Читать книгу The Ideal Element in Law - Roscoe 1870-1964 Pound - Страница 10

TWO

Natural Law

Law as a body of authoritative grounds of or guides to decision and administrative action under a legal order, as has been said in the first lecture, is made up of three elements: A precept element, a body of authoritative norms, i.e., models or patterns of decision in adjusting relations and ordering conduct, a technique element, an authoritative technique of developing, interpreting and applying the precepts, and an ideal element, a body of received and traditionally authoritative or taught ideals with respect to which the precepts are developed, interpreted, and applied.

In a developed body of law the first and the third elements, the precept element and the ideal element are of chief importance. Likewise the ideal element has a special relation to one of the two forms of legal precept. Legal precepts, as to their form, may be, on the one hand, enacted or imperative, or, on the other hand, traditional or habitual. The first is the modern element in a body of legal precepts today and, so far as the form of the law is concerned, is tending to become predominant. The second is the older or historical element upon which juristic development of the law proceeds by analogy. In the process of time consciously made and promulgated laws, legislation, becomes absorbed in the traditional material of the legal system. The enacted rule becomes a traditional principle. Thus in Roman law in its maturity the leges of the republic and the senatus consulta of the early empire have long ceased to be referred to according to their texts. “They were recognized only in the form in which they had been embodied in the writings of the jurisconsults, and were regarded as part of the ius or jurisprudential law rather than of the leges or statute law.”¹ Also English statutes prior to colonization and to some extent prior to the Declaration of Independence are part of American common law in the form in which they were construed at the Revolution.² The older English statutes are part of English common law in the way in which they were worked into it by Coke.³ There is a gradual transformation of the imperative into the traditional element of the legal system. On the other hand, as the traditional element is developed by judicial experience and juristic science and its principles are worked out into detailed rules, these rules are in time given imperative form by legislation, so that there is a gradual transformation of the traditional into the imperative. Examples may be seen in the English Bills of Exchange Act and Sale of Goods Act and the American Negotiable Instruments Law, Uniform Sales Act, and like statutes promoted by the Conference of Commissioners on Uniform State Laws.⁴

At first the traditional element rests upon the usage and practice of tribunals or the usage and customary modes of advising litigants on the part of those upon whom tribunals rely for guidance.⁵ Later it comes to rest upon juristic science and the habitual modes of thought of a learned profession. Thus the basis of its authority comes to be reason and conformity to ideals of right.⁶ On the other hand, the imperative element rests immediately upon enactment—upon the expressed will of the sovereign. The basis of its authority is the power of the state.⁷ In consequence of these two elements in a developed legal system and of the different bases upon which their authority is rested, two distinct ideas of law in the second of the three senses in which lawyers use the term, are to be found throughout the history of juristic science.

Corresponding to these ideas and corresponding to the two elements in the body of authoritative legal precepts, two distinct words, originally expressing two distinct ideas, are to be found in most languages spoken by peoples among whom law in the lawyer’s sense has had any great development. One set of words, τὸ δίκαιον, ius, Recht, droit, diritto, derecho, has particular reference to the idea of right (what is right) and justice. The leading notion of this set of words is ethical. Hence these words have three meanings. First they mean right—that which accords with our ethical ideas. Second they mean a right, a reasonable expectation of the individual under the circumstances of life in a civilized society—a right, moral or legal, that is, a capacity which the moral sense of the community or the power of the state confers in order to bring about right. Third they come to mean law, that is, a system of principles or body of precepts designed to enforce rights and bring about right. In other words, each of this set of words means primarily right and refers to an idea of right and justice, but comes to be used also to mean law in general. It is appropriate to and is on the whole the prevailing word in periods of legal history in which law is formative or is expanding and developing through juridical exposition or some other non-imperative agency. The other set of words νóμος, lex, Gesetz, loi, legge, ley, refers primarily to that which is enacted or set authoritatively, but tends to mean law as a whole. It is appropriate to periods of enacted law and to periods of legal history in which the growing point of law is in legislation.

As now one and now the other of the elements of a developed legal system has prevailed for the time being, now one and now the other name has come to be used for the whole. The classical period of Roman law was marked by juristic rather than by legislative activity, and the classical period of the modern Roman law was similarly characterized. Hence the preponderance of ius and its equivalents in the languages of Continental Europe. On the other hand, in England, where a strong central authority took the administration of justice in hand under the Normans and through the king’s courts and the king’s writs created a vigorous system which attained fixity before juristic development had gone far enough to exert an influence, law, a word of the second type,⁸ became the general term, and right,⁹ never acquired more than an ethical signification.

I have spoken of the traditional element in a legal system as rested upon usage. Thus it is a product of experience. At Rome it grew out of the experience of jurisconsults in answering questions as to actual controversies litigated in the forum. In Anglo-American law it has grown out of decision of cases in the courts and the endeavour to find in recorded judicial experience the principles of deciding new questions arising in concrete experience in concrete controversies. The imperative element, on the contrary, is immediately the work of a lawmaker or lawmaking body. The lawmaker may be advised or guided by a philosopher. But he is likely to think of himself as invested with a power to command. Thus we have law as ascertainment and formulation of just precepts on the basis of experience and law as command of what the lawmaker holds to be just precepts. For judge, jurist, and lawmaker seek to establish just precepts, and each is governed by some ideal.

From the Greek philosophers through the greater part of the history of juristic thought the ideal, both for judge and jurist and for legislator has been provided, in various forms by the theory of natural law, a theory of a body of ideal precepts of universal validity for all peoples, for all times, and for all places, derived from ideas of what an ideal man would do and would not do, would claim and would concede as the claims of others, and arrived at wholly or at least in large part by pure reason.

Civilization, the development of human powers to continually greater completeness, the maximum of human control over external or physical nature and over internal or human nature of which men are for the time being capable, seems to me the starting point for the social sciences. So much, I submit, we can learn from the Neo-Hegelians even if we do not arrive at it nor justify it after the manner of Hegel. It is the control over internal nature which has enabled man to inherit the earth and to maintain and increase that inheritance. The social sciences have to do with this achieved mastery over internal or human nature. They study and teach what it is, how it has come about, and how it is and may be maintained, furthered, and transmitted. Immediately civilization is maintained by social control, by the pressure brought to bear upon each man by his fellow men, the major agencies of which are morals, religion, and law. In the beginnings of law these are not differentiated. Even in so advanced a civilization as the Greek city-state one word is used to mean religious rites, ethical custom, the traditional course of adjusting human relations, the legislative regulations of the city to promote the general security, and all these looked on as a whole. All the agencies of social control and the means of exercising them are included in the one term which we translate as ‘law.’¹⁰ The beginnings of philosophical jurisprudence are in Greek philosophical thinking upon social control.

Greek definitions of law vary greatly. Some are imperative,¹¹ some are in terms of agreement, one might say social contract, which would include custom along with legislation,¹² some speak of discovery of the natural, universal ethical precept,¹³ and some of universal rules not only to govern human conduct but governing all things, and so the phenomena of physical nature as well.¹⁴ Demosthenes, not a philosopher or jurist, but an orator, i.e., advocate, argued to what may be likened to a jury that they should enforce the law, not run away with it, as both Greek dicasts and Anglo-American jurors will, gave the term almost every meaning that has ever been attributed to it. Law, he said, was something “which men ought to obey for many reasons, and chiefly because every law is both a discovery and a gift of God, and a teaching of wise men and a setting right of wrongs, intended and not intended, but also a common agreement of the state, according to which every one in the state ought to live.”¹⁵

But the permanent Greek contribution to juristic thought about law was made by Aristotle. Reflecting on the adjustment of relations and ordering of conduct in the Greek city-state he distinguished two types of precepts in a discussion which became fundamental. He said “Of political justice part is natural, part legal—natural that which everywhere has the same force and does not exist by people’s thinking this or that, legal, that which is originally indifferent, but when it has been laid down is not indifferent, e.g., that a prisoner’s ransom shall be a mina, or that a goat and not two sheep shall be sacrificed, and again all the laws that are passed for particular cases, e.g., that sacrifice shall be made in honor of Brasidas¹⁶ and the provisions of decrees.”¹⁷

Here Aristotle points out that of the precepts according to which social control was exercised by the politically organized society of a Greek city-state part had the same form everywhere, i.e., in all civilized societies, while part was established by some ruling authority, moral or legal. The text speaks of a natural element, which has the same force everywhere and does not depend on what people think here and there, and an element established by custom of this or that people or community by the local lawmaking authority. The natural is contrasted with the legal or conventional; the universal which had its basis in nature, with the legal or conventional which depended on how men habitually acted in their relations with each other and on how they voted in the lawmaking assemblies or decreed as rulers or as magistrates. This idea of a universal natural law had a strong hold in Greek thought as illustrated in the oft-quoted words which Sophocles puts in the mouth of Antigone: “The unwritten steadfast precepts of the gods.”¹⁸ The precept here enjoined upon kinsmen burial of their dead. It was to the Greeks a universal religious precept. The Stoics said that “law was by nature and not by imposition.”¹⁹

As to how such precepts were found, the doctrine was not so clear. They might be legal-ethical precepts given to men by the gods, or found by reason, or general religious-ethical or legal-ethical customs, put as ideal universals. Aristotle in another work contrasts the proper law of a particular city-state with the law common to the Greek city-states which is said to be in accord with nature.²⁰ It seems from this text that he thought of ‘common law’ (κοινóς) as ‘natural law’ (νóμóς καταΦύσιν). This suggests a like tendency of Roman jurists to identify ius naturale and ius gentium.

Democritus had said that “rules of law (νóμιμα) are made by men; atoms and void (i.e., the unoccupied space in which the atoms exist) exist by nature.”²¹ What, then, did the Greek philosophers mean by ‘nature’? Certainly it was not what it meant to the biological evolutionary thinking of the nineteenth century. To the latter the ‘natural’ apple would be the wild crab apple, from which the apple of the orchard has been developed by cultivation. To the Greek very likely it would have been the golden apple of the Hesperides. In Latin Φύσις (literally growth) is translated as natura. Lucretius translated the περίΦύεος of Epicurus as de rerum natura. How things grew, or perhaps how they came into existence, could be expressed by how they were born. Applied to things ‘nature’ seems to be the ideal of the thing in its highest perfection. Applied to laws and institutions it appears to have meant the law or institution in its most perfect form.

A distinction which Aristotle drew in the passage quoted from the Nicomachean Ethics came down into modern law as a distinction between mala in se and mala prohibita. As Blackstone put it, the former are actions which are naturally and intrinsically wrong while the latter are actions which are in themselves indifferent but become wrong “according as the municipal legislator sees proper for promoting the welfare of the society and more effectually carrying on the purposes of civil life.”²² What this came to is that the older infringements of the social interest in the general security were recognized in the formative era of American criminal law as mala in se. But newer methods of infringement, becoming antisocial under the conditions of today, in which all manner of mechanical means of endangering life and limb are invented and in operation, have to be the subject of legislation and are said to be mala prohibita.²³ The distinction in this form has not been satisfactory in its results.

“Law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and of the need of change.” Thus I began my lectures on interpretations of legal history a generation ago.²⁴ Aristotle might have said that the universal precepts of the natural or general (κοινóς) part of law, being immutable, maintained stability, while the part which rested on opinion for the time being and took form in legislation responded to the need of change. Here an analogy was made use of which has played a great part in juristic thought—the analogy of three regular and predictable phenomena of physical nature: the return of the seasons, the succession of the phases of the moon, day and night. As Socrates is reported in Plato’s Minos to have put it, fire burns and water flows in Greece, in Persia, and at Carthage. The analogy of the physical order of the universe to the moral order and to the legal order has always appealed strongly. Indeed as the psalmist reflected on it and thought of the order of the universe as reflected in the moral law, as it stands in the Psalm de profundis in the Vulgate, he exclaimed, “Because of Thy law have I abided Thee, O Lord.” Because of the stable character of the phenomena of external nature and of the moral order he had faith in the Eternal that makes for righteousness.

Differentiated social control in the stage of the strict law led to distinction of the enacted or imperative from the traditional element in the positive law. A resulting exclusive preoccupation of jurists with positive law led analytical jurists to develop a distinction suggested by Aristotle. Austin distinguished what he called ‘necessary’ principles, notions, or distinctions, which were inevitable constituents of any system of law, since no “system of law as evolved in a refined community” could be imagined coherently “without conceiving them as constituent parts of it.” On the other hand, he saw other principles, notions, and distinctions which were not necessary in that “an expanded system of law could be imagined without conceiving them as constituent parts of it.” He considered that these “rest upon grounds of utility which extend through all communities” and, “as they are obvious in all refined communities. . . occur very generally in matured systems of law.”²⁵ Austin’s necessary constituents of a matured legal system are deduced from his definition of law as the aggregate of rules established by political superiors, that is, “by persons exercising superior and subordinate government in independent nations or independent political societies.”²⁶ Both the necessary and the general principles, notions, and distinctions may in form be either traditional or legislative. But the distinction is made as to positive law. The necessary principles are logically necessary as involved in the very idea of a system of positive law. The general but not necessary principles, as Austin saw them, were established on general grounds of utility as it made itself felt among different peoples. Both would be included in Aristotle’s κοινòν δìκαιον.

It may be that an idea that the method of dichotomy is the exclusive method of classification, an idea no longer held,²⁷ is the explanation. At any rate, except as Aristotle suggests, without expressly setting them forth separately, three categories, namely, natural, general, and local, more or less, however, identifying the general type with the universal, but setting it between the natural as resting on customs of all civilized peoples, and the local resting on local usage and local legislation, philosophical jurists from the Greeks to the present have generally distinguished two types, natural and positive. In the last century Austin distinguished necessary from general precepts and institutions. Historical jurists distinguished traditional from imperative precepts and institutions.

These distinctions, philosophical, analytical, or historical, belong to later modes of juristic thinking. But the distinction made by Aristotle in the Nicomachean Ethics has had a long and fruitful as well as eventful history in the science of law and is the subject of lively debate today. Aristotle’s idea of a law common to the Greek city-states appears in the Roman law books as an idea of a ius gentium. We first find this term in Cicero. But he implies clearly that it was older than his time, telling that it was distinguished from ius ciuile, the strict law of the Roman city-state, by the maiores, the lawyers of the past.²⁸ In another place he speaks of it as a body of legal precepts assumed to exist everywhere.²⁹ It is true in a number of places he assumes that the ius gentium is universal because it is natural; because it has its basis in natural reason.³⁰ In one place he speaks of it as a matter of natural law.³¹ Thus like Aristotle he was not assured as between a threefold strict law, law of peoples, and natural law, or a twofold positive law and natural law in which the positive law had a universal element and natural law that element as something dictated by nature. Pomponius, in the second half of the second century, uses the term to mean legal institutions known among all peoples.³² In the Veronese codex of the Institute of Gaius, the Roman Blackstone,³³ there is a chapter heading (in a later hand) de iure ciuili et naturali, but the first section of Book I speaks only of the ius gentium. The first and part of the second sentence of the section have disappeared in the only manuscript. But they are quoted by Justinian and the section no doubt read thus: “Every people that is governed by statutes and customs observes partly its own peculiar law and partly the common law of all men; but what natural reason establishes among all men is equally followed by all peoples and is called ius gentium, as the law which all peoples make use of.”³⁴ He often seems to identify ius gentium with naturalis ratio. But it is not so clear that he identifies ius gentium with ius naturale. Naturalis ratio is put as what establishes ius gentium among all men.³⁵ But the later jurists of the classical period often speak of the ius gentium as a branch of the positive Roman law to which they refer different doctrines and institutions.³⁶

Although the extent to which a general body of precepts derived from contact with Greek traders, merchants, and bankers, and affected by reading Greek philosophers, existed as a recognized part of the Roman law of the end of the republic, may have been exaggerated in the last century, the extreme skepticism which would label Gaius’s statement contrasting the ius ciuile with the ius gentium and his promise to tell us to which of the two the several legal institutions he will expound belong, ‘pure fantasy,’³⁷ seems equally exaggerated. Such a combination of comparative jurisprudence and rational speculation is not an isolated phenomenon in legal history. An example may be seen in the development of Anglo-American commercial law out of the contact of the English common-law courts with foreign traders and bankers and reading by judges and lawyers of the Continental texts on commercial law.

At any rate, the idea of a ius gentium, a rationally derived common law of the civilized world, became a fruitful idea in the later medieval and seventeenth-century development of the received Roman law.

In its distinctive sense in the later Roman law books the ius gentium was a part of the positive law. On the other hand, the ius naturale was a speculative body of principles serving theoretically as the basis of lawmaking, juristic doctrine, and criticism, regarded as potentially applicable to all men, in all ages, among all peoples, derived from reason and worked out philosophically. The proof of the ius gentium was in its acceptance and application as positive law among civilized peoples. The proof of ius naturale was in reason applied to the nature of things.

Roman jurists of the period of the strict law were little, if at all, affected by Greek philosophical ideas of natural law. What Cicero has to say about ius naturae³⁸ is said from the standpoint of an orator and of a philosopher on the basis of Greek theories rather than of Roman law. In the classical period we hear much about natural law. But ‘the nature of things’ was thought of with reference to Roman legal institutions and legal conceptions, e.g., the nature of property and ownership and the nature of legal transactions, such as contract.³⁹ Roman natural law seems a natural law drawn from idealized positive law, like what I have called ‘positive natural law’ as it was developed in American law in the nineteenth century.⁴⁰ In the later empire Greek philosophical ideas affected the Greek teachers of law in the postclassical law schools and were applied to the classical texts.⁴¹ Yet the texts had repeatedly made the distinction that slavery exists by virtue of the ius gentium whereas slavery is contrary to ius naturale.⁴² Likewise they contrasted natural law with positive law in case of agnation and cognation.⁴³

In Cicero we see the idea, which was to become strong in the Middle Ages and in the modern world, that ius naturale is the basis of all law and may not be set aside by the law of the state.⁴⁴ The same idea appears frequently in the later law books.⁴⁵ There was an ideal to which the law was to be shaped. But the law was not automatically abrogated by an appeal to natural law. Buckland puts the matter well: “The name ius naturale expresses a tendency in the trend of legal thought, a ferment which was operating all over the law.”⁴⁶ It was not, however, a part of the positive law, as was the ius gentium. A pact might be binding by natural law and yet not create necessarily a naturalis obligatio in the positive law.⁴⁷

The history of the modern science of law begins with the revival of the study of Roman law in the Italian universities of the twelfth century. From the twelfth to the seventeenth century there were two parallel lines of juristic development, one legal and the other philosophical. In the legal line of development the text of the Corpus Iuris was taken to be authoritatively binding. It could only be interpreted. But the texts spoke of reason, and in philosophy authority was held a ground of reason and church doctrine was declaratory of reason. As it was put by Erigena, the teachings of the fathers of the church, which rest on their authority, were discovered by them with the aid of reason.⁴⁸ Anselm sought to prove the teachings of the Scriptures and of the fathers through reason so as to convince even the unbeliever.⁴⁹ A revival of natural law came with study of the Institutes and Digest and was furthered by acceptance of Aristotle as authority in philosophy. Natural law was given a purely theological basis. But philosophy was turned to in order to reinforce theology and later was used as the foundation of a science of law which gradually cut loose from theology. Thus Lord Acton was moved to say that not the devil but St. Thomas Aquinas was the first Whig.

Thomas Aquinas (1225–1274) divided the old ius naturale into two: (1) lex aeterna, the eternal law, the “reason of the divine wisdom governing the whole universe,” and (2) lex naturalis, natural law, the law of human nature, proceeding ultimately from God but immediately from reason and governing the actions of men only. Positive law was a mere recognition of the lex naturalis which was above all human authority.⁵⁰

It will be noted that Thomas Aquinas writes of lex naturae, not of ius naturale, or ius naturae. The law teaching of the medieval universities thought of law as legislation of the Emperor Justinian. It was not traditional in origin or in form. It was legislation, “proceeding from him who has the care of the community and promulgated.”⁵¹ The law imposed on Christendom by Justinian was analogous to the eternal law which the Creator had laid down for the universe. The lex naturae was the body of command imposed on mankind by the ultimate lawmaker, in part revealed and for the rest discoverable through reason.

It could be assumed that the legislation of the Christian emperor was declaratory of reason. But it was positive law, and appeal to the conscience against details of the positive law could be made in the name of natural law. The teaching of the Roman books as to the immutable precepts of natural law, beyond the reach of the lawmaker, was reinforced by theology. A precept contrary to natural law had no legal validity.⁵² But interpretation of and commentary on the text of the Corpus Iuris was enough for a general law for Continental Europe for three centuries before effective use could be made of the proposition. In England it came to be used to reinforce an idea of the reciprocal duties of lord and man when the king from the ultimate landlord was transformed into a governor ruling, as Sir Edward Coke told James I, under God and the law,⁵³ and was used to uphold the authority of the church against encroachments by Parliament in Acts “impertinent to be observed,”⁵⁴ from which in the right line of juristic descent we come to a fundamental doctrine of American law.⁵⁵

The taught law of the medieval universities in Continental Europe was in a stage of strict law. As was said above, the Corpus Iuris was a body of legislation to be interpreted and applied. But there was no competent lawmaking authority in the polity of the time which could add to it or alter it. While the method of the academic expositors of Roman law was the scholastic method of formal logic applied to authoritative texts, like the Roman jurists of the republic, they were little influenced by philosophy. Hence the juristic function of natural law in the Middle Ages was limited. In legal history, when the balance of stability and change is overweighted on the side of stability, positive natural law is found organizing the body of stable precepts in their interpretation and application. When it is overweighted on the side of change we find natural natural law a directing agency of growth.

But theological natural law could operate indirectly through the canon law. What a good Christian would do and would not do gave an ideal that in one situation played a significant role. There were differences on moral grounds between the civilians and the canonists on the confines between law and morals.⁵⁶ The civilians felt bound to adhere to the Roman doctrine that a bare pact was not legally enforceable and to argue that this was in accord with reason,⁵⁷ while the canonists regarded a promise as binding on the conscience and so to be given legal effect on grounds of religion, natural law, and the practice of civilized peoples.⁵⁸ Ultimately the canonist idea prevailed in Continental Europe. In the eighteenth century, Pothier, in the era of the law-of-nature school of jurists, explained that the Roman categories of enforceable pacts were very far from being in accord with nature and reason.⁵⁹

We have seen that Greek philosophy gave Roman legal science two significant ideas: natural law or the law of nature, a universally valid body of ideal legal precepts, grounded in reason, and a body of legal precepts lying between natural law and the positive law of the particular state, on the one side more or less identical with natural law and on the other side received or recognized as positive law—a body of precepts common in varying degrees to the positive law of civilized peoples.

In England where from the thirteenth century the law was the law of the king’s courts and was taught by practicing lawyers in societies of lawyers and law students, lawyers did not trouble themselves about philosophy. Until the latter part of the sixteenth century or even till the seventeenth century English law was in the stage of strict law. In theory the courts applied the common custom of England. There was no such general body of custom common to all England—certainly not on many matters on which the courts had to pass. What the courts administered was a custom of judicial decision, not a custom of popular action. But it was the belief that judicial decision was ascertaining and declaring the established custom of the land that made it possible for the custom of decision to establish itself as law.

On the Continent, where the law that prevailed was a law of the universities, the academic law teachers were in immediate contact with theology and many of them were doctors of the canon law as well as of the civil law, jurisprudence was thought of as applied theology. The ideal element in law was supplied by a theological natural law. This mode of thought had some influence in the development of equity as part of the Anglo-American common law system. In Doctor and Student,⁶⁰ a foundation book in the history of English equity, a philosophical justification of the equity administered in the Court of Chancery was put in the principle of the canon law that the circumstances of human life vary so infinitely that general rules cannot be made to cover all of them. This was a characteristic idea of the canon law. Discretion guided by conscience was held necessary to justice and equity was to be governed by conscience. The idea of equity as correction of that wherein rules of law by reason of their generality are deficient goes back to Aristotle⁶¹ but got a theological color in the canon law.⁶² Conduct conforming to equity and good conscience and decision according to the Chancellor’s conscience guided by principles became ideals of Anglo-American equity.

At the Reformation the two parallel lines of development of a science of law, the practical and the philosophical, converged. The authoritative basis of practical exposition of law had failed. The doctrine of continuity of the empire and consequent binding force of the Corpus Iuris was given up. The law was emancipated from the text of Justinian.⁶³ The authoritative basis of philosophical speculation had likewise given way. The method of the scholastic philosophers had been superseded. The unchallengeable authority of Aristotle and of the fathers of the church no longer afforded a basis for infallible deduction. The Protestant jurist-theologians of the north of Europe did not hesitate to declare that there was a sufficient basis for natural law apart from the Scriptures.⁶⁴ Grotius even went so far as to say that he could conceive of natural law if there were no God.⁶⁵ In the seventeenth and eighteenth centuries the science of law and the authority of legal precepts were rested solely upon reason. Lip service was long done to theology by naming revelation along with reason as the foundation of what was essentially a rationalist natural law.⁶⁶

For two centuries, in the era of what is called the law-of-nature school,⁶⁷ jurists believed that a complete and perfect system of legal precepts could be built upon principles of natural law discoverable by reason and derived from the ideal of the abstract man. Thus the seventeenth and eighteenth centuries are in many respects comparable to the classical era of Roman law. The fields of jurisprudence and ethics were taken to be the same. Jurists sought to make law coincident with morals. It was sought to make legal precepts conform to what each particular writer thought on ethical grounds they should be. An era of creative lawmaking resulted, the influence of which is still felt in law and in the science of law. Reason provided systematic organization of the body of legal precepts in place of the order of the titles in the Digest, an arrangement which had been taken from the praetor’s edict since the most used treatises of the classical era were commentaries on the edict. Hence from the sixteenth century the great law books on the Continent are treatises on the law as a whole, not commentaries on the Digest, and in England, instead of the commentary style of Coke’s Commentary on Littleton and Coke’s Second Institute,⁶⁸ and the alphabetical arrangement of the abridgements,⁶⁹ there came to be systematic expositions of the law as a whole even if they sometimes keep the name of commentaries.⁷⁰

Five notable juristic achievements stand to the credit of the law-of-nature school: The founding and development of international law, the eighteenth-century codifications on the Continent, Lord Mansfield’s rationalizing and modernizing of much of English law, the building of an American common law in the fore part of the nineteenth century from the English law of property and English legal procedure of the seventeenth century under the influence of natural law theories expounded by Blackstone and Kent, and the development of constitutional law in America on the basis of Coke’s Second Institute and Blackstone’s exposition of the common-law rights of Englishmen, taking the common-law rights of Englishmen to be the natural rights of man, under the influence of Continental treatises on natural law.

By general consent international law, as it has been known and accepted since the seventeenth century, begins with the great work of Grotius.⁷¹ But no less by general consent that work marks the beginning of the law-of-nature school of jurists which held the ground in jurisprudence for two centuries and was a strong competitor for half a century more.⁷² The analogy of the moral duties of men in their relations with one another was made to point out the moral duties of states in their relations with other states, and an idealized form of the precepts of the matured Roman law governing the relations and conduct of individuals was taken to show what reason prescribed as the basis of positive law.

Working out of elaborate detailed systems of natural law and a confident faith in the possibility of formulating natural law in a complete body of positive legal precepts, in a time when Continental states with well-developed legal systems seemed to have exhausted the possibilities of juristic development through the traditional element and to require a new basis for a new juristic development, together with need for one law in countries whose several political subdivisions had divergent local laws, led to a strong and general movement for codification in the eighteenth century. An Austrian Civil Code was projected in 1713. A draft was published in 1767 and a partial new draft in 1787. The code was put in force in 1811. Frederick the Great held that his legal advisers could draw up a perfect code which would require no judicial developing or interpretation and would need only to be applied. A draft was published in 1749 and a code was put in force in 1780–94. But the outstanding work of this era of codification was the French Civil Code of 1804, commonly known as the Code Napoléon. A French Civil Code was projected under Louis XIV in 1667–70, and the foundation was laid in a series of royal ordinances codifying particular subjects and by the writings of Pothier.⁷³ At the Revolution a code was demanded as a means of unification and after much delay on the part of the commission, the draft was promulgated in 1804 through the intervention of Napoleon.⁷⁴ This code still in force, though with many amendments, was copied extensively in Europe and Latin America and set the fashion until a new model was set by the German Civil Code published in 1896 and in effect in 1900.

William Murray, Earl of Mansfield (1705–1793), Chief Justice of the King’s Bench, 1756–88, an outstanding figure in the judicial history of England, learned in Roman and Continental as well as in English law, looked at the common law from the standpoint of the law-of-nature jurisprudence of his time and did much to rationalize and liberalize the law of his time. He put the law merchant in its place in the common-law system, restating it by making intelligent use of the Continental treatises, and infused equitable principles into more than one part of the general law, notably quasi contract.⁷⁵

In America natural-law thinking held the field undisputed in the three generations after independence. Blackstone was the law student’s first book in the law office and in most law schools until the end of the nineteenth century. Select chapters from Grotius and Pufendorf were in law school curricula till 1850. Grotius, Pufendorf, Rutherforth, Burlamaqui, and Vattel were read by law students at least to the time of the American Civil War. There can be no doubt that the believers in eighteenth-century natural law did great things in the formative era of American law because that theory gave them faith that great things could be done. Application of reason to the details of the received common law made the work of the legislative reform movement (1776–1875) enduring. In the formative era American lawyers formulated authoritatively much which jurists had reasoned out in the treatises on the law of nature in the seventeenth and eighteenth centuries. Even more it led to independent creative lawmaking such as had not proceeded from lawmakers after the era of the Civil War until the Workmen’s Compensation Acts.⁷⁶

But it is significant that each of these achievements had in it the seeds of its own undoing.

It has become increasingly manifest that a chief obstacle to an effective legal regime of international justice is lack of an international law adapted to the world it is to govern. In the seventeenth century Grotius wrote in an era of absolute personal sovereigns. The monarch of the seventeenth century, the Spanish king after Charles V, the French king of the old regime, the Stuart king in England, the Hapsburg ruler in Austria, was analogous to the masterful head of a Roman household. The relations of Philip and Louis, and James and Ferdinand with each other were enough like those of the Roman paterfamilias to his neighbor to make the precepts worked out by Roman jurists for the latter when idealized prove applicable to the former. So long as the political organization of society and political ideas remained much that they had been, the law of nations worked out by Grotius and developed by his successors served its purpose well. But with changed political ideas throughout the world it has become increasingly inadequate to its tasks. Its fundamental idea is out of line with the democratic organization of societies of today. It has, therefore, conspicuously failed in the present century. If a regime of legal adjustment of relations and ordering of conduct of self-governing peoples is to achieve its task competently in the world of today it must proceed on a different theoretical basis.⁷⁷ Natural law, thought of as eternal and immutable, is not equal to such a change of base.

Nor could the eighteenth century codes achieve the completeness of statement or permanence of content expected of them. They were chiefly successful in unifying the law where there had been an inconvenient diversity of local law. They have had to be amended and supplemented and a mass of doctrinal and judicial interpretation and application has had to grow up around them and new codes have had to be drawn up and more are urged upon wholly new lines and theories.

Lord Mansfield’s attempt to settle all parts of English common law on rational principles, although it achieved much, especially in commercial law, on the whole failed.⁷⁸ Pure reason and the example of the modernized Roman law of the Continent did not suffice to enable him to make the common-law courts into courts of equity, to do away with the technical medieval rules of the law of real property, nor to put the common law as to simple contracts on a rational and moral basis. He was more than a century ahead of his time. What he sought to do and much more has been done since under the auspices of a different philosophy.

Likewise the natural-law theory of American constitutional law had ill results from which administration of justice in America has been suffering for two generations. It led to a doctrine of constitutional provisions as declaratory of natural law and so to an ideal of the common law as in its main lines and characteristic doctrines an embodiment of universal precepts running back of all constitutions. Thus certain common-law doctrines and traditionally received ideals of the profession were made into a superconstitution by which the social legislation of the last decade of the nineteenth century and of the first third of the present century was to be judged.⁷⁹

At the end of the eighteenth century Kant undermined the method of the law-of-nature school of the two preceding centuries.⁸⁰ For a time the place held by theology in the Middle Ages and by reason in the seventeenth and eighteenth centuries was taken by history and philosophical jurisprudence was carried on by a metaphysical school which sought to work out an ideal critique of legal institutions, legal doctrines and legal precepts deduced from a metaphysically given fundamental idea of right or some simple fundamental formula of justice.⁸¹ Where the law-of-nature school thought of an ideal body of detailed legal precepts, the metaphysical jurists thought rather of an ideal element in the law and a critique of legal precepts on the basis of that element. Conceiving of the ideal element as the significant part of the law they rejected the law-of-nature theory of law made consciously to the pattern of rationally discovered universally valid precepts and held with the historical jurists that law was found not made. It was found by experience, said the historical jurists,⁸² and in that experience, said the Hegelian later metaphysical jurists, an ideal of right or an idea of freedom was realizing itself.⁸³ In England and the United States it has been customary to speak lightly of this school and to assume that their speculations were wholly in the air.⁸⁴ It is true they did not directly and immediately affect the actual course of judicial decision and juristic writing. But Kant formulated the idea of justice which was universally accepted in the nineteenth century and obstinately held on in American constitutional law in the first third of the present century. Through their influence upon the historical school of jurists, which was dominant in the latter part of the nineteenth century, they fixed the lines of the ethical interpretation of legal history and gave content to the idea of freedom which historical jurists postulated as unfolding in legal development. Maine’s famous generalization that the history of law is the record of a progress from status to contract⁸⁵ simply puts in concrete form the cardinal idea of the metaphysical school.

At the end of the nineteenth century the then dominant historical school of jurists all but displaced philosophical jurisprudence. In the present century a revived philosophy of law took form in a social-philosophical school, social utilitarians, Neo-Kantians, and Neo-Hegelians,⁸⁶ more or less merging later in a neo-idealist type.⁸⁷ In the fore part of the nineteenth century lines of cleavage involved in divergent aspects of eighteenth-century philosophical jurisprudence and different phases of reaction from the law-of-nature school, brought about a separation of jurists into three well-defined schools: historical, metaphysical, and analytical.⁸⁸ The nineteenth century was the century of history as the thirteenth was the century of theology, at any rate in jurisprudence, and the seventeenth and eighteenth centuries were the centuries of reason. The historical jurists carried forward the doctrine of those eighteenth-century jurists who held that legislation and precepts of positive law were merely declaratory. The law-of-nature jurists said they were declaratory of reason. The historical jurists said they were declaratory of social experience in the administration of justice in which an idea of right or an idea of freedom was unfolding. The metaphysical school sought to demonstrate an unchallengeable basis to replace pure reason and thus provide an assured critique of law from the outside. The analytical school carried forward another trend in eighteenth-century theory which had conceived of an authoritative declaration of natural law by the sovereign. Thus all three of the nineteenth-century schools have the doctrine of the law-of-nature school in their pedigree. Bentham taught something very like a natural law derived from his theory of utility. Austin⁸⁹ and Holland⁹⁰ gave us what was very like a ius gentium, a system of law reached by reason applied to comparative law. The metaphysical school, the philosophical school of the last century, definitely disappeared by the beginning of the twentieth century. The historical school and the analytical school still have adherents, but both have been largely superseded by new types of juristic thought.

In social philosophical jurisprudence the most influential group has been the Neo-Kantians. Their founder and leader, Rudolf Stammler (1856–1938) sought to work out a universally valid method of judging as to the justice obtained by application of legal precepts in the time and place. He spoke of a natural law with a changing content. As contrasted with the eighteenth-century conception of universally valid ideal precepts, and Kant’s essay at a universal critique, Stammler sought a universally valid method of developing a relative critique whereby justice might be achieved in the time and place. His enduring work has been in formulation of the social ideal of the time and place, and his theory of the application of legal precepts where the last century thought simply of their nature. Nineteenth-century philosophical jurisprudence asked whether a particular legal precept was just. Stammler asked whether and how far justice may be attained by means of the precept. Where nineteenth-century jurists thought that if rules were abstractly just the results of the application of the rules in particular cases need not be looked into, he taught the present century to seek just results by means of legal precepts conforming to and administered in the light of social ideals.⁹¹

Josef Kohler (1849–1919) was the leader of the Neo-Hegelians. He recognized that law, while it must be stable, must nevertheless constantly change. He thought of law as a product of the civilization of a people in the past and of attempts to adjust the results of that past civilization to the civilization of the present. The adjustment must be made with reference to recognition of a continually changing civilization. The traditional legal materials must be shaped so as to further rather than retard developing culture. His most important contribution to jurisprudence is his theory of the jural postulates of the civilization of the time and place. He considers it a task of the jurist to find and formulate the principles of right assumed in or expressed by a given civilization. These postulates may serve as a critique of legal precepts. But even more received ideals may be tried with reference to them and thus clear outline may be given to the ideal of the legal order which is so large an element in the development and application of legal precepts.⁹²

More recently there has been a tendency to merge the formerly distinct types of social-philosophical jurisprudence in what may be called a neo-idealism, which seeks to understand, organize, and criticize the ideal element in law and, in particular, to transcend nineteenth-century individualism and nineteenth-century orthodox socialism by a conception which shall neither measure community values and civilization values in terms of personality values nor personality values and civilization values in terms of community values, but shall conceive of civilization as the end toward which both a maximum of free individual self-assertion and an efficient social organization are but means. Here belongs Gustav Radbruch (1878–1950),⁹³ whom I should put first among contemporary philosophers of law. He points out that justice, the ideal relation among men, morals, the highest development of individual character, and security, each demands the others and yet each if carried to its full logical development negates the others. This must be recognized and the three must be kept in mind in a view of the whole. Of three theories of the binding force of law, (1) that law has binding force only when commanded by a force imposing itself on all other forces, (2) that its obligatory force is based on consent, and (3) that it may be deduced directly from justice and owes its binding force thereto, he holds that no one of them by itself can give a satisfactory answer. He points out series of legal precepts dictated preponderantly by each of these principles. But there is only a preponderant dictation. There is no complete dictation by any one of them.

In France the revival of philosophy at the beginning of the present century led to what has been called a revival of natural law—not, however, a revival of the law-of-nature school. In this revival there were two outstanding leaders: François Gény (1861–1944)⁹⁴ and Léon Duguit (1859–1928);⁹⁵ the one writing from the standpoint of a neo-scholastic, the other from the standpoint of a positivist-sociological, natural law.

Gény in his philosophical work (Science et technique) subjects social life, that is, the life of the individual man as a moral entity in society, as a moral phenomenon, to the scrutiny of reason in order to discover principles which may be used to establish norms, i.e., patterns or models, for lawmaking, law finding, and the application of law.⁹⁶ One might say that in Stammler’s phrase they are to give us the social ideal or in Kohler’s the jural postulates of civilization except that Stammler sought the social ideals of the epoch and Kohler the postulates of the civilization of the time and place. As a Catholic neo-scholastic jurist Gény had faith he could do more. Scholasticism was a method of formal logical development of authoritative texts. It postulated twofold truth: Revealed truth, that is, revealed in the Scriptures as interpreted in the writings of the fathers, and discovered truth, that is, truth discovered by reason, scrutinizing the universe. In the subjects of the social sciences this means scrutinizing human life. But this life is a life in society. Hence Gény insists on society as a prime factor to be scrutinized in setting up any theory of values. Thomas Aquinas sought the ‘ought’ which reason addresses to a reasonable creature. He went on the basis of the individual man as a moral entity. Gény goes on social life as a moral phenomenon—something given us as a fundamental truth which may be developed logically into its consequences. On this revived scholastic basis he calls for recognition of the element in a body of law which consists in traditional views as to the end of law and traditional pictures of the legal and social order and seeks to give us a firmer grasp of them. In his third volume Gény treats of the technique of positive law. He holds that free scientific research yields starting points for juristic and judicial construction. These starting points (donnés) are fundamental, but a technique of construction is required to build on them.⁹⁷ The finding of a donné is a matter of intelligence. The technique is a matter of will. It is something done by choice, “guided only by the predetermined ends of the legal order.”⁹⁸ This recognition of the process of finding starting points for legal reasoning by choice from among competing starting points by a technique in the light of received ideals is a contribution of the first importance. It brings out the most effective role of the ideal element of the law in the administration of justice. It may be added that the present day tendency of juristic thought in France seems to be to move over from the dominant positivism of the last of the nineteenth century and first decades of the present century to or toward neo-scholasticism.⁹⁹

Duguit’s system is called a system of natural law because he conceives of everything in law as deriving its validity from and to be judged by a fundamental rule or principle of right-and-law. Philosophically he was a thoroughgoing positivist. Following Comte, he sought to arrive at his fundamental principle by observation and to verify it by further observation. But Gény justly observes that his règle de droit is supposed, as Duguit in many places vehemently insists, to be derived by observation of a verified fact of social interdependence, whereas in truth it comes in by an unconscious metaphysics and is given a content of the social interdependence from which it purports to be derived.¹⁰⁰

As Duguit sees it, observation of the phenomena shows that there are no such things as rights, much less natural rights, or sovereign or subjects.¹⁰¹ Also observation shows there is no such thing as the distinction between public law and private law. All such ideas must be given up. We must start anew from the observed and verified fact of social interdependence through similarity of needs and diversity of functions, or, as it has become, in the industrial society of today, similarity of interest and division of labor. From this comes the rule or principle of right-and-law binding all members of a society to act so as to further this social interdependence and not to do anything that impairs it.¹⁰² As one would expect in a system of natural law, a legislatively enacted precept, although it may conform to the constitution, is not binding unless it tends to further (rather than impair or hinder) social interdependence. Hence he suggests that there should be a tribunal composed of representatives of all social classes to “judge of the legality of the law,” i.e., its natural legality, not whether it conforms to the constitution but whether it conforms to the natural-law requirement of promoting social interdependence. Observation of American experience of judical determination whether social legislation conformed to a requirement of reasonableness, or was contrary to “common right and reason” does not give one much faith in the suggestion.

Duguit’s ideal picture of the social and legal order is an idealization of a modern industrial city and the country dependent upon it in which everything turns upon efficient production in the greatest possible quantity.

It should be added that there has been a steady growth of natural-law thinking in one form or another in many countries since 1920.¹⁰³

I have suggested elsewhere that we should distinguish what I have called natural natural law from what would then be called positive natural law.¹⁰⁴ According to this distinction natural natural law is ideal law simply as ideal. It is a body of ideal precepts derived independent of the actual positive law by some method which is regarded as guaranteeing universal moral validity and applicability. Positive natural law, which is what has usually gone by the name of natural law, is an idealized version of the positive law in which the jurist was brought up, in which, postulating that it is declaratory of natural law, and that it derives its force from the ideal precepts it declares, he sets out the positively established precepts, or some of them in universal form. These idealized precepts of a positive law in which the jurist was trained are now made to appear as universal, unchallengeable and unchangeable. Thus there are two sides to natural law as we see the idea at work in legal history. For example, the lawyers, judges and teachers in the formative era of American law found their creating and organizing idea in the theory of natural law. This theory of an ideal universal law, to which an appeal lay from the received precepts of the inherited English law, was at work in legislation, in judicial decision, and in doctrinal writing and guided the creative process of applying reason to experience which has been the life of the law. But at the end of the formative era natural law became a stabilizing, not a creative, theory. It led to an idea of the constitution as declaratory of an ideal of the Anglo-American common law as in its main lines and characteristic doctrines an embodiment of universal, immutable precepts “running back of all constitutions.”¹⁰⁵ Thus certain common-law doctrines and traditionally received ideals of the profession were made a superconstitution by which the social legislation of the end of the nineteenth century and fore part of the present century was to be judged.¹⁰⁶

Natural natural law has been rested wholly on revelation, or on revelation supplemented by reason, or wholly upon reason. But the number of problems confronting the lawyer which can be solved from the Scripture is too small for practical purposes. The attempt to administer justice in the simple pious society of colonial New England from “the word of God” proved vain. Likewise the number which pure reason, either supplementing revelation or by itself, can solve satisfactorily is very small. Indeed, Kant at the end of the eighteenth century effectively demonstrated the limitations of pure reason. For the greater part we have to find by experience workable adjustments of relations and orderings of conduct which will satisfy the most of the expectations incident to life in civilized society with the least friction and waste. From antiquity one of the foundations of natural law was found in the universal and unchallengeable obligation to keep a promise.¹⁰⁷ But humanitarian ideas of the full individual social and economic life and psychological juristic ideas of frustration have been creating all over the world what has been called “the right not to pay debts.”¹⁰⁸ The attempt to solve all legal liabilities for loss and injury by a moral proposition that liability was necessarily and solely a corollary of fault, put as a fundamental principle in the Code Napoléon, has failed everywhere.¹⁰⁹ Often the problem is one of fixing the incidence of a loss among a number of innocent victims. Where no one has been at fault the humanitarian thought of today is not satisfied to leave the burden of a loss upon the luckless victim on whom it fell. Even when an individual has brought an injury upon himself in whole or in part by culpable failure to exercise reasonable care and diligence the humanitarian morals of the time shrink from making him bear the whole burden. What it comes to is that we make the best practical adjustment we can by experience developed by reason and reason tested by experience in order to solve practical problems in a complex social and economic order which do not admit of satisfying solution by simple moral maxims of universal validity. But we must have rules of decision if social control is to be maintained. Men will not long submit to arbitrary subjection of their wills to the wills of others.

In urging this I am not for a moment preaching against conformity of law and of the application of laws to an ideal of justice. Indeed, it is such conformity, so far as we can bring it about, that makes social control through the force of politically organized society tolerable. Does not this mean that natural law has its real function as a critique of the ideal element in the positive law rather than as a test of the validity of positive laws or an authoritative guide to all lawmaking and all application of laws? When we do more we ask too much of natural law and impair its effectiveness for what it can do.