Law,' says Cicero, 'is the highest reason, implanted in CHAP. III. Nature, which commands those things which ought to be done and prohibits the reverse.' 'The highest law was born in all the ages before any law was written or State was formed. Law did not then begin to be when it was put into writing, but when it arose, that is to say at the same moment with the mind of God 2.'

It may be worth while to add a few instances from later writers of the terms in which the law of Nature has been spoken of.

S. Thomas Aquinas says: Participatio legis aeternae in rationali creatura lex naturalis dicitur 3.

:

Grotius Ius naturale est dictatum rectae rationis, indicans actui alicui, ex eius convenientia aut disconvenientia cum ipsa Natura rationali ac sociali, inesse moralem turpitudinem aut necessitatem moralem, ac consequenter ab auctore Naturae Deo talem actum aut vetari aut praecipi1.'

6

Hobbes: Reason suggesteth convenient Articles of Peace, upon which men may be drawn to agreement. These Articles are they which otherwise are called the Lawes of Nature 5.'

Jeremy Taylor: 'The law of nature is the universal law of the world, or the law of mankind, concerning common necessities, to which we are inclined by nature, invited by consent, prompted by reason, but is bound upon us only by the command of God ".'

Cumberland: Lex Naturae est propositio naturaliter cognita, actiones indicans effectrices communis boni".'

The term Law of Nature,' besides the sense in which we Special have just explained it, has been employed in a wider and also term.

in a more restricted sense.

1 De Legib. i. 6; cf. De Inv. ii. 52.

2 De Legib. ii. 4; cf. the distinction between 'summa lex' and 'lex scripta,' ib. cc. 6. 15; between 'lex Naturae' and 'civilis,' De Off. iii. 17; and between

uses of

CHAP. III. The wider is that of the well-known ius naturale' of The wider Ulpian, which he says prevails among animals as well as men,

sense.

The

narrower sense.

regulating the nurture of the young and the union of the sexes1. It is obvious that the courses of action mentioned by Ulpian are followed in pursuance, not of a precept addressed to a rational will, which alone is properly called a 'law,' but rather of a blind instinct, resembling the forces which sway the inanimate world2. Such an employment of the term is, in fact, fully as metaphorical as its use to express the order of the universe. A law for the nurture of offspring is no more intelligible than a law of gravitation.

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It is in pursuance of this law,' which is supposed to govern the relations of men before they have originated any of those institutions which mark their superiority to the merely animal creation, that all men are asserted to be equal. 'Iure enim naturali ab initio omnes homines liberi nascebantur'; which is equivalent to saying that before any laws were in existence, no differences between man and man were recognised by law. Ulpian's 'ius naturale' is therefore a merely metaphorcal phrase, leading to con sequences which, however magniloquently they may be expressed, turn out upon analysis to be dangerous truisms. All legal right and wrong had its origin after human society was put in motion and began to reflect and act. To talk of law and right as applied to mankind at a supposed period anterior to society beginning to think and act is a contradiction in terms 3.

An employment of the term 'natural law' in a sense as much narrower than that which we have given it as Ulpian's is wider, is its identification with the 'ius gentium.' The 'ius gentium,' in its origin a system of positive law enforced among the Romans and the races with whom they were

1 Iust. Inst. i. 2.

2 Hesiod, Op. et Dies, 276.

3 Yet writers are not wanting to assure us that the genesis of law preceded even the development of the family! Zocco-Rosa, Principii d'una Preistoria del Diritto, 1885, p. 36.

brought into commercial contact, was conceived of, doubtless CHAP. III. as early as the second century B. C.1, as a body of principles which are found in the laws of all nations, and which therefore point to a similarity in the needs and ideas of all peoples. Ius autem gentium omni humano generi commune est; nam usu exigente et humanis necessitatibus gentes humanae quaedam sibi constituerunt. Bella etenim orta sunt et captivitates secutae, et servitutes, quae sunt naturali iuri contrariae 2.' By the introduction of these precepts the narrow and strict law of Rome was gradually enriched and expanded. It was an afterthought to give them a higher authority and a philosophical significance by identifying them with the 'ius naturale'; as is done even by Cicero 3; and more explicitly by Gaius when he says: Quod vero naturalis ratio inter omnes homines constituit, id apud omnes populos peraeque custoditur, vocaturque ius gentium, quasi quo iure omnes gentes utuntur 4.'

Ulpian's extravagantly wide application of the term never seems to have gained currency. It was, on the other hand, long and generally used in the restricted sense of an equivalent for what the Romans meant by the 'ius gentium.'

Its suitable and convenient use in the sense in which it was employed by Aristotle was restored by such writers as Oldendorp, Gentili, and Grotius.

from the

A brief notice must suffice of the various practical con- Deductions clusions which have been drawn from the doctrine of 'ius doctrine. naturale.'

1. Acts prohibited by positive law, but not by the so-called

1 Cic. de Off. iii. 69. Cf. Voigt, Das Ius Naturale, passim, and Prof. Nettleship, Journal of Philology, xii. p. 169.

et

2 Iust. Inst. i. 2. § 2. Gentium ius . . . ab eo enim nominatum est. omnes gentes similiter eo sunt usae; quod enim honestum et iustum est omnium utilitati convenit.' Frag. Vet. I. Cti. Cf. Cic. de Off. iii. 17, Tusc. i. 13; Gai. Inst. iii. 93.

• Inst. i. I.

CHAP. III. natural law, are said to be 'mala prohibita,' not 'mala in se.' Thus a government may find it expedient to forbid certain acts, such as the planting of tobacco 1, which are not regarded as odious by the public sentiment.

2. Positive laws have been said to be invalid when they contradict the law of nature. So Hooker, paraphrasing S. Thomas: Human laws are measures in respect of men whose motions they must direct. Howbeit such measures they are as have also their higher rules to be measured by: which rules are two, the law of God, and the law of nature. So that laws must be made according to the general law of nature, and without contradiction to any positive law of scripture; otherwise they are ill made 2. Grotius: Humana iura multa constituere possunt praeter naturam, contra naturam nihil 3.' And Blackstone: This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding all over the globe in all countries and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately from their original 4.'

3. Natural law, or natural equity, has been often called in to justify a departure from the strict rules of positive law.

With the changing ideas of society cases of course often occurred when the law of the State was found to be in opposition to the views of equity entertained by the people or by leading minds among them. The opposition would be said in modern language to be between law and morality. But law and morality in early times were not

1 12 Ch. II. c. 34. Cf. the lenient view which has been taken by the Courts of evasions of the revenue laws, e. g. Holman v. Johnson, Cowp. 341: and of. Lord Coke's dictum in Bonham's Case, 8 Rep. 114 a.

2 Eccl. Pol. iii. c. 9.

3 De I. B. et P. ii. 3. 6.

* Comm. Introd. p. 43. Cf. Cic. de Legib. ii. 4; Suarez, de Lege et Deo, ii. 14; Raleigh, Works, iii; Coke, I. Inst. 11, 183, 197; Locke, Civ. Gov. II.

conceived of as distinct.

The contrast was therefore treated CHAP. IIL as existing between a higher and a lower kind of law, the written law which may easily be superseded, and the unwritten but immutable law which is in accordance with Nature.

And this way of talking continues to be practised to the present day. Long after the boundary between law and morality had been clearly perceived, functionaries who were in the habit of altering the law without having authority to legislate found it convenient to disguise the fact that they were appealing from law to morality, by asserting that they were merely administering the law of Nature instead of law positive.

4. In cases for which the law makes no provision the Courts are sometimes expressly authorised to decide in accordance with the principles of natural law. This is so, for instance, in the Austrian Civil Code 1, and the Commissioners for preparing a body of substantive law for India recommend that the judges should decide such cases in the manner they deem most consistent with the principles of justice, equity, and good conscience 2.'

5. The law of Nature is the foundation, or rather the scaffolding, upon which the modern science of International Law was built up by Gentili and Grotius.

enforced by deter

minate authority.

II. In contrast with the species of rules which we Rules have just been considering, are rules set by a determinate authority. Among such rules would no doubt be included rules Divine imposed, or thought to be imposed, upon mankind by a God or Gods. Direct revelations of the will of a supernatural power, or such indirect intimations of that will as each man may find in his own conscience, have alike been described as

1 'Nach den natürlichen Grundsätzen,' § 7.

2 First Report, p. 9; Second Report, p. 10.

laws.