovereign, but by a contract agreed
upon by the individuals and requiring the consentment of all.
This is the social pact, the Covenant. By this the people
do not transfer to the sovereign all their natural rights,
but only a part of them, that is necessary for the common good
which is the only purpose of society. Every subject remains,
therefore, in the possession of certain natural rights; the
political authority is limited by these individual rights
such as the principles of strict interpretation and equal
enforcement of laws, of justice, of no abusive taxation, etc.
If these rights are violated the social pact is broken. In
England there were historical reasons and bases for this
evolution and in America this idea appealed to the people as
it reached back to their origins, to the covenants of the
first Pilgrims.

1. They are explained in our Chapter V and in Charles G. Haines: *The Revival of Natural Law Concepts*. Harvard Univ. Press, 1930, pages 28-48

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XI. MONTESQUIEU

An evolution of ideas similar to that in England, took
place in France beginning at about the middle of the 18th
century. The most important representatives of this trend
of thinking were Montesquieu and Rousseau.

The leading principles of Montesquieu's Esprit des
Lois (1748) were the following: the basis of his theory is
natural law; he aims at integrating into one notion the laws
of the moral and the physical world; hence his famous defini-
tion: "The laws are the necessary connections deriving from
the nature of things." Justice has a priority over all con-
tingencies. "Dire qu'il n'y a rien de juste ou d'injuste
que ce qu'ordonnent ou défendent les lois, c'est dire qu'avant
qu'n eût tracé le cercle tous les rayons n'etaient pas egaux"
(lois, I, Chapter I.). A special chapter (III. in volume XXVI)
of his work is devoted to the civil laws that are contrary to
natural law.

His greatest contribution to the evolution of ideas is
his apology of liberty, the theory of the means of defense
against the arbitrary rule by governments. In this respect
he drew inspiration from English institutions which he greatly
admired. He was the author of the separation of powers-theory,
which was to be followed so rigidly by the Fathers of the
American constitution.