THE DEVELOPMENT OF THE THEORY OF NATURAL LAW CHAPTER I ANTIQUITY AND THE MIDDLE AGES BEFORE taking up the history of Natural Law it may be well to show how Natural Law differs from Positive Law on the one hand and from Moral Law on the other. The Moral Law deals with such actions as tend to promote the interests of society or else to become detrimental to its welfare. Actions are morally right or wrong with reference to the individuals composing society, according as they are good or bad for society as a whole. Positive Law includes the enactments of a particular government, enjoining certain actions upon the citizens and prohibiting others. Laws of Nature follow from the nature of things and are not dependent upon any particular form of society! or government. They are universal rules of action, discovered by natural reason. They form the ideal according to which men should fashion their actions. Of these three classes of laws one is set down by society and forms the Right; the second is prescribed by the government and forms the Law; the third is discovered by reason as Good. While in any particu lar instance all three may coincide, there is the possibility of a conflict.1 The ancient Greeks were fond of speculating about the origin and meaning of Law. They first of all peoples developed the conception of Natural Law. The germs of the conception of Natural Law are contained in the teaching of Heraclitus, whose influence reached its height about 460 B.C. The central thought of his system is the view that all things are in a state of incessant flow. Yet in this world of constant change there prevails an immutable and reasonable law to which all things are subject. This divine law or common reason illumines also the mind of man. All human wisdom is but an imitation of Nature and the Divinity.2 This divine law should guide not only the individual, but also the State. Human laws are but the efflux of the divine laws. Heraclitus is the first philosopher who believes in the Logos or rational world-soul-the eternal, all-comprehensive order of things. This conception of the Logos has dominated all subsequent philosophy down to the present. Its bearing upon the theory of Natural Law is evident. Higher and more authoritative than the positive laws of the State are the precepts of Universal Reason; the laws which are right, not because they are commanded, but because they are founded in the nature of things. 3 4 The views of Heraclitus were attacked by Archelaus and by the Cyrenaican school, who held that right and 1 Pollock, Life of Spinoza, pp. 325–27; Bryce, Studies in History and Jurisprudence, II. p. 120 sq. 2 Sextus Empiricus, Adv. Math., VII. 131, 133. 3 Clem. Alex., Strom., IV. 478b; Stobæus, Serm., III. 84; Diog. Laert., IX. 2. * Kuno Fischer, Gesch. d. neueren Philos., Einleitung, 35-38. wrong do not exist by nature, but are derived from human regulation and convention and are therefore variable.1 The Sophists, with whom a new epoch begins in Greek philosophy, return to the view of Heraclitus. While the early Greek philosophers did not question. the validity of traditional morality as embodied in the positive laws of the State, the Sophists applied the critical spirit to accepted ethical and religious views. They discriminated between Natural and Positive Law. They taught that positive laws could not be obligatory because they varied so frequently. Positive laws are the arbitrary commands of those in power, framed by rulers for their own advantage. Only such laws can be considered natural or divine as are everywhere observed." But though the Sophists recognized the idea of Natural Law it was not with the purpose of exalting Natural Right. They emphasized rather the subjectivity and relativity of truth. Their object was primarily to prove that existing laws and institutions were conventional and variable. Socrates, Plato, and Aristotle are not unfamiliar with the conception of Natural Right, though they make little use of it. Socrates distinguishes between written laws which are founded upon custom and unwritten laws which are observed everywhere, being given to the human race by the gods and not framed by the hand of man.3 Plato's doctrine of ideas, which are supposed to be the essence of things, is closely related 1 Diog. Laert., II. 6. Ibid., II. 93. 2 * Xenophon, Memorabilia, IV. 4, 14; 4, 19; Plato, Republic, I. 338 C.; Zeller, Die Philos. d. Griechen, 3. ed. I. 921–23; Ritchie, Natural Rights, 21–27. 3 Xenophon, Memorabilia, IV. 4, 19; I. 4, 8, 9, 17. |