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THE CLASSICS OF INTERNATIONAL LAW
EDITED BY JAMES BROWN SCOTT
Member of the Institute of International Law President of the American Institute of International Law
De Jure Naturae et Gentium Dissertationes
By SAMUEL RACHEL
Jurisconsult and Professor of Law in the illustrious University of Holstein
EpITED BY LUDWIG vo ΒΑΚ
Professor of Criminal Law and Procedure and of International Law in the University of Gottingen
Vol. I. A Reproduction of the Edition of 1676, with Introduction by Ludwig von Bar, and List of Errata.
Vol. II. A Translation of the Text, by John Pawley Bate, with Index of Authors Cited.
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Dissertations on The Law of Nature and of Nations
BY SAMUEL RACHEL
Jurisconsult and Professor of Law in the illustrious University of Holstein
Kiel : From the press of Joachim Reumann, University printer,
In the year 1676.
VOLUME TWO
THE TRANSLATION
By JOHN PAWLEY BATE, LL. D.
Reader of Roman and International Law in the Inns of Court, London
WASHINGTON, D. C. PUBLISHED BY THE CARNEGIE INSTITUTION OF WASHINGTON
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TABLE OF CONTENTS.
VOLUME I.
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Virtute Morali, De Bona Indole, and Dissertatio Altera De
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. Translation of Epistola Dedicatoria, Dissertatio Prima De Jure
Naturae, De Virtute Morali, De Bona Indole, and Dissertatio
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INTRODUCTION.
In his Elementorum jurisprudentig universalis libri tres, pub- lished in 1660, Samuel von Pufendorf denied the existence of a positive jus gentium (Law of Nations), distinct from the jus naturale. He maintained therein that States were universally subject to the Law of Nature only; in addition there were, of course, rights based upon treaties, and also customs observed be-
tween civilized States, but (said he) these treaty rights were valid only between the States that had concluded the treaty, and a
State might at any time renounce these customs; such conduct would admittedly expose the State to evils—such as reprisals and censure—but Pufendorf does not seem to attach great importance to these evils, and (as he by means of a few illustrations proceeds to show) they have at different times failed to deter governments and generals. This doctrine, which in 1660 Pufendorf, as a young scholar, had expounded in his Elementa jurisprudentie universalis (Lib. I, definitio 13, §§ 24-26), he restated in 1672 in his great work De jure nature et gentium (Lib. II, cap. 3, § 23) ; and we may readily imagine that the authority of the famous writer won many adherents to his teachings. His doctrine, how- ever, was not only erroneous; it was dangerous. According to it, it would not be possible for a custom in harmony with the actual progress of civilization gradually to assume the force of law; it failed, moreover, to recognize (1) the possibility of extracting a general principle of law from important stipulations recurring more and more frequently in international treaties, and (2) the fact that treaties, directly based upon generally accepted legal principles and concluded between the more civilized nations, will also by degrees be considered as authoritative by other and non-signatory nations, a phenomenon which, to be sure, first became conspicuous in our own day. Accordingly, to attack this doctrine, which favored arbitrariness and based the Law of Nations solely upon the principles of Natural Law established by ἃ priori reasoning, and at the same time to show that by the
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side of the jus nature there also exists a positive Law of Nations —this was a signal service. It was left to Rachel to render that service."
Samuel Rachel * was born April 6, 1628, in Lunden, a small market-town of Ditmarschen (Holstein). He was the youngest son and sixth child of Pastor Mauritius Rachel. His youth was one of hardship. When his father died, his mother sent the nine- year-old boy to school at Husum, where he remained two years; subsequently, his mother procured his admission to the Bordes- holm Academy, which had been founded in 1566 by Duke Hans von Holstein out of the revenues of a suppressed monastery of that place. This academy offered instruction and entirely free maintenance to a number of scholars (originally 12, and later 36). During five years Samuel Rachel enjoyed these privileges. In 1643 the students were dismissed from the institution, in con- sequence of the occupation of Holstein by the Swedish armies. Rachel then entered the Academy of Hamburg; but he remained there for only a short time, as his mother was unable to defray the cost of his maintenance in Hamburg. Shortly afterwards he was apprenticed to an apothecary; but finding the place uncon- genial he returned to the Bordesholm Academy, which in the meanwhile had been reopened. It was with great reluctance that he allowed himself (as he puts it in his autobiography) “ to be immured again in this scholastic or penal institution ”; but it was unavoidable, the means of the family having been consider- - ably reduced through expenditure incurred in the education of three older brothers. ‘“ The suffering and misery,” Rachel con- tinues, “ which I endured in this penitentiary can not be expressed in words; the mere remembrance of them fills me with horror.” Not only were the scholars underfed or given unwholesome food
‘In Pufendorf’s chapter 3, mentioned in the text, he refers to Rachel's doctrine, though he does not indicate Rachel by name. See Nys in Revue de droit international et de législation comparée, Vol. XVI (1914), p. 284.
? For Rachel's writings, cf. v. Ompteda, Literatur des Vólkerrechts, 1780, Vol. I, pp. 275- 278; for Rachel's life and works, cf. Jócher, Allgemeines Gelehrten-Lexikon, Vol. III, and Allgemeine Deutsche Biographie, Vol. XXVII, p. 104; for his life, cf. especially the ex- cerpt copied from Rachel's autobiography, in the library of the University of Kiel, and published by Ratjen in Archiv für Staats- und Kirchengeschichte der Herzogtiimer Schleswig-Holstein und Lauenburg, Vol. I (Altona, 1833), pp. 335-362, and Vol. III (1837), pp. 99-166.
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which brought on illness, but they also slept in rooms which were cold in winter and in summer visited by swarms of flies. Further- more, blows were showered upon them on the most trivial pre- texts, and at times the Rector of the institution would devise special tortures; for instance, in the scorching heat of summer he for a whole month forbade the scholars all outdoor exercise and had the windows nailed up. The instruction, however, was not bad; but the severity of the discipline exasperated many of the pupils to a desperate defiance, while it degraded others to a slavish fear. In view of these conditions we can not but regard it as proof of a strong, healthy, and sterling nature, alike on the physical and the spiritual side, that Rachel, although often find- ing life overburdensome and bereft of the loving care of his par- ents, was nevertheless able, in later life, to achieve great things. In 1648 he graduated from the Bordesholm Academy; and in accordance with the then prevailing custom he entered the Uni- versity of Rostock, to study there for three years at the cost of the Duke. To gratify the wishes of his kindred, and also because the Bordesholm bursary was specific in its object, Rachel took up the study of theology there. But he soon realized that he was little adapted to the pulpit; moreover the theological controversies of the time rendered the study of theology irksome to him. Accord- ingly, with the very ready approval of the Duke, he decided to pursue instead the study of history, philosophy, and jurispru- dence; but as regards the last-named, it was, as Rachel observes, too late for him to profit fully by the lectures thereon given by many of the able jurists then teaching at the University of Rostock. So, after three years and a quarter spent at this uni- versity, he went to Jena in order to devote himself mainly to the study of jurisprudence. Lack of sufficient means compelled him shortly afterwards to return to Holstein to earn his livelihood by teaching. He had, however, after four months, to relinquish a tutorship which he had obtained in a noble family, because the external conditions there were unbearable and threw him into a violent fever. Subsequently Rachel became a teacher in the Bordesholm Academy, which, however, deteriorated steadily; and after one year he found himself forced again to accept a tutorship in a noble family, this time in the district of Halber-
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stadt, Saxony. At last fortune seemed to favor him, for after seven months he accompanied his pupils to the University of Helmstedt in Brunswick. Here he studied for two years and was able to attend lectures on public law, notably those given by Conring, and made the acquaintance of prominent and famous men, such as the theologians Calixt and Christopher Schrader. Through an accident he failed to receive an appointment, which he had desired, to a newly founded Ritterakademie (gymnasium) in Lüneburg ; and nothing came of an offer of a position in Frank- furt-on-the-Main, because the project of establishing a higher gymnasium there fell through eventually. This offer, however, led to Rachel's remaining in Frankfurt for some time; and here, among other diplomatic representatives of the princes, who had come to Frankfurt on account of the impending election of an emperor, and of peace negotiations there under way, he made the acquaintance of Johann Schwarzkopf, the representative of Brunswick. Rachel became secretary to the latter, and on his recommendation was appointed professor of moral philosophy in the University of Helmstedt in 1658.
Here, besides an edition of the so-called Nicomachean Ethics of Aristotle, to which he wrote an introduction, Rachel also brought out a series of dissertations of a philosophical and moral nature. Heleft Helmstedt in 1665 in order to take an active and successful part in the establishment of the University of Kiel and to assume at once the duties of a professorship of the Law of Nature and of International Law in this university. The Dis- sertationes de jure nature et gentium ' appeared in Kiel in 1676.
Soon after, Rachel's activity as an academic teacher came to an end, an event due in part to divers intrigues hatched in the uni- versity and directed against him. He then went to Hamburg, where he became a diplomatic agent in the service of his patron, Duke Christian Albrecht von Schleswig-Holstein- Gottorp, whom the King of Denmark had driven out of his duchy. In 1678 he
*'These were published in one volume, which is reproduced here; it will be seen that it is the second dissertation which specifically deals with International Law, and that this topic occupies pp. 233-334 of the whole volume. It is with this second dissertation alone that we are concerned in this introduction. 'The two dissertations are dedicated to Otto Grote, Privy Councilor of Brunswick-Lüneburg, whose acquaintance Rachel had made at Jena. For Grote, see Allgemeine Deutsche Biographie, Vol. IX, pp. 758 et seq.
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represented this prince in the peace negotiations at Nymwegen; and until his death, December 13, 1691, he served the Duke in various other official positions and notably in diplomatic affairs, as for instance at Dresden, Regensburg, and Nürnberg. Finally he became Doctor of Laws, State Councilor, and also Swedish Privy Councilor.
For Duke Christian Albrecht he wrote several state papers. In addition to these he published in 1680 Introductio in jus Ger- manicum, Amstelodami, reprinted in 1680; and in 1681 Institu- tionum jurisprudentia libri IV (Kiel).
His autobiography and likewise his dissertations on Natural Law and on the Law of Nations stamp the author as a man of more than ordinary intellectual power; and the autobiography makes it clear that he did not lack strength of character.
In direct opposition to Grotius, Rachel distinguishes the Law of Nations from the jus naturale. According to Rachel’s theory (cf. 88 v-Ix, and in particular the beginning of ὃ Ix), the Law of Nations is part of the jus arbitrarium, which is based either upon agreements or upon customs (cf. ὃ 11). In custom, Rachel finds an implied agreement; for, States being independent of one another, obligations between them can come into being by agree- ment only. The implied agreement which shows itself in custom need not, however, be concluded between all nations; for we do not even know all the nations of the earth. All the requirements in this regard are met when several, and in particular when the civilized (moratiores, S XXIII) nations recognize a definite rule. On the other hand, an agreement can deal with the legal relations of the contracting nations only, so that by the side of the general Law of Nations (jus gentium commune) there exists also a jus gentium " proprium " , operative only between individual nations (8 xxut).
Rachel thought it furthermore probable that the jus gentium commune had its origin in the jus gentium proprium, by the de- velopment of what had been adopted in particular cases as fitting. With this premise established, Rachel proceeds to criticize the views held by a number of well-known authors regarding the
*Therefore, Rachel consistently denies the frequently made distinction between a jus gentium “ primevum " or “ primarium" and a jus gentium " secundarium" (ὃ xvu).
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nature of the Law of Nations, in particular the opinions of Zouche and of Albericus Gentilis (88 XXXI ef seq.) ; after which he passes on to an exposition of the Law of War. Rachel states that the Law of Nature demands a justa causa, that is, a serious injury, for beginning a war; that a trivial injury will not suffice— not being ground for a reparative action in civil law; much less can it justify the preternaturale remedium of war; that, more- over, there is no justa causa when reparation has been offered, and that the goal should always be peace. Finally, he says, the jus nature demands that only legitimate means be resorted to in war, and in this connection the jus arbitrarium, the tacitus consensus of nations, must be taken into consideration.
A war entered into in accordance with the Law of Nations pre- supposes, further, that it is undertaken by the supreme power of a State, and that its commencement has been notified to the oppo- nent with due solemnity, or in accordance with the prevailing custom (S8 XLIV, XLV). In the conduct of war, a distinction must be made between that which is lawful (/;citum), and that which is honorable (honestum). According to Rachel, it is still lawful to put to death children and women, and those who are willing to surrender, but not those who have been already taken prisoners; and, says he, in the judgment of the better writers it 15 also unlaw- ful to use poison. Property belonging to the enemy may without exception be taken and destroyed, not even excepting, in Rachel's opinion, property (edifices) dedicated to religious worship. Whatever is captured from the enemy in time of war, becomes, says Rachel, the property of the captor in such manner that the complete and final ownership must be universally and definitively recognized by the victor and third parties. As Rachel expressly states, there is in this matter no difference between public and private property (88 XLvII-XLIX). On the other hand, the rule whereby prisoners of war were made slaves no longer obtains among Christian nations, as Grotius in particular attests—a
*In $r—its logical connection with the preceding or following sections is defective— Rachel takes up the question of the extradition of criminals. He regards it as a principle of the Law of Nations that criminals who are sought should be surrendered, or punished by the nation within whose borders they have fled. This obligation, resulting from the Law of Nations, should, of course, be limited to offenses “ que statum publicum tangunt " (offenses against the state),.and to other particularly serious offenses.
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proof, as Rachel expressly points out, of the existence of a “ jus gentium commune minus late patens". ‘The victor, however, acquires supreme power over a completely subjugated State or over a subjugated part of the hostile State after cession has ensued (LI). Whatever offense is committed against the enemy during a truce is a violation of the Law of Nations (1.1). Rachel still con- siders postliminium as a valid title. He does not express any personal opinion regarding the treatment of hostages, but con- tents himself with citing historical precedents on the subject (LIv, LV). The harsh treatment to which enemies (and hostages) are liable by agreement between nations (ex placito) leads Rachel to the conclusion that much of the arbitrary Law of Nations con- tradicts the Law of Nature, and is, therefore, unjust; authors, says he, must in consequence distinguish, as Grotius did, between a jus gentium externum and a jus gentium internum, between a jus gentium " verum " (not contrary to the Law of Nature) and a jus gentium “ putativum " ; and, as Grotius demonstrated, the former tempers the latter and at times renders it inoperative (LVI, LVII).
Among the most excellent rules of the Law of Nations are those relating to the safety of ambassadors, that is, more exactly, those persons who (for the purpose of carrying on negotiations) are sent by the highest authority of one State to the highest authority of another State, and who, when sent to the opponent in a war, are called heralds. It is necessary, however, that they should be admitted as ambassadors by the other State.” The request for admission may be refused for justa causa; for instance, to the ambassador of a State that has shown itself particularly cruel in the war; likewise, to the ambassador of a ruler who is a con- fessed atheist, and for this reason cannot be trusted. Oftentimes, personal information 15 sought regarding the ambassador him- self. In the controversial question whether the ambassador is only protected against an improper exercise of power or is exempt as well from the jurisdiction of the courts of the country, Rachel
* [n § rxix Rachel cites examples to show that ambassadors are in no way protected in the States that have not signified their willingness to receive them; and, on the other hand, that trumpeters employed in time of war to carry messages to the enemy, are inviolable (Lxx).
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declares himself in favor of the latter alternative; should the case call for it, recourse must be had to the sovereign whom the am- bassador represents; and in an extreme case the right of self- defense is exercisable and might justify even the killing of the ambassador (LIX-LXVIII). The inviolability of an ambassador extends to his suite and to all the equipment of his hotel. Vio- lence to ambassadors in breach of the Law of Nations has often led to wars; Rachel seems not to disapprove of this, although he condemns retaliation in such a case (LXXI, LXXII). In connection with the law about ambassadors Rachel discusses the Law of Treaties. He observes that treaties of peace are often of far- reaching significance to a large number of nations and that, on occasion, observance of these treaties is secured by accessory pro- visions; one method, for instance—a method not always free from objection—is seen when a nation not directly concerned in the particular treaty guarantees its observance. There are also treaties of alliance of various kinds (LXXIII-LXXVIII).
Rachel now returns to discussions of a more general nature. After showing that it is necessary to distinguish between the precepts of morality (international courtesy) and the precepts of law (LXXIX), he refutes some erroneous ideas regarding the Law of Nations, and in particular the idea that the apportionment of Things (the earth) among the various nations and the punish- ment of the guilty are within the scope of the Law of Nations. According to Rachel, the apportionment of Things, that is, the right to property, comes within the scope of the Law of Nature; on the other hand, the right to punish is derived from the right to legislate; and no right whatever to punish is derived from the right of necessary defense exercised in war (LXXX-LXxxiII). Then he disproves at length the arguments in support of the opinion that there is no Law of Nations, an examination which he did not make at the beginning, as he might have been expected to do, because he wished first to set out in detail the contents of the Law of Nations. In answer to the objection that not all nations with- out exception are bound by the Law of Nations, Rachel reiterates what he has said already; and he meets the objection that the rules of the Law of Nations can not be traced back to specific treaties, by the proposition that a facitus consensus exists and that it is
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sufficient that something is accepted and observed as law, though the origin of the rule be uncertain. If, thirdly, it be asserted that on the one hand the precepts of the Law of Nations are uncere- moniously annulled or changed, and on the other hand are often disregarded, Rachel would, in answer, have us remember the force of Customary Law and of Desuetude. As for the man who, in violation of the precepts of the Common Law of Nations and as an enemy of God, indulges in capricious tyranny, Rachel declares that Providence is wont to curb and punish him (LXXXV- LXXXVIII).
Rachel's last topic is a somewhat extended refutation of the objection raised by Hobbes and Pufendorf (and already briefly criticized by our author) that nations are bound by the Law of Nature only. He shows, by citing specific instances, that much which is not derivable from the jus nature is nevertheless ac- cepted as a precept of the Law of Nations, and, vice versa, that much which corresponds to the jus nature is in fact not observed, unless we have in mind the violation of law, while, on the other hand, States are careful not to violate the Law of Nations, even when they are putting forward an unjust claim or carrying out an unjust scheme (cf. esp. CII). In this connection Rachel’s last argument seems rather strange (CVI-CXVIII), namely, that the use of coins by all nations as a measure of value and medium of ex- change is a legal custom not derivable from the jus nature.
In conclusion (CXIX-CXxI), Rachel inveighs most impressively against those who light-heartedly deny the existence of the Law of Nations, that common bond of nations, and thus conjure up a monstrous danger. On the other hand, as he says, those deserve the highest recognition who have already urged upon their nations and their rulers the establishment, by general treaty, of a Supreme College of Fetials, charged with the settlement of all disputes arising between nations, so that war can be waged only when a nation will not comply with a judgment of the College, or refuses to recognize its authority altogether; such a plan as Henry IV ' of France was said to have already conceived. This proposal (says Rachel) of course could not please those who do wrong and delight in bloody wars; but it would please those
" Regarding this plan, which in reality did not come from Henry IV, but from Sully, cf. Schiicking, Die Organisation der Welt, Leipzig, 1909, p. 45.
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nations which are truly imbued with the spirit of Christianity, and those which are unwilling to suffer wrong and to be oppressed by those who are superior to them in strength. Such a tribunal, says he, was especially commendable or necessary for settling the disputes of German States amongst themselves, and of German States with foreign countries; for, in truth, the German States formed a single realm,’ but that unity was being imperilled by internal strife and by the incursion of foreign powers. Rachel cites the Achzan League in ancient times, and in modern times the Helvetic League and the League of the Belgian Provinces, as useful examples of organizations for the avoidance of war within a larger whole.
As the foregoing survey of the contents of his work shows, Rachel was a sagacious author intent upon a practical purpose, and at the same time was not without optimistic, idealistic traits. But, as Ompteda says, he was at fault in separating the Law of Nature from the Law of Nations, because (as it is nowadays rightly put) it is not the Law of Nature, but the nature of the thing itself which is an essential source, and in strictness the source, of the Law of Nations. Still, as Ompteda further re- marks, the error is more an error of form than of substance, since the Natural Law of Rachel is directed, after all, to the relations between nations. Yet the error is not altogether negligible; for, all that which, as direct positive Law of Nations, rests on treaties and custom must, in its application to concrete cases, be inter- preted according to the nature of the thing itself; this latter, therefore, penetrates to a certain extent the positive rules in question, and appears everywhere as a regulating principle where those positive rules are deficient and doubtful, while according to Rachel’s conception the Law of Nature can, at times, furnish results which are not based upon the Law of Nations or are in conflict with International Law.
LUDWIG VON BAR. Góüttingen, June, 1013.
* Rachel here appeals to his celebrated teacher, Conring. Of his relation to this writer Nys writes: * Was Rachel an innovator? We must answer, No. Writers of the late seventeenth and early eighteenth centuries who dealt with his treatise De jure nature et gentium have remarked that its fundamental ideas were borrowed from that man of im- mense talent, Hermann Conring." Revue de droit international et de législation comparée, Vol. XVI (1914), p. 285.
Dissertations on The Law of Nature and of Nations
BY
SAMUEL RACHEL
Jurisconsult and Professor of Law in the illustrious University of Holstein
Kiel: From the press of Joachim Reumann, University printer,
In the year 1676.
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To the author's very illustrious and high-born Lord, the Lord Otho Grote; Councillor, in fealty most approved and of the highest dig- nity, of the most serene Duke of Brunswick-Luneburg; Governor of Frideland; Hereditary Ruler of Wedes- büttel, Fachenfelde, Jüen, Wrestadt and Knesebek, etc.; the author's Patron and good friend:
Health and unending Prosperity.
That you would be great and be occupied in great affairs and functions, my very illustrious Lord Grote, was for me no mere matter of guess, but was based on sure indications, what time we were fellow-students in the Julian Academy and there consumed I know not how many measures of salt. And just as this familiar companionship enables one to search out right well the natural parts and character of the mind, so it conduces to the formation and preservation of friendship. There was in you a burning zeal for learning, and although you gave yourself primarily to the studies which perfect the mind, yet you were in addition a sedu- lous follower of those arts and exercises whereby your body might be alike bedecked and equipped for the ready and skilful perform- ance of the duties of peace and war, and whereby the fortune which was yours by right of birth might be rendered more splendid still. There was in your disposition an easy suavity which lured all the better and more refined into an affection for you and which in due time was to pave for you a speedier way to substantial honors. Aye, what a lively joy I felt when what your character foretold came to pass, and not only so, but when your worth was matched on such agreeable terms with the prizes of Fortune, and its merits with her reward. And although, according to the old saying, a humanely disposed character often suffers a change through high honors, yet I reckon that that happens only to one whose mind chances to be but lightly tinged with virtue and wisdom, and not thoroughly imbued therewith. For Aristotle's saying is pro- foundly true, that there is no Society, if it be such in fact and
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il Rachel, on the Law of Nature and of Nations.
deserve to continue to be so called, but owes its preservation more to Friendship than to Justice. If, then, Friendship prevails, not only between persons who are united by the needs of nature, but also in matters of human institution, alike between equals and unequals, and even between Sovereigns and subjects, it is a seemly thing to give it stability by means of those posts which are every- where appropriate to the purpose, and for the members of Socie- ties to afford each other mutual support and good-will. For it is common knowledge how frail and perishable a thing the empire of a Prince is, unless buttressed by the aid of friends. And wherever Princes have given a man a trust, be it of a state secret or of an army or of a fortress, the prime requisite is Friend- ship if faith is to be kept and not prostituted by betrayal or other iniquitous dealing, even though the latter course be enjoined by Justice in the teeth of Friendship. Xenophon, whose purpose was to depict the ideal Prince in the person of Cyrus, represents Cyrus as holding this discourse with Cambyses: “ I would have you know, Cambyses, that the scepter whereby you retain your kingdom 1s not this golden one, but that faithful friends are a king's truest and trustiest scepter” (Cyropedeia, bk. 8). Al- though Princes have no difficulty in understanding that the best support of the burden of empire is to be found in the loyalty and aid and counsel of friends, yet it is by no means so easy for them to distinguish the true and faithful friend from those who feign to be such ; but this is a business which requires in themselves integ- rity of character, ripeness of judgment, and wide experience, attributes of his Cyrus which the writer already cited extols as follows: ‘‘ What happened towards the close of his life is a strik- ing proof of his own goodness, namely, that he could then rightly judge who were his faithful, loving, and constant friends” (Ana- basis, bk. 1).
Accordingly, now that the most serene Duke of Brunswick- Luneburg, a Prince of highest renown for wisdom, clemency, and statecraft, holds you, my very illustrious Lord Grote, among his friends, nay as the loyalest of the most loyal, and has, with singular penetration, admitted you to the innermost places of his great favor, you act worthily of this and of your office in doing every- thing with perfect good faith. What times we have fallen on, you know—how doubtful are the dice of Mars, and how a well-played
Dedicatory Letter. iii
piece often loses its reward by the decree of Fortune, and plans are all upset. There being then, in the right ordering of these matters, need of a foresight so minute as almost passes the art of man, they whose schemes prosper are not the only ones to be praised, but those also are to be esteemed who enter on no undertaking rashly or heedlessly or with low cunning, but whose conduct, frequently subordinated to the exigencies of the time, is marked by good faith and by that degree of wisdom which is practicable, and this although their plans, not for any ineptness but by reason of the inconstancy of human affairs, lack the success which was looked for. “ In dealing with danger,” says Cicero, “ we should copy the practice of doctors, who use mild remedies in mild attacks of ill- ness, but are driven to resort to hazardous and doubtful treatment when the malady issevere. Accordingly, it is madness, in a season of calm, to desire a storm; but by all expedients to keep off the mischief of the storm, when it does come, is the part of a wise man —and so much the more if the good to be obtained by getting well rid of it outbalances the evils one may be brought into by the attempt.” But just as Kings and Princes need friends of the most perfect fidelity, so, no less, do these latter need sincere friends if the cares of the former are to be aided by the counsels, or be light- ened by the subordinate activities, of the latter; and the more thoroughly they are guarded by a phalanx of faithful friends against the crafts and trickeries of the envious and malevolent and against the snares of pretense and of disguise, so much the firmer and safer, on the one hand, is their Prince’s favor towards them, and on the other, their own fortune, which is so exposed to the various shocks of time. How gravely, then, do those highly placed friends of Princes err and infringe the rules of wisdom who, in this regard, often take a pleasure in displaying their power and, so far as they can do it with impunity, in despising, irritating, offending, afflicting or downright oppressing others— seeing that this can rarely be done with complete impunity, Fear or Hatred being a bad guardian of Durability and of despotic Power. Every prudent person, therefore, counsels, nay exhorts, them to bind friends to themselves by kindnesses, and through the kindnesses which these render to evoke fidelity and respect and store them up for their own advantage. Seeing, then, my very illustrious Lord Grote, that you at one time caught in me a some-
iv Rachel, on the Law of Nature and of Nations.
thing worthy of your affection (I know not what it was, if not the insistence with which I never yielded to you in point of sincerity and affection), and that the great fortune with which you are adorned has not shifted you from that attitude, I gratefully pon- der on this undoubted kindness and good-will of yours towards me and fondly cherish it. I am not forgetful of the means by which Friendship between unequals, which in our Philosopher is called xa ὑπεροχήν, the ideal kind, is to be tended and strength- ened, so that the more the worthier friend surpasses the other in worth or in other social advantages, so much the larger share of the peculiar good of Friendship may fall to his lot. And, con- sistently therewith, inasmuch as I perceive how you, my very illustrious Lord, excel in pride of birth, and power, and worth, and great deserts, and splendor of official position, it is my part to wait on that surpassing eminence with devoted affection and fiting honor. To which end it is my desire to dedicate to you my commentary on The Law of Nature and of Nations as if it were a demonstration of my respectful regard ; and not only so, but to take up a public stand before others—aye and, should my work attain old age, before posterity too—with the intent that all should understand that, in proportion as you surpass me in dig- nity, I shall be all the more diligent in my respects to you. What my bent of mind is you know, how that I have no sordid aims or ambitious aspirations. None the less do I beg and crave of you, by your favorable regard and your faithfulness to your promises, not to disdain to preserve the memory of our long-standing friendship and its utility to me and mine, especially (for we are but men) should anything untoward befall me. We, on our side, will strive to deserve that boon by whatever duties and services and respects are in our power, and will pray God that all happi- ness may attend you and your high-born house and that He will suffer Himself to stand in our stead as debtor of the outstanding obligations.
One who most diligently respects your very illustrious, high- born estate:
SAMUEL RACHEL.
Written in the University of Holstein, at Kiel, on the 22nd of January, 1670.
With God's Help.
THE FIRST DISSERTATION. On the Law of Nature.
I. The traditional classifications of Law (Jus) are numerous and very various. .Ulpian, using the word Law (Jus) to denote Jurispru- dence (Jurisprudentia) or the science of Law (Disciplina juris) , makes two divisions of that study—the one Public Law, the other Private Law. And the latter he declares to be of threefold origin; namely, from the precepts of Nature, and of Nations (gentium), and of individual States (Dig. 1, 1, 1, 2). And then in his own fashion he describes Natural Law (ὃ 3), the Law of Nations (ὃ 4) and Civil Law (ὃ 6). Gaius divides up all Law into Civil Law and the Law of Nations (ibid., $ 9). By the former of these he means not the science of Law, but the Law which each State has adopted by way of positive institution as its own; by the latter he means Natural Law. Other divisions and subdivisions I for the present pass by, because, for my part, I look for a classification which, in accordance with the maxims of the logicians, operates on the immediate subject (Aristotle, Posterior Analytics 2, ch. 13). A classi- fication ought, on this principle, to proceed by a series of graduated partitions and not, as the saying is, by a jump. And if we apply these rules to the classifications of Ulpian and Gaius, neither will stand scien- tific criticism. Doubtless, as regards that classification which is usually attributed to Ulpian, it will be found preferable to Tribonian's: for Ulpian was not dealing with Law (Jus) in the absolute, as if it were an ultimate genus under which species were to be grouped; but his con- cern was with Roman Law, and it is that which he alleges to be derived from the precepts of Nature, of Nations and of the individual State. Now it is unquestionable that the books of Roman Law comprise laws and rules of varying kinds, some drawn from the Law of Nature, some from the Law of Nations and some of home-origin, born and raised in the Roman State. And that Law is, according to my thinking, prop- erly called the Law of Nations (Jus Gentium), of which traces appear in the titles of the Digest: On the Acquisition of Ownership (41, 1), On Captives and Postliminy (49, 15), On Military Matters (49, 16), and On Embassages (50,7). ΑΙ] τῆς same I am quite aware, and have elsewhere shown, that Ulpian's description both of the Law of Nature and of the Law of Nations is unsound. Now Tribonian, following at
I
2 Rachel, on the Law of Nature and of Nations.
the outset exactly in the footsteps of Ulpian with the assertions that the study of Jurisprudence is concerned either with Public or with Private Law, and that the latter is derived from the precepts of Nature, of Nations, or of individual States (Inst. 1, 1, 4), immediately passes to Title II and puts at the head of it the rubric in general terms, Con- cerning the Law of Nature and of Nations and the Civil Law (De Jure Naturali, Gentium et Civili). This, however, is an incorrect classi- fication, if it be taken that the thing classified is Law in the absolute, for it is not a series of operations on what comes up next and imme- diately, as will soon appear in the sequel. Nor is Gaius' classification of Law exact; for over and above the fact that he equivocally cries up the Law of Nations for the Law of Nature, his description of the Civil Law is such that these two species do not exhaust between them the substance, considered absolutely, of the thing classified. Now logicians teach that while each member of a classification must contain less than the thing under classification, yet all taken together should equal or exhaust it.
II. Aristotle, then, is perfectly correct in classifying Law (Nico- machean Ethics v, 7) into Natural and Positive ( Legitimum), the latter class comprising all laws of an arbitrary character, whether they are adopted as peculiarly suited to the needs of a given State, or of what- ever other kind they may be. And inasmuch as in this classification the subdivisions are made of what comes up next and immediately, each species of Law is contained in one or other of these subdivisions and can be referred to it as to a genus.
III. It may be urged that our Philosopher, too, is classifying not Law considered simply (ἁπλῶς), but the Civil Law; for his very words (in the same chapter) are: τοῦ δὲ πολιτικοῦ δικαίου, τὸ μὲν φυσικόν ἐστι τὸ δὲ νομικόν ; that is, Civil Law is in part Natural Law and in part Arbitrary. But the explanation thereof is as follows. He had shown that a State is a Natural Society, of the highest degree of elaboration, and that its aim is ἀρχιτεχνικόν ; that is to say, the aims of other lower or simple societies are subordinate and subservient to it, in such sort that man is not only φύσει ζῶον κοινωνικόν, by nature a social animal, but is also φύσει ζῶον πολιτικόν ; that is, drawn by natural instinct into Civil Society. For, although man has a natural appetite for what is good and attains it in the conjugal and paternal and domestic union, wherein he enjoys a certain degree of happiness, yet that union has not that completeness, does not comprise τὸ πέρας τῆς αὐταρκείας, the highest pitch of fulness, which Civil Society does (Politics i, 2). Accordingly, as not even civil happiness is absolutely the Highest Good (Summum Bonum), but only of its kind, that is in relation to civil life, there is no doubt that Nature's intent was to lead man on to the type of life, the completest form of
On the Law of Nature. 3
union, in which he should attain τἀνθρώπινον ἀγαθόν, human good, and that in the highest possible form (Nic. Eth. i, 2, 8 8).
IV. For the better understanding hereof it must be understood that Union (Societas) means a unity built up of many individuals working together for the common weal. But the question arises, What is the con- stituent feature of a Union, Society, regarded as a unit? Law. For it is by this bond that every Society is kept together and all its members compelled to one and the same common purpose. For none can lay down commands or prohibitions to himself, says the jurist Marcian (Dig. 4, 8, 51). If, however, you prefer to say that Societies are kept together by Order, that way of putting it does not differ from the other, ἡ yap τάξις, νόμος, * For Law is Order," says Aristotle (Politics iii, 12).
V. All Societies are either of natural or of human institution. Of the first kind are those to which Nature has assigned some natural end, implanting in man an appetite to pursue that end and teaching him the means appropriate thereto; for just as Nature never does anything pur- poselessly, so also she does not move towards any indefinite objective, but intends that human appetites be limited to some definite ultimate end and find repose therein. Of the second kind are the Societies which are formed at the pleasure and discretion of mankind on the principle of that changeable and varying idea, Utility.
VI. Seeing, then, that all Societies are held together by the bond of Law and that by general admission Law is the conserving element of human Societies, it is clear that, the ultimate aims of these being very diverse, they can not be governed by one kind of Law, but some by Natural and others by Arbitrary Law. Nor is the one kind or the other kind of Law quite the same in all Societies, but varies with the differing characters of the Societies and of the purposes they serve. For Conjugal Society is subject to one kind of Law, Paternal Society to another, and that of master and servant to a third; and so it is in other varieties. Moreover, Natural Societies are not based in our times on Natural Law alone, but very often there is a subsidiary application of many laws of the Arbitrary type, matters which affect the essence and ultimate aim of those Societies resting on Natural Law, but intermediary matters and their subsidiaries, furnished by the principle of Utility (αὐταρκεία or εὐπορία), being left in a large degree to human discretion and therefore determined by Arbitrary Law.
VII. Now just as human Societies differ one from another, some being more perfect than others, so it is with the diverse laws of diverse Societies; some are more perfect than others. For although any given Law of Nature as found in any given Natural Society is perfect, yet if these Societies and their ultimate aims are measured one with another, undoubtedly some of the laws of these same will be found, as regards the attainment of solid welfare (εὐδαιμονία or εὐπραξία) more perfect than
4 Rachel, on the Law of Nature and of Nations.
others and endowed with a differing degree of authority (κυριώτερα). In the same way, if the laws of other Natural Societies be compared with the Civil Law, the result must be that given by Aristotle in Nic. Eth. v, 6, §§ 7, 8: ‘Inthe former there is no Civil Justice (Jus Civile), but only a certain Justice (Jus) which is analogous to it; for Justice (Jus) in the strict sense (xàz' ἐξοχῆν) can exist only where the relations of people are determined by Law (Lex)." Hence it appears that the words Jus and Lex have their root in a common basal idea (ἀφ᾽ ἑνός dici), being primarily applied to Jus and Lex of the Civil type and secondarily, and in a lower rank and degree, to the Jus and Lex of other Societies than the State. Accordingly, when the Greek paraphrast, dealing with the text just quoted from the Philosopher, bethought himself of the Law prevail- ing in the Paternal and Domestic Societies, he added: κυρίως τοίνυν xai ἀληθῶς δίκαιόν ἐστι τὸ διανεμητικόν, καὶ τὸ διορθωτικόν. ὅπερ ἐστὶ τὸ πολιτικόν. * "That is properly and truly Jus which is called Distributive and Cor- rective (Justice) —Aand such is the Civil Law (Civile Jus).”
VIII. Hence it may be gathered why it was not Law in any inde- terminate sense, but the Civil Law such as a State makes entire use of, that the Philosopher divided into Natural and Arbitrary. He had, you see, to choose the right first term in his proportion or analogy (prima- rium analogatum, as the Latin philosophers with too little Latinity style it) in order to fix by reference to it the nature of those laws (jura) which are inferior in rank to Law (Jus) properly (κυρίως) so called, namely, the Civil Law. If, then, Law (Jus) of the most perfect type as found in the most perfect Natural Society is correctly classified into Natural and Arbitrary, doubtless the laws of the less perfect Natural Societies admit of the same treatment. Be it then agreed that all Law used by a State or by men, those naturally political animals (φύσει ζῶα πολιτικά), is either Natural or Arbitrary.
IX. The best classification, then, of Law in the general sense is that given by the Philosopher (Nic. Eth. v, 7), whereof one member is φυσικόν, Natural, and the other νομικόν, Arbitrary Law. ‘ Natural" he explains, in the same place, as follows: '' That which has everywhere in the world the same force and is independent of the will of a lawgiver.”’ And he illustrates this in ὃ 5 of the same chapter thus: ‘‘ That which exists by Nature is rigid and unchangeable Law and has the same force everywhere, just as fire burns both here and in Persia." ‘This makes it easy to see how far-reaching is the bindingness of this Law, in that it affects all men; but here we touch a matter requiring further investigation.
X. Before, however, we scrutinize the innermost parts of Natural Law, some terms and words must be explained and differentiated so that our argument may proceed without a stumble. Note, then, in the first place that there is a difference between Natural Justice (Justum Natu-
On the Law of Nature. 5
rale) and Probity (Honestum) ; for, although the two agree in nature and moral quality, still they differ in adopting different attitudes and points of view. For if, putting aside other meanings of Probity, you understand it to mean that which displays itself in a virtuous character and in the conduct which flows therefrom, still Justice differs from it in this respect, that it contains at the same time the idea of obligation and of relation to another party, while Probity marks a perfection, an excel- lence and moral dignity of its subject and possessor regarded as an iso- lated individual. In saying this I do not, however, mean to assert that all Probity is included in Natural Law so as to put on the nature of Justice, seeing that many things are deemed Honest in opinion and morals which are not sanctioned as Just by Law, especially by Natural Law. Ulpian himself recognized this distinction (Dig. 50, 16, 42; and 50,13; 1545 ).
XI. There is a close connection also between Probity and Befit- tingness (Decorum), but so that a difference between the two can be detected. ‘‘ Befittingness," says Cicero, ‘‘ is conduct which accords with that excellence in man whereby he, in his nature, differs from other animals." As, however, opposites often throw light on each other, it will not be out of place to recall here the passage in which Cicero (Orator, bk. 2) describes the unbefitting or inept (ineptum) : “ When we say that a man is ineptus, the word seems to me to be taken from the fact that he is non aptus, not fitted, and that has a wide application in the custom of our speech; for he who either is not alive to the require- ments of the time, or talks too long, or obtrudes his own personality over-much, or does not take into account the dignity and susceptibilities of those in whose company he is, or, in a word, jars or exceeds, he is said to be ineptus." Guilielmus Grotius, in his book De principiis juris natu- ralis (ch. 3, n. 4), says that Decorum is often indicated by another word, namely Consilium ( Counsel), and that its force is rather hortatory than obligatory. And Cicero recognized that distinction, though he could not express it, saying, ‘‘ The difference between Probity and Befitting- ness can be more easily understood than explained; for whatever Befit- tingness there is in any action, it immediately arises from the Probity of it" (Offices 1, 27,94).
Richard Cumberland (Prolegomena to his De legibus nature, § 16) illustrates this neatly in connection with his theory of Benevolence. *" Since," says he, ‘‘ the condition of universal mankind, being most abundant in all mental and bodily gifts of Nature, fitly proportioned one to another and provided with a view to the best ends, is naturally exceed- ingly beautiful (this word being clearly consistent with the definition of Beauty as something deduced from the shape and harmony of the parts), it is obvious that those actions which are called forth as fitted, of their own inherent strength, to setting up and conserving this condition, may
6 Rachel, on the Law of Nature and of Nations.
deservedly be called Beautiful or Decorous. Hence we can obtain an explanation of τὸ καλόν (the Beautiful) and τὸ πρέπον, or the Decorous, so often lauded by philosophers in the conduct of the virtuous.” My own view is that, though there is close relationship between the two, the Decorous is remoter from the truly Just, while Probity is nearer to it, at any rate in many matters.
XII. The anonymous writer (a Belgian) of Dissertatio epistolica de justo et decoro, admitting, as he does, that a difference exists between these two, divides sins into two classes, according as they are against Nature, strictly speaking, or against Decorum and the natural dignity of man (pp. 41, 89). Although this is not a groundless distinction, and although there are undoubtedly varying degrees of morality, I am never- theless dissatisfied with the description given of sins against the dignity of man, in which nothing is withheld from God or one’s neighbor which should in Justice be rendered; and I also disapprove of the miscellaneous examples adduced under this head, as if Whoring and Drunkenness offended only against Decorum and the dignity of man. Supplemental remarks on the explanation of the words mentioned a little while ago may be found in my introductory discourses on Cicero’s Offices. In these I have, further, shown at some length what Duty (Officium) is and how it differs from Justice (Justum). It is obvious that the former is of wider reach than the latter and that it does not always involve a necessary element in the Obligation. '' How much wider-reaching the rules of Duty are than those of Law," remarks Seneca (On Anger, bk. 2, ch. 25).
XIII. Again, there is a great difference between, on the one hand, To be by nature, To spring from a natural inclination, To be agreeable to Nature, or Natural Law, and, on the other hand, really To be by a Law of Nature. For ** Natural” is often predicated of (1) things to which Nature inclines, (2) things which she only allows, (3) things which she, after her fashion, pronounces to be honest though not admit- tedly due, (4) things not repugnant to the Law of Nature and which may so far be styled just in that they are not unjust. But those things alone spring from a Law of Nature which Nature enjoins or forbids in such sort that the one can not be omitted or the other committed with- outsin. Guil. Grotius, in his De principiis juris naturalis (ch. 2, n. 3), an able posthumous work written in extreme ill-health, supplies yet another meaning, namely, that ** Natural " is used of what is usual—a meaning, however, which his brother Hugo Grotius had already propounded in his De jure belli ac pacis (bk. 2, ch. 12, § 26). Similar is that according to which “‘ Natural " means what descends from long-standing custom. That things like these must be separated from those which are properly of Natural Law, Mevius insists in his Prodromum (insp. 2, n. 8). And this is how Dig. 4, 4, 16, 4 and 50, 17, 7 call for explanation. With
On the Law of Nature. 7
these matters premised, let us now come to closer quarters with our subject.
XIV. When, then, we speak of Natural Law, first of all and rightly the question comes, What is that '* Nature"? I do not propose to col- lect here a medley of numerous opinions and of diverse views; for on this point one man's diligence—that of Selden (De jure nature et gen- tium. juxta disciplinam Hebraeorum, bk. 1)—can suffice. But I will track out truth by the right way. Justinian, and I think very appro- priately, refers this matter to Divine Providence, saying (Inst. 1, 2, 11) : “ Natural Laws are those which are observed by all peoples alike and have been appointed by Divine Providence ’’; and also in another place (Inst. 2, 1, 11): " Natural Law is that which Nature produced with the human race itself." For, because (as said above) man is by nature a social animal, that is, has received from Nature an instinct and inclina- tion which lead him to form Societies, and to that end has received from the same source the peculiarly well-adapted organ of speech, all these things can come from no other source than God, Whose provi- dences are, like other created things, ordained each to its own end and are upon that principle upheld; and so man, too, is led by the institution of Societies to the end prescribed by God. For, were this not so, the absurdity would follow that brutes and plants and other created things are more in God's care than man is, for whose behoof everything was founded, as the Stoics held of old and as can not be denied by any sane person. And although the Apostle's words (1 Cor. 9, 9) " Doth God take care of oxen? " may seem to be opposed to this, yet really they con- firm it; for the Apostle does not mean that oxen are absolutely not in God's care, but that men are more so. The Book of Wisdom (ch. 6, v. 8) well says: ‘‘ He hath made the small and great and careth for all alike," ὁμοίως re προνοιεῖ περὶ πάντων ; that is, He has left nothing outside His providence and care. NHotoman, accordingly, receives a well- deserved castigation in the commentary of Bachov on Jnst. 1, 2, 11, aforementioned, for his over-hasty remark that the words “ divina providentia constituta" (appointed by Divine Providence) are an inept addition inasmuch as civil laws are also so appointed. For, granted that Divine Providence at times directs the counsels and wisdom of lawgivers in the creation of Arbitrary Law, there still remains a very great differ- ence between it and Natural Law. For Natural Law descends in no other way than solely and immediately from Divine Providence; and just as it is lawful for human lawgivers to change or repeal their own Arbi- trary Law, so it is alike futile and unlawful to attempt the same in regard of Natural Law.
XV. Now Gaius (Dig. 1, 1, 9), whom Justinian (Jnst. 1, 2, 1) follows, gives a slightly different description of Natural Law (which he καταχρησικῶς, by a misuse of language, there styles Jus Gentium, Law of
8 Rachel, on the Law of Nature and of Nations.
Nations), namely, “‘ That which Natural Reason has established among all men." Not a few jurists adopt a similar attitude. Thus, Grotius declares that human nature is itself the parent of Natural Law (Prole- gomena to his De jure belli ac pacis), and both he and many others define this Natural Law as the dictate of Right Reason; and who has not heard that saying of the philosophers, 6 νομὸς cari λόγος ὁ ὀρθός, “ Law (especially Natural Law) is Right Reason "? ‘ There is," says Cicero (Laws 1), ' one Law which is the cement of human society and is created by one lawmaking activity; namely: Right Reason directed towards the issuing of commands and prohibitions; and whoso ignores this activity, whether it be as written or as unwritten Law that it has taken shape, he is unjust." I do not desire to collect more utterances of others to the same effect.
XVI. Now what it is intended to convey by propositions of this kind seems this, that Divine Providence, from Whom mankind has received the instinct and inclination for Natural Societies, has fortified these same with a corresponding Law and preserves them so united by that bond which is in the highest degree suited to the rational nature of man. For if we look at other created things, we perceive that each is furnished with the means and instruments best adapted to its particular ends, so that it would be both absurd and impious to say or think that God bestows less care, or none at all, on man. When Aristotle contends that Nature has done nothing in vain, and especially that she has allotted to man a definite end, supplying him at the same time with the means for compassing it, he illustrates his point by the following passage, among others: '* Can it be that there is a special work and activity of a smith and of a cobbler " (and add of bees, ants, silkworms and such like) ‘‘ but none of a man? Is man born given to sloth and laziness? or, on the contrary, shall we be justified in pronouncing that, just as the eye and the hand and the foot and the other separate members have each their appointed task and func- tion, so man, too, has, over and above all these, a special task of his own?” (Nic. Eth. i, 7, 8 33.) Since, then, man is constituted by nature a social animal and it is his peculiar task to live according to reason, so that in civil life he may find constant occupation εὐπραξίᾳ, in well-doing, Divine Providence has prescribed rules of life which are best suited to his rational and social nature, and these are the very rules of Nature— rules issuing, that is, from Nature in the active sense (Natura naturans), God to wit, Whose providence directs everything to its due end by fitting means, and adapted to Nature in the passive sense (Natura naturata), man to wit, as a rational and social animal. Grotius, in the Prolegomena to his De jure belli ac pacis, makes the same point in these words: '" Among the things which are peculiar to man is the appetite for Society, not for any society whatever, but for one which is tranquil and ordained to match the character of his intelligence." The ordaining thereof is
On the Law of Nature. 9
effected by the providence of God by means of His laws, whereby He knits together each society and its members. Hence, too, Aristotle (Politics i, 2) lays it down, and correctly, that speech, an instrument granted by Nature to man for the better establishment of Society, is fitly designed by Divine Providence for declaring what things are beneficial or hurtful, and what are just or unjust.
XVII. Further, some give such an interpretation to Natural Law as that it is susceptible of natural ascertainment and that its principles are congenital with man himself; and to that end the sayings of the Apostle in the Epistle to the Romans, chs. 1 and 2, are commonly cited, namely, τὸ γνωστὸν τοῦ θεοῦ φανερόν ἐστιν ἐν αὐτοῖς and ὁ γὲ θεὸς αὐτοῖς ἐφανέρωσε, “ That which may be known of God is manifest in them, for God hath shown it unto them." And in the same place, γνόντες τὸν θεόν, οὐχ ὡς θεὸν ἐδόξασαν, '* When they knew God, they glorified Him not as God." Also the passage, τὸ ἔργον τοῦ νόμου, γραπτὸν ἐν ταῖς καρδίαις αὐτῶν, “τῆς work of the Law, written in their hearts "—a passage which is fully and accurately explained by Joannes Adam Osiander in a special part of his treatise, Typus legis nature. And very sound is the well-known division of Theology into Natural and Revealed; the former comprises all pious duties as well as the other Laws of Nature, “ and in the light of Reason mounts from the things which have happened and are happen- ing and are present to our senses up to the knowledge of God, its princi- ples, like those of other philosophic systems, being planted in our minds by Nature." (These are the words of our well-known countryman Calixtus, Apparatus theologie, p. 3.) But what the nature of these principles is, and whether they are congenital with man, and, indeed, whether ἑκτικῶς, habitually, they are congenital—on these points there is no unanimity, but considerable divergence of opinion. Epicurus styles these principles προλήψεις, that is, Preconceptions; Cicero in different places styles them Notions (Notitiz), and Sparks and Elements (Igniculi et Semina). Joannes Sperling, the renowned philosopher of Wittenberg, describes those Notions as being ‘‘ States of mind (Habitus) induced from earliest infancy and impressed by Nature before the dawn of Reason," and he divides them into the Speculative and the Practical (Dissertatio de principiis nobiscum natis, ch. 1). But, with all respect to him and others, it does not seem to me correct to go so far as to say that such states of mind are or were innate in us in our infancy, for
Cum ventum ad verum est, sensus moresque repugnant.
(When we have arrived at the truth, our senses and characters fight against it.)
If, however, the knowledge of the entire propositions whereof the Laws of Nature consist be innate in men, every one would have one and the same notion about them, because the things that pertain to man by Nature pertain to him always and pertain to every one; but how differ-
IO Rachel, on the Law of Nature and of Nations.
ent the case really is, experience abundantly shows. Accordingly I hold the remarks of Balthasar Meisner (Philosophia sobria) much more consistent with the facts: “‘ A controversy has arisen," says he, ‘‘ about innate notions, which some deem to be nothing but the naked δύναμις (power) or faculty of recognizing God, directly Reason begins to show itself in man." So also with the remark of Timpler (Systema metho- dicum metaphysice) , ‘‘ The capacity and ability to acquire knowledge of principles is innate in man, but not that knowledge itself." And similar to this is what Piccart says (Synopsis organi), ‘‘ Let us accept the con- clusion that principles are not implanted in us by Nature, but that certain faculties are so implanted, by the aid (as it were) of which we may attain to the knowledge thereof." With these may be ranked the anonymous writer (a Belgian) of Dissertatio epistolica de justo et decoro (p. 73). And on this ground Guil. Grotius (De principiis juris natu- ralis, ch. 1, n. 5) interprets Nature as that natural working of God which Is fixed in our minds and whose author is God.
XVIII. Now the views of the ancients on this matter are easily ascertained : for Plato tells in his Philebus how the cup of Lethe, or For- getfulness, is given one to drink at birth, and that, when its effects have been counteracted by due education, we learn and, as it were, revive in our memory the common notions in question; and Aristotle (On the Soul, bk. 3) compares the mind to a cleaned tablet (tabula rasa), with no writing on it, but on which everything can be written. But as regards the Platonists, they seem elsewhere to postulate innate ideas of Natural Laws. Accordingly Cumberland, in his philosophic disquisition De legibus nature (Prolegomena, § 5), writes ingenuously and modestly as follows:
“1 indeed have not had the good fortune to attain to the knowledge of Natural Laws by any such short-cut, and it does not seem reasonable to base the whole doctrine of Natural Religion and morals on that hypothesis (namely, the innate knowledge of Natural Laws) which has been rejected by the majority of philosophers, Pagan and Christian alike. But I have decided not to attack this opinion, since I heartily wish the utmost degree of success to anything which conduces to piety and good morals, it not being impossible that notions of this kind are born with us and then imprinted afresh in us from without."
XIX. And the Apostle's text does not father any other opinion, for Thomas Aquinas, in his commentary on that Epistle, gives the same interpretation concerning the internal light of the understanding, be- cause that is the channel through which the will of God might be made manifest to the Gentiles. For as soon as flashes of reason begin to be utilized, first one and then another Law of Nature, exactly correspondent to the rational and social nature of man, emerges from time to time, and Right Reason, that is Prudence, adopts them in actual life—unless it
On the Law of Nature. II
happen that, before Reason has attained through Prudence to perfec- tion and ὀρθότης, the lures of pleasure and vice have encumbered its path and bad education, or none at all, or neglected, has checked in the blade the good crop of character. ἔστι ye κακία φθαρτικὴ ἀρχῆς, '* For Vice is powerful to overthrow and destroy principles " (Aristotle, Nic. Eth. vi, 5, $8 16, and 12, ὃ 33; and vii, 8, $8 12). And Cicero (Tusculan Questions, 3) makes the following lament on the matter:
* Nature has furnished us only with some few sparks, which we soon so extinguish by bad morals and depraved opinions that the light of Nature nowhere shines out. The seeds of virtues are connatural to our dispositions, and, were they suffered to ripen, Nature herself would lead us to a happy life; but now, as soon as we are born and received into the world, we are at once familiarized with all kinds of depravity and wrong opinions, so that we may be almost said to suck in error with our nurse's milk. And on our return to our parents, that is, when we are put into the hands of tutors and governors, we imbibe so many errors that truth gives place to falsehood and Nature herself to established opinion."
Cebes depicts this in his Tabula, where at the first of life's portals man is met by ἀπάτη, Imposture, πάντας τοὺς ἀνθρώπους πλανῶσα, seductress of all men, who sets before every one πλάνην xai ἄγνοιαν, error and igno- rance. And hence it is that such various opinions on Natural Law have arisen, often very remote from one another, and that its investigation 15 so difficult and its precepts ascertained and promulged sometimes over- precisely, sometimes over-obscurely.
XX. We may recapitulate what has been so far said under three heads. First: The Law of Nature derives its origin and authority from Divine Providence. Second: Its rules and precepts are most fitly adapted to the rational and social nature of man. Do not let any one, however, think that human nature as stained with various vices is here meant, for, filth of this kind being contrary to the Law of Nature, it must be assumed that it is to unimpaired and uncorrupted human nature that God has adapted His laws; for although the upright soul has no difficulty in recognizing its faults, yet it is not wholly ignorant of the standard to which it should attain. Hence comes our Third prop- osition: The Law of Nature must in consequence be described as that which can be perceived and recognized by the light of Natural Reason; and it is therefore false, and rash babbling, whoever says it, that we can have no sure knowledge of the Law of Nature apart from Revelation, a doctrine contradicted by the Apostle himself where he declares the Gentiles who spurned the obligation of the Natural Law to be ávazoAo- γῆτους, inexcusable (Romans, ch. 1). To these, somewhat tardily, shall be added a Fourth : That this Law is consistent with Nature in the active sense (Natura naturans), that is, with God Himself, from Whose
12 Rachel, on the Law of Nature and of Nations.
Justice these rays of light issue. I would that these four essentials or properties of Natural Law were carefully noted and, where necessary, compared and conjoined one with another, for in that way we shall solve without much ado not only a number of trifling questions but also some which may seem difficult.
XXI. That being so, I am not a little surprised that so many have been found, ancients and moderns alike, not only doubting whether there be any Natural Law but also fighting against the idea with all the force of their mind. Such of them, forsooth, as have been tainted with atheism, and have gone about to banish all Natural Law from Society, have acted just like those whose lot it is to be the slaves of a proposition, θέσει δουλεύειν ; as to the rest and those who have taken any other attitude towards the principles of Natural Law (of which more later), I can not divine what has come into their minds. Of the ancients, Archelaus, a disciple of Anaxagoras, has the following attributed to him by Laértius: τὸ δίκαιον εἶναι καὶ τὸ αἰσχρὸν οὐ φύσει, ἀλλὰ νόμῳ, “ Goodness and badness are not of Nature but of Law." And Laértius, in his life of Aristippus, attributes to the Cyrenaics, μηδὲν εἶναι φύσει δίκαιον, ἢ καλόν, ἢ αἰσχρόν, ἀλλὰ νόμῳ καὶ ἔθει, “ Nothing is by nature right or fair or wrong, but only by law and custom.” And the Sceptics maintain in Sextus Empiricus’ book against the astrologers, φύσει νόμων οὐδὲν μέλει, “ Nature gives no heed to Law." The doctrine of Carneades, the Academic, I will give in the words of Lactantius (Divine institutiones, bk. 5, ch. 6) : ** Men have, on grounds of expediency, established for themselves laws which differ with differing character, and which are often changed in the same society according to circumstances; for there is no such thing as Natural Law," etc. The same thing was in Horace's mind when he wrote (Satires i, 3) :
Jura inventa metu injusti fateare necesse est; Tempora si fastosque velis evolvere mundi. Nec Natura potest justo secernere iniquum.
('That Laws were introduced through dread of injuries, one must needs confess if one search into the annals and records of the world. Nor can Nature effect the severance of right from wrong.)
Even worse than these are the Χειροδίκαι, those who measure Law with their hand, and who propose to associate the two utterly opposite things Might and Right; this is what they say: ἀνδρὶ τυράννῳ ἢ πόλει ἀρχὴν ἐχούσῃ οὐδὲν ἄλογον ὅτι συμφέρον, " For a monarch or for a state that exercises rule, there is nothing that is absurd or inconsistent with right and reason, if only it be expedient”? (Thucydides, bk. 6). The Spartans made the same mistake, and Plutarch says of it in his Agesilaus, ‘‘ The Spartans place the first principles of rectitude in what is expedient for their coun- try, and neither know nor teach any other law than such as may increase the welfare of Sparta." And this the Athenians made a matter of
On the Law of Nature. 12
reproach against them, “‘ The upright, in their view, is the pleasant, and the just the expedient." Nay, even Aristotle himself has the fol- lowing passage in accordance with the view of certain ancients (JVic. Eth. i, 3, 8 3) : “ In those matters which are honest and just, so far as politics is concerned, there is such a variety and so much that is tentative that they seem to be founded not on nature but on the will of man." When Epicurus had forsworn Divine Providence, he imbibed the same poison; Cicero refutes him, De legibus 1. Lactantius refutes Car- neades, and so does Grotius in the Prolegomena to his De jure belli ac pacis.
XXII. What, except the hypothesis of atheism, can have led some to such absurd views of the Law of Nature is a question correctly dealt with by Bachov, a philosopher and jurist second in merit to none. Com- menting on Zz5t. 1, 2, 1, he writes that, since they had observed that the laws of different peoples were not only diverse, but even contradictory, in regard of matters for which the Law of Nature had provided rules, they had ended by denying with headlong rashness the existence of Natural Law at all. Mevius enumerates additional reasons in his Prodromum (insp. 2, n. 2, p. 51). And this same point seems to have moved Aristotle; for, after raising for himself the objection that, while the things which are by Nature are immutable, yet the Law of Nature Is seen to take different shapes among different peoples, he lapses into the rejoinder that at any rate Law would be immutable among the gods (Nic. Eth. v, 7, ὃ 5). Thus, warlike races held it not only lawful, but a matter for boasting, that they made the neighborhood unsafe by their robberies. ‘‘ Robberies committed beyond the borders of each state bring no disgrace," says Cesar of the Germani. μητρομιξία, incest, was not reckoned foul among the Persians. The most absurd and loath- some idolatry commended itself to the Egyptians, for they made deities not only of τὰ πετεινά, τετράποδα, καὶ ἑρπετά, things winged, four-footed and creeping (on which see the Apostle, Romans, ch. 1), but also of the leek and the onion. And what shall I say of the frightful sacrifices usual among the Pheenicians, Gauls of old, Massagetez, Tauroscythians, Derbices, Arcadians, and Jonians, and at the present day among the Mexicans, Peruvians, and other Indians, who offer up their own tender children? or of the cruelty of the Japanese, who on the advice of their Bonzes (priests) either procure abortion or smother the newly delivered foetus? or of the foul lust of the Chinese, who defile themselves with perverted passion? In some places it was honorable for young girls to obtain a dowry by debauchery. Among the Spartans there was no crime of adultery. '' There is on record the saying of one Geradas, a Spartan of the olden days, made to a guest who enquired what the penalty for adultery was in Sparta. The answer was, ‘ The adulterous guest is not known among us.’ ‘ But suppose he made his appearance? ’
3
14 Rachel, on the Law of Nature and of Nations.
retorted the other. Geradas said, ‘He would atone with a bull big enough to lay his head across Taygetus and to drink at the Eurotas.' And when the other exclaimed in surprise, ‘ How can there be so big a bull?' Geradas rejoined, * And how can there be an adulterer in Sparta?'" The passage is in Plutarch's Lycurgus (p. 80, edition by Herman Cruserius). And theft, no matter how craftily carried out, was deemed by the same folk an excellent προγύμνασμα, or preliminary training, for the art of war. And so if any one were caught in the act of theft he received a terrible thrashing; and Plutarch tells, in the place quoted, how in his time he had seen many young men die while being beaten for that offence on the altar of Diana Orthia. This discipline was so successful that an instance is adduced in which a person had car- ried off a young fox by theft and had wrapped it up in his cloak and, when the beast tore at his belly with its claws and teeth, he bore it, so as to avoid detection, until he swooned away. Such disgusting blemishes as these disfigured the laws of Lycurgus and of others, whether codes of Law or systems of Morals, and cases of detestable license were devel- oped—further details of which I abstain from giving, because any one reading the ancient or modern history of geographical discovery in this or in earlier centuries can not avoid coming across frequent instances. (See Plutarch, On Isis and Osiris; Juvenal, Satire 15; Strabo, bk. 8; Herodotus, bk. 1; Diodorus Siculus; Julius Cesar; Ovid; Lactantius; Tertullian; Theodoret; Hugo Linschotten; Joseph Acosta; Aloysius de Cada Mosto; and Ludovicus Vartomannus.) George Calixtus, in his Epistola theologica moralis (pp. 49 onwards), has collected from these and other writers a compendium of that kind of horrible wrong-doing.
XXIII. If what has been said above be thoughtfully examined, I think it will furnish a refutation of those who have such impious opinions about the Providence of God and Natural Law. For I do not think any one will be found rash enough to deny that man is by nature a social animal; nor do I think there will be any one to deny that the bond and buttress of every form of Society is Law of some kind and that com- munity of Law is inseparable from community of Society. So, too, I think there will be none to deny that there are certain Natural Societies, that is to say, Societies towards the formation and perpetuation of which an instinct has been implanted in man by Divine Providence and the capacities needed for this end added. And so I conclude that there will be no one who, granting the existence of certain Natural Societies, will yet contend that they have been left destitute by Nature of the bond of Law. For if Providence designs an end, namely Society itself and the community of advantages offered by each society after its kind, surely It has also bestowed that gift without which those ends can not be attained or retained, namely, that everything should move forward with a definite observance of Law and in an ordered fashion, and be shared
On the Law of Nature. Ig
by the members of the society without hurt or breach of peace and con- cord. I hold that none of the premises can be denied without absurdity, and trust that every one whose brains are not addled will affirm them. The force of this argument was properly perceived—so excellent was his wit and judgment—by Alexander of Aphrodisium, ὁ ἐξηγητής, “τῆς Interpreter," and I will here add a few words taken from his De anima, bk. 2, although the whole is well worth reading: “ If we be by nature social and given to make common cause with one another, yet it is impos- sible for a society to continue without Justice, Law, too, must be by Nature. And they who, because Law differs from one people to another, deny that it is by Nature, impliedly admit that that is by Nature which is the same among all peoples." Seneca confirms this (Epistle 48) : “ΝΟ one can live a happy life who regards himself alone and twists everything to suit his own advantage; you must live for others if you want to live for yourself. This Society must be scrupulously and reverently respected, which merges each one of us in the whole and shows that there is a law common to the human race."
XXIV. Clear as this truth is, there are many who surround it with clouds to the darkening of its light. Carneades would measure all Law by the standard of Utility alone, but has already been refuted by Lac- tantius and Grotius. [{ is, indeed, true that Natural Law is of extreme utility in uniting societies and holding them together and preserving them. If, however, you made the false assumption that man is not by nature social, and does not found societies by means of arbitrary conven- tion one with another, yet the Law of Nature would adapt itself to Man's Rational Nature because of that Probity which is one of his dis- tinguishing characteristics, and would compel him to pursue this Probity and to avoid its opposite. This is what Aristotle means by the passage (Rhetoric i, 13) where he says, ‘“‘ There is by Nature, as all agree, a universal Just and Unjust, even apart from any social union or agree- ment between man and man." Sharrock, too, has a good remark on this matter (De officiis, ch. 2, n. 10): “It is very true that these precon- ceptions exercise great force in the preservation of societies, and that accordingly great gain comes to men from them; but Utility has fol- lowed on Probity, itself a gift of Nature, and not Probity on Utility."
XXV. There are others who have been driven by the force of truth to an opinion concerning man which accords with the fact, namely that he is by nature a rational and social animal; yet they seek to weaken it by the sophistry that man is not a social animal actually, but only in aptitude. It is admitted that potentialities must in Nature precede activities, but let man freely produce such activities as can issue from his natural potentialities. Since man, then, has received from Nature the inclination to Society, he is also led by his appetite into social acts. Were he to do otherwise he would quit his human nature, says Aristotle
τό Rachel, on the Law of Nature and of Nations.
(Politics i, 2, towards the end), and pass into either a god or a beast. Now man is born a baby, and the use of Reason develops gradually, and he does not attain to it all at once; yet he is from the beginning fitted by nature for Society, and in such sort that he will soon actively seek Society and enter into it, and by social acts bind others to himself and himself to others. And God has so deeply rooted this instinct in the mind of man that none but a monster would desire to resist this Divine ordering and appointment, since we perceive that it is not im- pressed upon certain individuals merely but is an attribute of human nature as a whole.
XXVI. Now since Nature does nothing purposelessly and abhors a movement towards indefinite ends, it needs must be that human appetite should find repose in some definite good of which that same Nature is the originator, and which can be no other than the natural ends of each Natural Society. Accordingly, man being driven by Nature to seek Society, he seeks with special keenness the ends of Society, and, Natural Societies being some more perfect than others, and their ends being sub- ordinated to one ultimate end, he seeks with especial keenness that end and supreme good of the most perfect Natural Society, namely, εὐπραξία (Right Conduct) and the performance of what is naturally right. The social appetite of man, accordingly, is not satisfied by the chance attain- ment of any social life whatever, but only of such as God has fixed for the social and rational life of man, and as Reason herself marks out for him. Granted, then, that he seeks Society, for one thing, because of his dislike of solitude and, for another, because of his fear of danger and hurt, yet it can easily be inferred from what has been said that a much nobler end still is presented to his nobler side.
XXVII. But some will object that this means that the Law of Nature takes its rise in the mere inclinations of human appetite. I hold, however, in the light of what I have already advanced, that this conclu- sion is a clumsy one: for the end to which human appetite is driven by the promptings of nature has been fixed by Divine Providence and not at the choice of man; and as it consists in such zpdés, Conduct, as is con- sistent with human nature and this end, and as it is attained by corre- spondent actions, which conform to all these rules of Natural Law, it is abundantly certain that these last-named are sanctioned by God and that they have been promulged for the use of uncorrupted Reason at the instance of Him from Whom comes the gift of Reason.
XXVIII. Grotius, accordingly, seems to receive a punishment which he does not deserve, when Robert Sharrock and others take excep- tion to that saying of his, somewhat inaccurate as it may be, that the care of Society is the source of Natural Law. Let his words, if they seem of so much importance, be read (De officiis, ch. 2, n. 10). You will no- where find that Grotius treats the quest and care of Society as the only
On the Law of Nature. I7
sources of Natural Law—by this little word Sharrock perverts Grotius' teaching, and Osiander seems to have followed him blindly, saying (Observations 4, on Grotius’ Annotations to his Prolegomena), “ It is not quite accurate to say that the care of Society is the source of Natural Law, especially if you give these words an exclusive meaning." Now the qualification which, as I insisted in section XX, above, must also be taken into account wherever needed, Grotius did not mean to be left out of account, as is clear to every one from the context of his words. And their assertion that the care of Society applies alike to a good and to a bad Society rests on a false assumption, for Grotius, by his remark that the Laws of Nature are indicated by the rational and social nature of man, did not of course refer to such a society as, say, thieves may form with one another, but utterly excluded it as incompatible with the rational nature of man himself. Nay, if we are going to be accurate in our philosophizing, a concourse, crowd, and mass of ill fellows of that kind do not deserve to be called a Society at all, as we shall show later. When, then, Osiander proposes to amend Grotius by saying that the source of Natural Law is God Himself, he has, not only the assent, but also the prior pronouncement to that effect, of Grotius himself ; for here are his words (Prolegomena) : ‘‘ Although Natural Law, or the social law in question, flows from principles internal to man, it can yet be properly ascribed to God." And shortly afterwards (De jure belli ac pacis, bk. 1, ch. 1, n. 10) he refers Natural Law to God, the author of Nature; and, in his Annotations to the passage just quoted from the Prolegomena, he confirms this by the testimony of Chrysostom and Chrysippus.
XXIX. Some employ the following argument to controvert the existence of Natural Law, namely, that man has been made a social animal by God, but with conditions of free-will, and that the Law thence derived is, therefore, voluntary. For that which is by nature just must of course have been such antecedently to the will of any freely acting law- giver, so that he can only will and require that which is already by nature just, and not anything which by the free determination of his will has for the first time become just. If, then, I grant that man might have been created a rational animal and yet at the same time in conditions of freedom and without social appetite, it does not, however, follow that after God has seen good actually to create man no less social than rational, the Natural and Social Law is voluntary. For the existence of this Law is not solely dependent on the social nature of man, even though it may be more clearly observed and surely proved from that standpoint. Its author, indeed, is God; now, although on our hypothesis He had created man under free conditions a social animal, yet at the time when He created him rational and communicated to him a particle of Divine breath, the Natural Laws, like rays emitted from the essential Justice of
18 Rachel, on the Law of Nature and of Nations.
God, were in themselves ever and from eternity just, and as they are in the highest degree suited alike to the rational and the social nature of man, and as God has actually created man social, it was not possible for man not to be bound to the performance of those social acts which were due by the Law of Nature. A similar argument for rejecting a Law of Nature was used by Joannes Szydlovius, of the Reformed Church, with whom Osiander (Typus legis nature, th. 21, onwards) has a lengthy discussion; nay, that doctrine, from which none but most absurd and detestable opinions flow, deeply displeased even his brethren Rivet, Voet, Maresius, and Amyraldus. Let us hear a brief discussion by Amyraldus on this matter, taken from the preface of his Specimen animadversionum in Frid. Spanhemii Emendationes de gratia universali, p. 95:
* Some theologians have held, and not the least renowned ones, that Vice and Virtue do not differ in their nature, and that whatever distinc- tion can be drawn between them comes altogether from the entirely free will of God. This is both false in itself and instinctively abhorrent to the human mind. But over and above its fearful character, it has as a necessary consequence—who can help seeing it ?—that God was free not only to lay down for us no laws about Virtue and Vice, without the restraint of which our minds and appetites would have roamed at large, but also to enjoin on us an unrestrained indulgence of our affections. Now had He done this, would that which we to-day call Virtue have been a pious and sacred thing? Nay, horrible to contemplate, God might, according to this egregious doctrine, forsooth, have required man to pursue His Divine self with bitterest hate! That dogma, indeed, does not merely throw on religion a stain, but is the very destruction of religion and a broad road leading to the utterest and most hopeless impiety.”
XXX. I have said that the Law of Nature is adapted to rational and social human nature; I now add that it is also consistent with the Divine nature. For because man was made in God’s image, which, on the interpretation of the Apostle, consists in Justice and Holiness, God has decreed from eternity that man should imitate in his conduct the Divine justice and goodness. Now inasmuch as Divine Providence directs each and every thing [to an end *] which is agreeable not only to the thing itself, but also to the Divine goodness and glory, there was from eternity a certain rule shaped in the Divine mind which all things, and man most of all, should follow and submit to, and in accordance wherewith Providence would order the care of the universe and espe- cially of human actions. That rule is commonly styled the Eternal Law of God. For the mind of God conceives naught save from eternity, see- ing that if God were to conceive anything novel, or unusual, or in time,
* Some such words as ad finem have been in error omitted from the original text—Trans.
On the Law of Nature. 19
His knowledge would be changeable, Whose discernment nevertheless penetrates everything to the innermost.
XXXI. Just as that Law of God is lauded as eternal, so it is also immutable: for God, by reason of the infallibility of His knowledge, persists ever in the same will, nor can His decrees be varied by any one when sanctioned as a perpetual rule and order; and so, had not that primitive image of God been obscured in man by sin, he would every- where, according to the Eternal Law of God, have yielded obedience and satisfaction to the Divine will. I believe that this Eternal Law of God is what Plato means by αὐτοδικαιοσύνη, which he held to prevail among the gods; and kindred views seem to have been held by his disciple Aristotle (Nic. Eth. v, 7, § 6). Cicero deals more plainly with the same topic and deserves a hearing. ''I see," says he (De legibus, bk. 2), * that it was the opinion of the wisest men that Law was not the inven- tion of human wits, nor anything in the shape of a popular decree, but an eternal something ruling the universal world with a wisdom which displayed itself in commands and prohibitions; and, accordingly, they held that that Law, alike in its primary and in its ultimate parts, was the mind of God, Who compels or forbids everything consistently with Reason, which is the source of the Law given by the gods to the human race." And, a little later on, the same writer says, ‘‘ Eternal Law took its origin in the Divine mind; wherefore Law of the true and prime variety, fitly directed to the issuing of commands and prohibitions, is the Right Reason of most high Jove." He also says, * Law, in the highest sense, is the Divine mind.” And in his De finibus there is this passage to the same effect: '' Law, truly and in the highest sense so called, is said by the philosophers to be Reason appropriate to the nature of God.” St. Augustine, in his book De catechizandis rudibus (ch. 18), says that the Eternal Law of God is unfolded by means of those “΄ most harmonious laws of a marvelous disposition whereby God has it in mind to rule His creatures." And in his book De libero arbitrio (bk. 1, ch. 5), he uses the following descriptive phrase: ‘‘ Eternal Law and Reason residing in the mind of God, whereby all things are by the appro- priate means directed to their respective ends.”
XXXII. Between Divine Providence and Eternal Law there is, accordingly, a very close relationship. The former directs each and every thing to the end which is agreeable to its nature, whatever that may be, and also to the Divine goodness, and takes a special charge thereof; the latter constrains these same things by a compulsory obliga- tion each to its own end. Yet men, being endowed with intelligence, are bound in a different way from that in which those things are bound which are created void of reason, the latter being brought to compliance by a natural necessary inclination, while man's compliance is conjoined with freedom. Although, therefore, everything, save God, is subject
20 Rachel, on the Law of Nature and of Nations.
to this Eternal Law, yet it has not the essential quality of a precept except in respect of free and rational agents. The rays, accordingly, of this Eternal Law are those Natural Laws which Reason, that particle of the Divine breath, indicates to us and urges upon us and promulges; and hence it is that what the Law of Nature enjoins or forbids is not, respectively, good or bad merely because God has of His free will de- cided to enjoin the one or forbid the other; but, because the former is in its essence wholly good and the latter wholly bad, God could not but for- bid this and enjoin that. So that in this way you can understand also how this Divine Law of the Natural kind differs from Divine Law of the Arbitrary kind. (Grotius, De jure belli ac pacis, bk. 1, ch. 1, nn. 10, 15; Guil. Grotius, De principiis juris naturalis, ch. 3, n. 2.)
XXXIII. Logical arrangement seems to require that a definition of Natural Law be now given, very various definitions having come down to us, as given by various persons. Among these not the lowest place must be assigned to that of Grotius, to be found in his book De jure belli ac pacis (bk. 1, ch. 1, n. 10), namely, ‘‘ Natural Law is a dictate of Right Reason indicating that there is in any given act, according as it is in agreement or disagreement with rational Nature itself, a moral necessity or a moral baseness, and consequently that such act is enjoined or forbidden by God, the author of Nature.” The points in which this description may be found lacking will be pointed out elsewhere; mean- while I will use the opportunity to give the following description accord- ing to my own views. The Law of Nature is a law moving from Divine Providence in harmony with the idea of Eternal Law, and adapted to the rational and social nature of man, which, being promulgated in man’s mind by means of Right Reason, binds him to conform his conduct to the standard of this Law and so to attain happiness. Various other defini- tions, propounded by other persons, lie scattered about, some of which, such as those of Gregory de Valentia, Tanner, Martin Bonacina, Robert Sanderson, and others, are set out and examined by Osiander in his Typus legis nature (th. 42, onwards).
XXXIV. I will give fuller elucidations of the individual parts of this definition, so that the nature and properties of this Law may appear more exactly, and that a judgment may be formed whether my definition is put together according to logical rules. From the outset let me say that I do not recognize any distinction between Law of Nature and Natural Law, and that I do not agree with Mevius when he refers the former to the Eternal Law of God and the latter to man (Prodromum, insp. 2, n. 5). Now as regards my definition: all Law being correctly divided into Natural and Positive (Legitimum), I have made a proximate genus of Natural Law, because it is a variety of Law, or one of the species of Law if Law be taken as a genus, and also is properly styled Law in that it obliges. The division of Natural Law into Obligatory and Permissive
On the Law of Nature. 21
must, accordingly, be rejected; and I am surprised that, among others, even Selden has adopted this division (De jure nature et gentium juxta disciplinam Hebreorum, bk. 1). For obligation is, on Selden's own showing, the head and soul of Law properly so called, and those things which have not been placed under the rule of Natural Law, but have been left, as matters indifferent, to the discretion of man, are exempt by this Law from the constraint of obligation; and so they ought not to be labelled with the name of Law at all. Guil. Grotius agrees with me herein (De principiis juris naturalis, ch. 2, n. 10; and ch. 3, n. 3).
XXXV. You may reply that the division in question is supported by a greater authority still, that of Modestinus, who says (Dig. 1,3, 7) : “ΤῈ is the virtue of Law to command, to forbid, to permit, and to pun- ish." Nay, if our philosophy be real, and not sham, we can not admit this at all nor satisfactorily defend it; for I think that a passably good rendering of the virtue of Statute or Law (Lex aut Jus) is the power and authority to oblige, displayed either in express commands or in prohibitions, and punishment serves as a subsidiary defense and weapon to laws of both kinds, commands and prohibitions alike, so that, while Statute or Law primarily obliges to do or abstain from doing, it secondarily obliges the disobedient with punishment.
XXXVI. Further, on a correct estimate of the matter, Permission will not be found part of the virtue of Law or Statute. For, in the first place, we must insist that the permitted be carefully distinguished from the commanded and the forbidden: some matters there are, relating to human conduct, which no law either imperative or prohibitive has deter- mined; and accordingly, as human freedom is not restricted in regard of them, they are commonly styled '' allowed " and “ permitted," and in Greek ἀδιάφορα (** indifferent "). About the ambiguity of the word “allowed” (Jicitum) or “to allow” (licere) see Guil. Grotius, De principiis juris naturalis, ch. 2, n. 9. It is clear to every one that, as things of this kind are not “ permitted ” by force of any legal sanction, the correlative '* permission " can not be a virtue of Law; and so Mevius (Prodromum, insp. 2, n. 7) is right in reminding us that there is a world of difference between Natural Law and Natural Liberty. In some cases τὸ permissum, the permitted, is contrasted only with the forbidden: thus, for example, the Divine Law (Leviticus, ch. 18, v. 18) forbids a man to take to wife the sister of his wife in the latter's lifetime; and from this Sanchez and others deduce the permissibility, by Divine Law, of marry- ing the sister after the wife's death. But so far as regards the virtue of Statute and Law, the character of the Permission, so derived by inference from its opposite, is consistent with the foregoing; for, although I may be able clearly to perceive from that prohibitory enactment what the Lawgiver's intent is, namely, that He means to place marriage with a deceased wife's sister among things permitted, still this does not come
22 Rachel, on the Law of Nature and of Nations.
from the virtue of Law as if there were a law in any way obliging to such marriage, but without any legal determination the matter is in such a case as this left to human discretion, unless it chance that some super- vening law of the arbitrary type relating to such a marriage has curtailed natural freedom of action. Least of all is the virtue of Law to be credited with the things commonly called Permitted or Allowed because, although essentially unlawful (injusta), they happen to go unpunished in human courts. With this, to a certain extent, compare the well-known maxim, “ Not everything that is permitted is right ” (Dig. 50, 17, 144), If, however, some statute were to sanction what is in this way permitted, so that a right freely to act in that way was thereby created and one so acting could not be prevented without wrong—as, for example, if a lawgiver were to enact that the hunting of wolves was to be free and open to every subject—that permission would undoubtedly spring from the virtue of the law, for a statute of that kind creates an obligation that nobody shall interfere in that matter with him who proposes to devote himself to the pursuit in question, and accordingly that statute is framed (so to speak) prohibitively, as regards everything which it intends to place among the things so allowed and permitted as that no one can lawfully be hindered in doing them. Some strive to extricate themselves from this position by drawing a distinction between Permis- sion in point of fact and Permission in point of Law. They say that God permits many sins—a case of permission in point of fact—by not pre- venting their commission, while permission in point of Law involves the negation both of prohibition and of command. Then they further con- sider permission in point of Law under a double aspect, as may be seen in Osiander (Observations on Grotius’ Annotations to his De jure belli ac pacis, bk. 1, obs. 3, th. 9). Of course, in matters also which are simply indifferent and not the subject of legal determinations, one person can not interfere with another without wrong-doing; here, however, the legal sanction is not of a special kind, but an offense is committed against the Law of Liberty which prevails generally.
XXXVII. It may, too, be possibly the case that there is some dis- tinction between, on the one hand, To be permitted or allowed, To permit or suffer a thing to be among things permitted or allowed, and, on the other hand, expressly To order that a thing be permitted. The former is not properly within the scope of legislation and law, because there is no sort of correlation between (1) Obliging and (2) Suffering to be among things permitted; but it is within the competence of legislation to bring a thing within the permitted by means of a command, because legislation is then dealing with things permitted as a separate whole in regard of which a definite body of law is laid down. "Things permitted in this way are an external object of legislation in such fashion that the permis- sion involved in this sort of law contains an obligation and forbids the
On the Law of Nature. 23
use of force towards, or the creation of hindrances in the way of, one who proposes to do that which the law has permitted, that is, has decided not to be unlawful. This is what Grotius propounded in the following short passage: '' Permission is not properly an activity of the Law, but is the negation of activity except so far as other persons are put under an obligation not to let or hinder him who has received the permission ” (De jure belli ac pacis, bk. 1, ch. 1, $8 9). Accordingly, it is not correct to employ, in cases where a permission coupled with a legal sanction is given, the appellation Permissive Law in contradistinction to Obligatory Law, because, as I have just shown, an obligation is implicit in that legal sanction. For if it is your pleasure either to admit this variety of classi- fication or to follow Modestinus, you will have to put not only Permis- sive Law in a separate class but Imperative Law also, and Prohibitory Law and Punitive Law, an inelegance which can not commend itself to the advocates of ἀκρίβεια, precision. (See also Becler on Grotius, bk. 1, ch. 2, § 9.) Guil. Grotius (De principiis juris naturalis, ch. 1, n. IO) refines so nicely as to say that there is more in To grant (Con- cedere) than in To permit (Permittere), and on this ground he divides the Law of Nature into Preceptive and Concessive (ch. 7, n. 1). XXXVIII. Nor can I countenance the classification of Natural Law into Primitive and Secondary, not only because it has been resorted to in defense of that error which led Ulpian to admit brute animals to a share in Natural Law, but also because it is void of all solid reason. Further, since, in my Prolegomena (ὃ 9) to Cicero's Offices and else- where, I have pointed out why this classification is inadmissible, and since our own definition given above shows that the obligation of Natural Law extends to man only, no higher value is to be put on that other classi- fication of Natural Law into Animal and Rational, seeing also that Hugo de Roy started that falsity for the purpose of correcting an old blunder (De eo quod justum est, bk. 1, tit. 2; Mevius Prodromum, insp. 2,n. 3). For, inasmuch as I have shown beyond challenge ( Disputatio de jure in genere) that brute animals are incapable of Law properly so called, it follows that no obligation of Natural Law and no share in it can possibly be extended to them. (See also Salmasius, De usuris, ch. 9.) XXXIX. Now, please, let us see what case Hugo de Roy makes against this in his little book, De eo quod justum est. “ To start with," says he, ** some one objects, ‘ It does not deserve the name of Law, be- cause it is void of reason.’ Granted, for that is quite true. But no argu- ment can be based thereon against our (“ Animal, animale") branch of Natural Law; for that is not void of reason, not even on its own merits, because none of God's handiwork is done without reason." He grants the truth and in the same breath contradicts it. For who can ever doubt that all things have been created by God with the utmost wisdom and consummate reason, inanimate things no less than animate? but that
24 Rachel, on the Law of Nature and of Nations.
they thereby become indiscriminately sharers in reason and in Law, which is indissolubly associated therewith, is absurd. Perceiving this, our author continues as follows: '' Perchance some one will contend that what we have said about reason in Law is not satisfactory and will call in addition for reason in those for whom Law is instituted. But that contention is inadmissible within the bounds of any Law, not to say Natural Law, because one does not look for human reason in the animals in which that Law is instituted and implanted, but only for a capacity to receive the notions or aforementioned principles of Law and a corre- sponding degree of perfection such as is found and perceived alike in brutes and in rational beings." He says that the natural principles in question can be referred to a single ultimate head, “ΤῸ love themselves and their own things," this containing within itself all the rest: such as, to defend life, to protect the body, to desire the procreative union of male and female, to take care of offspring, to follow the good and avoid the bad, to choose what will profit and refuse what will hurt. Aye, but the contention in question is most sound and it is quite false that there is no Law the subject-matter of which requires a share in reason. For Law, properly so called, curtails or determines in a definite manner freedom of action; but freedom of action necessarily implies reason, and as brutes are not endowed with this they also lack capacity for any Law whatever, and especially for Natural Law. And although some brutes seem to act like men, yet what they do is not done with reason or of free choice, even if it be done ἀχαλίνως, without a bridle, but of mere natural inclination and of necessity. Hence it comes that brutes resort to all modes of defense, without any law or breach of law (Dig. 9, 1, 1, 3) ; but man's modes of defense are lawful or unlawful, or partly one and partly the other. Brutes copulate in order to procreate, but it is without honor or the vice of adultery, or dishonor or incest; but man is bound by Natural Law to perform these and similar acts conformably to the rules prescribed by the lawgiver. If, then, any one denies human reason to the brutes, he must also deny them all human Law; but the highest type of human Law is the Natural, adapted, as it is, by God's consummate wisdom to the rational nature of man alone. If, however, you propose, like Hugo de Roy, to give the name of Reason to the inclination of the brutes towards the acts just specified, and to hold them capable of Law by reason of that inclination, you are making a play on words and misusing the names both of Reason and of Law, inasmuch as all who discuss these philosophic questions ought from the outset to be minded to pursue the essential qualities of things and words, and not the analogies, some of them very remote, of Reason and Law. There is, therefore, more correctness in the explanation of these matters given by Ritterhusius when writing on Oppian's Cynegetus, p. 28. His words are: ** The jurisconsults defined Law in the manner indicated, not because they were so foolish as not to
On the Law of Nature. 25
know that Law could not truly and properly be held to exist where reason was not, but because they wanted to show that there is no surer proof that a given matter is part of Natural Law than the fact that men do it under the guidance of reason and brutes do the same thing by instinct and inclination and the impulse of nature." A similar interpretation is given by Gerhard Johann Voss (De origine et progressu idolatria, ch. 61). Mevius (Prodromum, insp. 2, p. 57) makes the frank admission: “Those of the older jurists who attributed Law to animals either were led into error by zeal for their school or else improperly described what they beheld in animals, namely the raw material, or image, or shadow, of Law.”
XL. Hugo says that, alike in brutes and in man, that perfection is seen which is appropriate to them; and this is true: but perfection in man is not the same as in the numerous kinds of brutes; and it does not follow that if beasts, each after its kind, have received perfection from Divine Providence, they are therefore as capable of Natural Law as men are. Nor, because brutes are observed to love and defend themselves and their own, and so forth, by instinct of nature, are the following remarks of Hugo true without qualification: *' These things are by nature just; they are good and right for all animals " ; and a little later: '* Of a truth it must not be asked of Natural Law or of any existing Law at all, whether its operation is dependent on natural inclination or on human reason; but what is to be looked at is, whether it is good and just in itself. For what Nature has taught all animals can be taken to mean in the special case of man an operation by means of reason, but in the case of other animals an operation by means of natural inclination; yet all the same, each of these tends towards the same end of Nature and the same goal of Natural Justice." Every one can see that all this depends on a wrong assumption. True, each and every thing has been created by Divine Providence for an end appropriate to itself and has been equipped with the internal impulses necessary to attain this end; and if even brutes attain their end, this is their Good, the End and the Good being materi- ally the same thing (Nic. Eth. i, 1). And although a certain kind of Justice, also customarily styled Equity, comes to us under the name of the Equitable Good, it is nevertheless ridiculous to propose to confuse this Equitable Good with the final good of brutes and to claim on that ground a share in Law and Equity even for brutes. But much the falsest position is this, that, for the purpose of distinguishing the Law of Nature, or indeed any other variety of Law, and of distributing matters between them, it makes no difference whether the matter in question is done in virtue of natural inclination or in virtue of reason. And although some of the acts of brutes and of men seem to be directed to the same end, yet that end is not in an unqualified manner the same or attained by both in the same fashion; for men strive towards the end
26 Rachel, on the Law of Nature and of Nations.
which Nature has set before them in a lawful fashion, and the end is a lawful one, while in the case of the brutes neither the fashion nor the end is assigned to them by Nature under the guise of Law properly so called.
XLI. What need of more? Our author is making a play on ambig- uous words and phrases. For when he attributes a share in Law to brutes, he does not mean Law properly so called, such as we have and ought to have in view; and over and above this he is continually con- founding Natural Law with the Eternal Law of God, which even brutes in their fashion attain to. Accordingly he asserts that traces of obliga- tion and of Law are discernible in brutes, though jurists have been reluctant to admit that brutes can act in a lawful way or in breach of Law, in the proper sense of these terms; that while other animals, void of reason, are constant in their duty, man, the animal endowed with reason, deviates from his duty and commits daily faults; that he does not merely believe, but knows of a certainty, that in addition to the com- mon endowments of a common nature man is into the bargain endowed with the noblest principles of Right Reason, together with his rational soul; that Natural Law is in a noble fashion an endowment of man; and that, in dealing with the Law of Nature, he (the author in question) does not mean that law which is a matter of morals, and is a gift be- stowed on the human mind also, as such, for the purpose of discerning good from evil and of distinguishing between the equitable and the inequitable, the just and the unjust, the honorable and the base. If, then, on Hugo’s own confession, the brutes are not capable of Law properly so called, and if the Eternal Law of God obliges, in strictness, those only who have the use of reason and are free agents, while it directs the brutes to their several ends in a very different fashion—why on earth does he wrangle?
XLII. Fortunius Garcias, the Spanish jurisconsult, distributed Natural Law into the Governed (Gubernatum) and the Governing (Gubernans), the former of which he attributed to the brutes and the latter to men. He assigns as the reason of the former position that the control exercised by Natural Law is not to be attributed to the brutes, but to God Who governs all, and he assigns as the reason of the latter position that man is possessed of reason and it is under its guidance that he does all the things which are considered to belong to Natural Law. This distinction pleases Hugo de Roy more than all the others, but he finds ground for taking exception to it in the fact that, although all things obey Reason and consequently those things, too, which belong to Natural Law, yet God, Who governs all, controls that same Reason no less than the natural instincts of the brutes. This criticism is sound and destroys the distinction itself ; for, if all things be entirely and in a para- mount fashion shaped at the pleasure of God, Who assigns to the whole its bounds, then Reason will likewise be within the sovereignty of Divine
On the Law of Nature. 27
Providence and all Natural Law will so far be * Governed” (Guber- natum). Although even the brutes have received their natural pro- pensities at the hands of God, and Divine Providence maintains them in the case of each and directs them to their appropriate ends, yet the activities of the brutes aroused or consummated by this instinct are not to be styled Lawful (juste) except by a play on words; nay, they are not capable of Natural Law, or of any other Law properly so called, even though the impulses, propensities, and activities in question are in har- mony with the Eternal Law of God. Why, many folks seem to think that one error must be covered up with another, lest it let the rain through! If they would employ the same amount of zeal in the search for truth as they do in busying themselves with the defense of deep-rooted error, their teachings would be far more correct.
XLIII. As to the Reductive (reductivum) or Negative variety of Natural Law (often contrasted by some with the Positive variety), see Guil. Grotius (De principiis juris naturalis, ch. 2, nn. 1, 4, 5, 6), as also for the doctrine that some of the dispositions of the Law of Nature are Directive, others Coercive, and for the doctrine that one variety of the Law of Nature exists ἁπλῶς, Simply, and another Conditionally or dependent on some assumption. And for that other distinction, according to which the Law of Nature either illumines the intellect or obliges the conscience, see the same writer (ch. 4, n. 1). And the doctrine that some things belong to the Law of Nature positively, others privatively, is to be found in Mevius, Prodromum, insp. 2, n. 6, where he asserts that this distinction is commonly received.
XLIV. After the discussion of all these, there remains that true and noteworthy classification of Natural Law into General and Special. Each of these binds none but men, as is clear from what has gone before; but there is this difference, that the former binds all men, simply as men, no matter in what Society they may be living; while the latter does not in an absolute manner bind all men who are included within universal human Society, but all those who are within some special Natural Society and who are mutually bound one to another, in modes varying with the diverse nature of such Societies, by reason of the special necessities of the case or because of regard had to the peculiar duties of the Natural Law. Such Societies are especially the Conjugal, the Paternal and that of Master and Servant, and the Civil Society which springs from these; of these I will say more in the sequel.
XLV. I have admitted that all the Law of Nature is received from Divine Providence, and its bindingness must also arise from the same source, so that any who deem the appetite for Society and the preserva- tion of Society to be the sole source of Natural Law will be wrong. For if the obligation of every law derives its authority in paramount fashion from God, Natural Law receives its authority in the highest possible
28 Rachel, on the Law of Nature and of Nations.
degree from that same source, as I have shown at some length in my Prolegomena to Cicero’s Offices and in my Disputatio de jure, th. 11. But because man not only is driven to the creation of Society by various external causes, but his desire for Natural Societies is especially due to an implanted appetite—and in point of fact, Nature has bestowed this craving upon man just in order that he might be aware that those Societies of his are clearly appropriate to his nature and that he might find repose by obtaining happiness and completeness within their bounds —=man has at the same time equipped those Societies with a definite Law and Order, which exactly correspond to his rational nature, with the intent to live in them among his kind honorably and happily and with all possible pleasure. I am, accordingly, not content with the genealogy of these matters which Sharrock draws up, namely, ‘‘ Want, the great- grandparent, begat Fear; Fear, the grandparent, begat Society; Society and the care thereof begat precepts of duty, and in so doing quitted herself well as mother to Natural Law " (De officiis, ch. 2, n. 10). Forit was God Who created man a Rational and naturally Social animal; and it was He Who formed Natural Societies, and that for the Good of man; and, in order that this Good might be really such, and not be commendable from the standpoint of objective utility alone but be complete and lasting, He willed that man should join himself to his fellows in Societies by a definite Law and all be mutually bound to one another.
XLVI. It can be gathered from the foregoing how great is the obligation of Natural Law and how high its authority; for Aristotle, in a passage above quoted, declared that it possesses everywhere the same force, just as fire burns alike among Greeks and among Persians and in any other part of the earth. Hence he and other Greeks called this Law κοινὸς νόμος OF TO κοινὸν δίκαιον, Common Law (communis lex, commune jus) ; to Cicero and Apuleius it is the Common Law of humanity; to Seneca, the Common Law of the human race; to Cornelius Nepos, the Common Law of the world (commune jus gentium) ; to Demosthenes and Isocrates and Quintilian, the Common Law of all. To this topic belongs the passage in Rhetoric i, 13, pr., ἔστι ὃ pavrevovrai τι πάντες φύσει κοινὸν δίκαιον καὶ ᾿ἄδικον, κἂν μηδεμία κοινωνία πρὸς ἀλλήλους ἢ, μηδὲ συνθήκη, “There is something which all acknowledge to be by nature univer- sally just and unjust, even though no societies and no pacts have been entered into one with another.” For, inasmuch as the various depart- ments of this Law are impressions of Divine Justice itself, and Divine Providence has cast upon human appetite, which possesses freedom, an obligation in the interests and for the good of man himself— in such sort that by following this rule he may attain true and solid happi- ness—and has created all these things in the shape most appropriate to the rational and social nature of man, Reason itself feeling and recogniz-
On the Law of Nature. 29
ing and understanding the manner of their promulgation, how that little by little and one after another the impulses of the intelligence gather strength, it is a proper conclusion that these laws, simply in virtue of their quality, bind all men without exception.
XLVII. Accordingly Justinian, following others, has very truly remarked (Just. i, 2, § 11) that the Laws of Nature are not only observed among all peoples alike but are by Divine appointment “ ever firm and immutable.” Aristotle, too, saw the same thing but could not properly appreciate the reason because of a certain inconsistency of his in matters touching Divine Providence. The passage which he borrows from Sophocles is very remarkable and harmonizes with the quotation given in my immediately preceding paragraph: οὐ γάρ τι viv τε κἀχθές, ἀλλ᾽ ἀεί ποτε ζῇ τοῦτο, κοὐδεὶς οἶδεν ἐξ ὅτου φανείη, js Forett 15. not something of now and to-day, but ever has been and none knows whence it came " (Rhetorici,c. 13). What profit, then, was there in all your knowledge, my Philosopher, great and marvelous as it was, if you were as much in the dark on this matter as Sophocles was? Τῆς Eternal Law of God was from eternity in the mind of God, but its preéminent part, Natural Law, began to be declared and promulged with the appearance of the race of man; and the obligation thereof, which began to take effect at the same time, will last as long as the human race itself. Aristotle was apparently ignorant of this, yet reckoned himself to have grasped aright that “Τῆς ordered universe is from everlasting."
XLVIII. Nor does Marcus Antonius Majoragius deserve atten- tion when writing, in his comment on the aforementioned passage from the Rhetoric, that in his opinion our Philosopher did not mean by δίκαιον τὸ κοινόν (Common Law) to refer to the Law of Nature alone, but also to the Law of Nations; his reasoning in support of that position is weak and can easily be refuted by a careful collation of Aristotle’s text. This Law, then, is so firm and immutable that even God has no wish and no power to change it: no wish, because Providence has determined to rule Its Natural Societies by this constant Order; and no power, because it is entirely congruent with the Justice of God that human actions should take their course in Societies in accordance with this Law and Order, in such sort that if a withdrawal from that Law took place there would inevitably be a violation of Divine Justice—now Divine Justice is of God's essence, and God will not go counter to Himself. Much less, there- fore, can man, whoever he may be, whether governor or governed, change aught herein; nay, not even the whole human race can change an iota, not even if gigantic Impudence were madly to conspire against God. Cicero (in Lactantius, bk. 6, ch. 8) says admirably on this topic: ‘‘ This Law "—41it is Natural Law that he is speaking of—“ can not be set aside without sin; nor may it be derogated from in any particular; nor can it be wholly set aside; nor can we be freed from its control, either by Senate
4
20 Rachel, on the Law of Nature and of Nations.
or by People; nor are we to seek any to make it clear or any other inter- preter; nor will it take one shape at Rome and another at Athens, or one shape now and another hereafter. But one Law, eternal and immortal, shall bind all peoples at every point of time; and there shall be in com- mon one master, as it were, and lord of all, God, the framer of this Law, Who also pronounces on it and puts it into force. And whoso does not yield to it obedience will be trying to escape from himself and con- temning the nature of man, and in that very fact will be undergoing the severest penalties, even if the other punishments which are ordained pass him over." Here, of a truth, is something worth its weight in gold and worthy of attentive consideration, for there is not an ineffective or exaggerated word in it.
XLIX. Osiander will have seen, then, what degree of truth and justification there is in the remark which he makes with such assurance, both in his Typus legis nature (th. 44, 45) and in his Observations on Grotius’ Annotations to De jure belli ac pacis (bk. 1, ch. 1, th. 10, obs. 5), namely, that the Law of Nature in the state of innocence is not the same as the Law of Nature in the fallen state. Herein, unless I err, he has come to grief through defining the Law of Nature as Habituation (habitum) and saying that it resides like something habitual (his own word) in the mind of man, the result being that he does not contemplate the Law of Nature in itself and in the abstract, nor the mind of man as it ought to be, but the latter in a corrupt state and the former (habit, forsooth!) contaminated and, so to say, submerged by a flood of vices. Nor can we follow Martin Schoock (De jure naturali, th. 56) in drawing a distinction between the Universal and the Particular precepts of Natural Law, the former being incapable but the latter capable of change; for it is impossible, says he, that the general principle, ‘‘ Good is to be done and Bad is to be shunned,” should be utterly blotted out of the mind of any man, even if some men or peoples hold that there is no disgrace in theft or adultery, and the like. Now we shall soon see what opinion is to be formed on these points. Gratian, too, is exceedingly ridiculous when, in Decretum, dist. 5, he proclaims the immutability of the Law of Nature, yet seems straightway to have changed his opinion— if indeed the words which we read there be really his, namely, ‘‘ While Natural Law is said to be contained in the Law and the Gospel, certain concessions are now found to be made which are contrary to what is laid down in the Law; so it does not seem that Natural Law can be allowed to be immutable. For in the Law it was laid down that a woman must not approach unto the temple for forty days after bearing a male child, and not for eighty days after bearing a female child, yet nowadays she is not prevented from entering a church immediately after childbirth." And he continues with other matter equally unsupported and unworthy of refutation.
On the Law of Nature. 21
L. Nor can any objection be based on acts done contrary to the Law of Nature, some examples of which I have set out above. For in such cases attention must be directed not to what is actually done but to what ought to be done, there being all the world of difference between Fact and Law. What Cicero says about Nature in his Tusculan Ques- tions is in point here, * Custom will never conquer Nature, for it remains ever unconquered." And a careful distinction must be drawn between that which, in the guise of Standard and Rule, is prescribed to Conduct and Conduct itself, which, when closely examined in that way, some- times conforms to the prescription and sometimes is very much at vari- ance with it. We have, accordingly, to distinguish very dissimilar things from one another, namely, Law itself and the observance or the neglect thereof. Inasmuch, then, as human Law is not changed merely by the contrary behavior of those who may happen to be subject to it, much less does the Law of Nature admit of change in that fashion, even if whole peoples, corrupted by bad custom, behave contrary thereto. This and the foregoing remarks may be illustrated by the inimitable discourse of Socrates on Natural Laws, given in Xenophon's Memorabilia, bk. 4:
“Ὁ But, Hippias, do you know any unwritten laws? '—' Those,’ said he, ‘ observed alike in every country.'—' Would you be able, then, to assert,’ said he, ‘ that men have enacted them? ’—‘ How can I?’ said the other, ‘ for they could never all come together and they do not all speak the same language.'—' Who, then,’ he asked, ‘ do you think made these arbitrary laws? '—' My opinion is,’ was the reply, ‘ that the gods made these laws for men, for among all men it is a fundamental law that the gods must be worshipped.'—* And is it not everywhere enjoined to honor our parents too? '——' Yes,’ said the other, ' it is.'—' And is it not also laid down that parents should not associate with children, nor children with parents? ’—‘ This, Socrates,’ said he, ‘ no longer seems to me to be a law of God.'—' Why? ' he asked.—‘ Because I see some,’ he said, ‘ who transgress it.'—' And yet,’ said he, ‘ they transgress many others; but then, they who transgress the laws framed by the gods pay a penalty which man can in no way escape, as do some who transgress the laws framed by men, either by lying hidden or by the exercise of vio- lence.’ —‘ I agree with you here too,’ said the other.—' Well now, is it not in harmony with the laws of the world at large to return good to those who do good to us? ’—‘ Yes,’ said he, ‘ but this, too, is trans- gressed.'—' Aye, and those who thus transgress pay a penalty.’ ”’
And the following passage in Magna moralia, bk. 1, ch. 34, is also noteworthy :
" Some of the things that are Just are so by Nature, others by Law. But in our consideration of the matter we must avoid the idea that it can never happen that those which are by nature do not admit of change. For take the case of throwing: imagine that we all always use the left
32 Rachel, on the Law of Nature and of Nations.
hand; well, we have the use of the left hand just as much as of the right hand, still it is the left by nature. Now the right hand is naturally stronger than the left, yet we are now doing all the work with the left, as if it were the right. Although this change can be effected, that does not mean that it is not by nature; and it is equally true that if things go on as much and as long as possible without change, with left left and right right, that too is by nature. So it is with the things that are by nature just: there may be a change in our use of them, but that does not mean that they are not just by nature; nay, the opposite is the case. For what continues in the highest degree unchanged is clearly just by nature, and what we have appointed and decided by law is just too, and comes to us as just in virtue of its legal origin. What is just by nature excels, then, what is just by law."
If this passage be Aristotle’s it deserves to be compared with what we read in Nic. Eth. v, 7, ὃ 5 and onwards, namely:
* What is by nature is immovable and unchangeable and has the same authority everywhere, just as fire burns both here and among the Persians. But people see the rules of justice continually altering. Yet this is not altogether true, although it is true to some extent. Among the gods, indeed, it is probably not the case at all; but however this may be, among us, although there is such a thing as Natural Justice, yet it varies, but not wholly. Notwithstanding this, however, there is a Justice which is natural, as well as a Justice which is not natural. Further, within the class of things which can happen in different ways and which admit of change, it is easy to see what and what kind of a thing it is that is by nature, and what kind it is that is not by nature but is by law and convention, even if both kinds be alike variable. The same distinction will apply to other matters also: thus, the right hand is by nature stronger than the left, and yet it may happen that some persons are able to use the left hand quite as well as the right.”
Thus Aristotle, whose views we have elsewhere set out more plainly.
LI. Let us then agree that, in Cicero’s language, as regards the Law of Nature there can not, either through contrary practices or by human sanctions, be “ Abrogare,’’ that is, the undoing and repeal of the whole extent of the Law’s obligation; nor “ Derogare," that is, the tak- ing away of some part of its obligation by a new law (Dig. 50, 16, 102) ; nor “ Obrogare,” that is, the introduction of a new law for the purpose, according to Festus, of annulling it, or, according to Ulpian (Jnst. 1, 1, 2), of effecting a change in it; nor “ Exrogare," that is, according to Festus, the taking of something away from it by a new law. But it is competent for man, within the limits of prudence or at any rate without rashness, “ Surrogare," that is, make an addition to Natural Law by legislation. This matter will be dealt with in detail later on. (See also
On the Law of Nature. 33
Barnabas Brisson, De formulis, and Geddzus on the aforementioned Dig. 50, 16, 102.)
LII. Some objector may set up against me the authority of the jurisconsult Ulpian, who (Dig. 1, 1, 6) says clearly that Civil Law of the arbitrary type can not only add to Natural Law but also subtract from it; and the objector may think to fortify his position by using as an illustration the treatment of nude pacts at the hands of Roman law- givers, who would not allow them to support an action and to that extent deprived them of their natural obligation. Now as regards the first of these points, it is notorious that those matters which pertain to natural liberty are ordinarily added by some to Natural Law, and, when these persons realized that the matters in question were not subsumable under the Law of Nature properly so called, the custom began of dividing the Law of Nature into Obligatory, or the Law of Nature properly so called, and Permissive, or the Law of Nature so called καταχρηστικῶς, by a misuse of language. When, then, the jurisconsult says that the Law of Nature can suffer subtraction at the hands of Arbitrary Law, this will be most aptly interpreted as referring to the Permissive portion of this Law; for example, by nature any one has license to hunt, but that license has been curtailed by positive Civil Law and human freedom to that extent much restricted. Again, the second of the two points just men- tioned presents no difficulty to us. For, although we can not go with Franciscus Connanus in his assertion that the natural obligation of pacts does not include rights of action, yet it does not follow thence that the obligation of Natural Law is destroyed by Arbitrary Law; for pacts individually considered, such as (say) Titius makes with Sempronius, form part not of Natural but of Arbitrary Law, even if their obligation be based on the general precept of Natural Law, namely, that good faith must be kept when pledged and embodied in a pact. This further obser- vation must be made, that pacts are laws made by private persons, and their contents can not derogate from public laws or the authority of the lawgiver. And it is, indeed, far from true that the whole obligatory force of pacts is annulled and destroyed even if the lawgiver does, by positive enactment, hinder and prohibit that natural obligation from having some given civil effect, such as the right to bring action on it in a Roman court; for natural obligations are not all of the same kind, and Roman Law has hitherto allowed to some of them many civil effects, even though taking from them all effectiveness to base an action in a Roman court. For example, what is due under a natural obligation can be set off (Dig. 16, 2, 6) ; can be the object of an agreement to pay (constitutum) (Dig. 13, 5, 1, 7), or of a novation (Dig. 46, 2, 1, at end) ; and if paid can not be recovered on the ground of payment in error (Dig. 44, 7, 10; and 12, 6, 19). Further, an obligation of this kind will support suretyship (Inst. 3, 20, 1) and pawn (Dig. 20, 1, 5).
24 Rachel, on the Law of Nature and of Nations.
Other natural obligations there are which clearly receive no positive aid from the Civil Law, such as that arising on the acceptance of a benefit and binding one to make ἀντίδωρα, return-gifts (Dig. 5, 3, 25, 11; and 47,2, 14, I1). And so Cicero, in his Pro Plancio, says “‘ a debt of grati- tude is one thing and a debt of money is another " ; and Seneca (De beneficiis, bk. 3) explains the matter as follows: '' To show one’s grati- tude is an honorable thing; but such a return ceases to be honorable when it is compulsory," that is, if it can be claimed by action. In the same way a promise made by one who has been interdicted from the management of his estate is, in Roman Law, so utterly void of obligation that it will not even support suretyship (Dig. 45, 1, 6); and there is no greater force allowed to a compromise about aliment (Digei2; 6; 23,12) and, although an actionable obligation arises when a woman takes on her another person’s debt, yet there is the perpetual plea of the Senatus Consultum Velleianum ready to slay the fetus directly it is born (Dig. 12, 6, 40; and Cod. 4, 5,9). All this makes it clear that natural obliga- tions were not wholly disregarded by the Roman Civil Law, but that some were quite unaided by Positive Law, yet others were allowed cer- tain effects in a civil court, while other effects were denied to them, but so that, nevertheless, the performance due under these natural obliga- tions was left to the conscience and moral sense of the individual and not utterly destroyed.
LIII. Is Natural Law so immutable as to allow no room for Dis- pensation? Before answering this question the meaning of the word must first be explained. To dispense (Dispensare) is to relax in certain cases the obligation of the law, which, apart from this, is couched in universal terms and is therefore of universal obligation, and to suspend the force and operation which it would otherwise have in those cases. From this it immediately appears that this is a thing such as can not occur against the will of the lawmaker, nay, that the power of dispensing is bound up in an inseparable union with the lawmaking power and is com- petent to none but the lawmaker. As far, then, as the question before us is concerned, it follows that it is not lawful and right for man, at any rate, to arrogate to himself dispensing power in connection with Natural Law, even though Usurpers may aspire to the contrary, or he who poses as God’s vice-regent on earth. When Dionysius of Syracuse was attempting incest on his mother and striving to put his own power above the Law, she made answer, that he could change Civil Laws but not Natural. And that was a fine speech of Titus Quintius to the ambassa- dors of Antiochus as given in Livy, bk. 24: “Τὸ pay regard in our deliberations, either mainly or solely, to what is honorable, befits the chief people of the earth and so great a King." But even God Himself, for the same reasons as I laid down a little while ago, has neither desire nor power to employ dispensation in these matters; for this would mean
On the Law of Nature. 35
that God, sometimes at any rate and in certain cases, would be hindering the operation of His own Law, nay, of His own Justice, which is absurd and involves the contradiction of saying that He is God and yet that, at any rate in certain cases, His essential attribute ceases and expires, and is as good as saying that in those cases He both is and is not God. Hence it is manifest that the vice-regent of God already referred to is arro- gating to himself an authority greater than the Divine authority itself and is iniquitously applying it to the infringement of God’s eternal will and immutable Justice. These considerations also show how ill they provide for themselves and their own interests who, while alleging polygamy to be against the Law of Nature, yet, when the examples of holy men of old are thrown in their faces, are wont to fly to the sacred anchor of Dispensation, as if God, Who on their own showing abso- lutely forbids polygamy, should have been moved in individual cases somewhat to relax the Law of Nature in favor of the persons referred to; that is, should have deprived His own eternal and immutable Justice of its necessary operation. ‘This, forsooth, is what happens when one false position has been taken up—many others necessarily follow.
LIV. It can scarcely be told what great and numerous errors this discussion about Dispensation has bred. For William of Ockham, Andreas de Castro Novo, Gerson, Petrus de Aliaco and others have maintained that God could dispense with regard to all the precepts of the Decalogue, and therefore with regard to the Law of Nature, too; and they have been led to that doctrine by this argument more than any other, namely, that there is nothing which in itself is bad or good, but that good and bad are to be reckoned such merely because of the free pleasure of God; and Joannes Szydlovius, mentioned above, not long ago served up a hash of this most pestilent doctrine. There are also adduced, in illustration of that kind of alleged Dispensation, examples from Holy Writ, as Naaman’s time-serving in the house of Rimmon, oaths allowed to be taken by creatures, the Sabbath ordinance relaxed, Jehu’s taking up arms against the King and royal family, Abraham’s slaughter of his son and Samson’s self-slaughter, Hosea’s joining him- self with a whore, the Israelites’ borrowing at their departure vessels of silver and vessels of gold, and midwives’ earning rewards by lies.
LV. Joannes Duns Scotus, while misinterpreting the word Dispen- sation, held dispensation to be absolutely inadmissible as regards the com- mandments of the first Table of the Decalogue—this being limited, however, in the case of the commandment concerning the Sabbath day, to its positive element—but admissible as an act of Divine Power as regards the second Table. Durandus agrees only so far as concerns the fourth * and fifth + commandments, differing as regards the others whether positive or negative. John Major is inclined to admit the
* [n usual English numbering, fifth. T In usual English numbering, sixth.
36 Rachel, on the Law of Nature and of Nations.
possibility of dispensation in the case of all the positive commandments, but not in the case of the negative ones, with an exception of the fifth,t+ about doing no murder. Thomas Aquinas taught a sounder doctrine and was followed by Dominicus de Soto, but so that a difference arose on this matter between the Scotists and the Thomists, the latter assert- ing that the whole of the Law of Nature is inviolable by dispensation; and this view is defended against the first-named school by Cajetanus, Richardus, Tostatus, and Ludovicus Molina among the Papists and, among the reformers, by Cregut and the Anonymous Writer, a Belgian (Dissertatio epistolica de justo et decoro, p. 52), and by our countryman Meisner and a number of other pious and learned men.
LVI. I have recently observed that even good Homer has nodded, the fact being that Mevius, in his Prodromum (insp. 2, n. 38), incul- cates a great error, namely, that ‘“‘ while the Law of Nature is immutable, this does not mean that it is so erected above God, that God is subject to it and is unable at times to obtain good by means of evil ”’; and a little later on he says, ‘‘ By a dispensation God can allow what otherwise is naturally bad; nay, can enjoin the doing of it—much more, do it Him- self." This is something too coarse (φορτικόν), and I regret it has fallen from a man otherwise so excellent. Nay, I would not have touched this sore, had there not been the danger that a reader would be infected or at any rate offended by it. Now the Law of Nature is not so framed that, by reason of its internal quality, it can ever cease or fail; nor can the human mind utterly forswear it or drive it out of the conscience; nor can it be abrogated by any external human force; nay, it does not admit of change either in whole or in part at the hands of God Himself, even if men “‘ hold the truth in unrighteousness’ (Rom. 1, 18) or arraign His absolute power. For God never will nor can use this power so as to allow or approve sins and go counter to Himself and His own Justice, a thing absurd and impious to say. (See a lengthy discussion of this and a detailed reply to the objections raised in section LIV above, in Osian- der’s Typus iegis natura, th. 48, and his Observations on Grotius’ De jure belli ac pacis, bk. 1, ch. 1, th. 10, obs. 3, p. 180, onwards. Add also Grotius himself, place quoted, n. 10.)
LVII. Others adopt another line of attack upon the immutability of this Law. Granted, that Law furnishes a standard to human actions; yet—say they—there are infinite variations in the details and circum- stances of these actions, in such sort that one rule of Natural Law is applicable in one case and another in another, and the same law is not applicable even to actions which in outward semblance are the same. Accordingly they conclude that the Law of Nature is itself variable. Now it is very true that human actions are liable to very many changes, yet it does not follow that the laws themselves, and especially Natural Laws, display corresponding changes. The admitted variety in actions
+In usual English numbering, sixth.
On the Law of Nature. 37
calls for a various application of the laws, but so as that the laws remain immutable in themselves and apart from the application of them. For to us the conceded variety in the application of Natural Law demon- strates or indicates that its obligation does not attach to widely dis- similar actions in one and the same way, but not that its obligation admits of variation in itself, so as at one time to operate and at another not, even if the actions are clearly of the same character. For, owing to this variety in human actions, the Law of Nature also is not equipped with one single rule, or with a few, but with very many; and Judicial Wisdom so interprets and applies these rules as to apply to each action its appropriate law, but without changing or altering the laws them- selves. Now this Judicial Wisdom is not at variance with Legislative Wisdom, but the former subserves the latter, in such a way that, by the appropriate application of different rules to different actions, it rather conserves than alters the obligation of each and every law. For, in a word, to apply different laws to different actions is not to alter the laws, but to declare and pronounce what laws apply to what actions and the way in which and the extent to which any given law affects any given action, or includes it within its obligation. So necessary it is to discrim- inate aright between the objective material of Law and Law itself.
LVIII. What has been said makes it easy now to trace the differ- ences between Natural and Arbitrary Law. ‘The former derives its origin and authority solely from Providence; the latter from the free will of the lawgiver. The former obliges to an act or a forbearance in virtue of its own essential nature; the latter does so in virtue of a volitional decree and institution. The former binds every one; the latter does not do so in its nature. The former is immutable;. the latter will often change. The former took shape in accord with the idea of the eternal Divine will; the latter is always adapted to the conditions of a state or to some other special or private good. The former dates back to the origin of the human race and will last as long as it; the latter has diverse times alike for beginning and ending. The former is promulged by God in the mind of man in a manner entirely peculiar to itself by Right Reason, that particle of the Divine breath; the latter issues, whether by word of mouth or in writing, from the express or tacit approval and will of the lawgiver, sometimes signi- fied directly, sometimes through an intermediary channel. The former puts Probity before it as a preéminent goal, with the intent that just and honest conduct may be alike the means whereby man gets happiness and also the means whereby he keeps and uses it; the latter puts before it the nice considerations of Utility. (Gifanius on Nic. Eth., bk. 5, ch. 7, the words τὰ δὲ κατὰ συνθήκην, in my copy, p. 404.)
LIX. We have seen how great the authority of Natural Law is and what a great difference there is in this respect between it and Arbi-
48 Rachel, on the Law of Nature and of Nations.
trary Law. Now just as the exceeding variety that there is in Arbitrary Law necessarily involves that one part of it often yields to another, in such a way that the authority of the worthier part admittedly breaks down the force and obligation of the lesser and either wholly or in part destroys or at any rate suspends it, so also the authority of Arbitrary Law as a whole is null whenever it is in conflict with Natural Law. (See the Anonymous Author, a Belgian, Dissertatio epistolica de justo et decoro, p. 18.) Now, as the power to make law, considered generally, issues from very diverse sources, the authority of the manifold varieties of Law can not but be correspondingly diverse. For it may be a case of equals being associated in an ordered union in virtue of a deliberate pact, or it may be a case of a superior binding an inferior in such a way that, the one party being under a necessity to obey, the other party is invested with a power to command. And, again, it may be a case of one man being the superior of others in such a way that he can ordain rules of law for them, yet being himself under the necessity to obey a third party. In the end, indeed, the matter comes to this, that the authority of the makers of all Arbitrary Law and Statute is subordinate to the empire of the Omnipotent and most Just Deity, in accordance with the poet:
Regum timendorum in proprios greges,
Reges in ipsos imperium est Dei.
(The empire of dread kings is over their own peoples; the empire of God is over kings themselves.)
LX. It will be equally instructive and interesting to examine care- fully some instances of that subalternation of Laws (if the phrase be permitted). Let us begin with Testaments. A testament is a kind of private statute (Nov. 22, ch. 2). And the utmost freedom of testa- tion is desired, for there is nothing to which man is more entitled than that his pen should be free in the last expression of his will, whereafter there can be no other, and that his intent should be effectuated, which : can no second time be framed (Cod. 1, 2, 1). But no one can provide in his testament that the laws are not to apply to it (Dig. 30, 55, and the examples thereof given by Dionysius Gothofredus). Accordingly, when a testator declared that the heir named in his will was not to avail himself of the Lex Falcidia, the jurist Papinian ruled that the provision of a private person can not derogate from statute ( Dig. 35, 2, 15, pr.). Similarly, although the line to be taken in cases of doubt is that the utmost observance should be given to a matter contracted in good faith, yet the jurist Paulus suggests the qualifying condition that nothing in the document contravene the statutes (Dig. 34, 5, 21).
LXI. Now let us pass to Pacts, which also furnish an instance of laws made by private persons. These persons, when making such agree- ments with one another, ought to take care that there is nothing in them
On the Law of Nature. 39
counter to public statutes. For Public Law may not be infringed by a pact (Dig. 11, 7, 20), or be changed by a pact between private persons (Dig. 2, 14, 38). Accordingly, pacts entered into in contravention of the rules of the Civil Law are deemed null from the beginning (Dig. 2, 14, 28). For the Emperors Theodosius and Valentinian lay it down that they will not have any pact or agreement or contract carried out when the parties to it contract in defiance of a law which forbids the contract (Cod. 1, 14, 5); and the Pretor announces that he will not support pacts which are made contrary to laws or plebiscites or senatus- consults or imperial constitutions (Dig. 2, 14, 7, 7) ; and, generally, no pact that is repugnant to the Common Law ought to be observed (Dig. 2, 14, 7, 16). Much less can those pacts generate Law which are against good morals (Cod. 2, 3: 6 and 30; and 8, 38, 4; and Dig. 16, 3, I, 7; and 24, 3, 14, 1; and 45, 1: 61 and 35 (1) and 134). And least of all have those pacts any obligatory force which have disgraceful con- tents or infringe the Law of Nature in any way. If, then, a promise be made in return for the other party’s abstention from a crime, no obliga- tion springs therefrom (Dig. 2, 14, 7, 3), for pacts which disclose a dis- graceful consideration, such as an agreement not to commit theft or a personal outrage, are not to be observed, for it is the policy of the Law that the penalty for theft or outrage shall act as a deterrent (Dig. 2, 14, 27,4). It is common knowledge that disgraceful stipulations are void (Dig. 45, 1, 26), for example an undertaking to commit murder or sacrilege; for the Pretor, as a duty of his office, must refuse an action to enforce such obligations (Inst. 3, 19, 23). Nay, pacts and conditions of that kind are rightly classified with impossible pacts and conditions; that is, we are supposed incapable of doing acts hurtful to piety or reputation or modesty or, to put it generally, against good morals ( Dig. 28, 7, 15). Accordingly a man is not held to have committed default as regards a condition which he has perforce omitted to fulfil because it is of this character (Dig. 28, 7, 8, 7; and Guil. Grotius, De principiis juris naturalis).
LXII. Nor can magistrates any more than private persons enter into agreements of the kind under consideration; and so Hadrian gave a rescript that Public Law could not be changed by an agreement made by the Duumviri (Dig. 27, 8, 1, 9). The higher, then, the authority of any given lawgiver, the less may those who owe him obedience with- stand or detract from his expressed will and ordinances. But dutiful- ness attains its greatest glory when respect and obedience are rendered to the Law of Nature and to its Author; for hereto the most highly placed Princes and States of the earth are bound, nay, the whole human race, without any right of gainsaying. On this is based the pronounce- ment of the jurist Pomponius that rights springing from blood-relation- ship can not be destroyed (Dig. 50, 17, 8) ; and so, although by the
40 Rachel, on the Law of Nature and of Nations.
Roman Civil Law marriage could not be contracted with slaves, but only the union called contubernium, yet the jurists warn us that respect must herein be paid to blood-relationship between or through slaves, because in contracts of marriage Natural Law and modesty must be taken into consideration (Paulus, in Dig. 23, 2, 14, 1; Modestinus, in Dig. 23, 2, 42; and in 50, 17, 197). Since, then, Law, according to Demosthenes, is a device and gift of God, and ought, according to Chrysippus, cited in Dig. 1, 3, 2, to be the measure of the just and the unjust, lawgivers, when making Arbitrary Law, should display the utmost care and anxiety and forethought not in aught to minish, or detract from, Natural Law. For if any laws which are opposed to that Law be introduced, Divine Providence forthwith intervenes and not only upholds the authority of its own Law but also deprives the laws in ques- tion of all obligatory force and compels those subject to them to contrary conduct. And if any lawgiver proposes to claim by tyrannical force authority for laws of that kind, that law, the higher it be carried, will only the more be a violation of Law, and the remark of the jurist Paulus will apply, “‘ He acts against the Law who does that which the Law for- bids " (Dig. 1, 3, 29).
LXIII. As, then, it not seldom happens that, among other laws well and wisely made, some are found which are repugnant to Natural Law—and instances of this occur even in the Roman legal system— lawgivers should be all the more cautious in proportion as this kind of fault becomes common. For in this matter lawgivers do not offend alone, but compel their subjects to offend too, by requiring them to obey laws of this kind. Aye, and they make their judges offend even more, for it is by reference to the standard of such laws that these persons examine conduct and pronounce on it when examined, and decree punish- ment according to the circumstances of the case, while all the time laws of this kind fail to furnish a true standard, and the framer of them
Avius a vera longe ratione vagatur. (Wanders off the road and far from true principles.)
Hence a conflict often arises between Natural and Positive Law, be- tween Equity and strict, rigid Law, and in the activities of the internal and the external forum; and which of the two competitors ought to succeed is easy of decision in a general proposition, but when we come to consider the special case, the water often refuses to flow and the con- science hesitates (Guil. Grotius, De principiis juris naturalis, ch. 2, n. 12). For it is easy to slip into the other way of thinking and make an erroneous estimate of Equity and Natural Reason, as Celsus long ago complained and as we have shown at length in our Disputatio de equitate. (See Mevius, Prodromum, insp. 2, n. 20, onwards; he even approves of the subordination of Natural Laws—n. 43, onwards. )
On the Law of Nature. 41
LXIV. We will give some illustrations of the above topics. There is a town in Germany the local Law (Statutum) of which gives the in- habitants of the town a preferential treatment in case of an insolvency over all outside creditors. Now a certain widow had lent money to a citizen of this town, there being other creditors who were subsequent to her in time and in other respects; as she had, however, a foreign domicil, she had purchased a magisterial grant of citizenship. The debtor made himself bankrupt, and a contest arose among the creditors on the ques- tion of priority, those who were citizens of the town claiming that the widow ought to be postponed to them, although they relied on no other right than that of citizenship and were in point of time even subsequent to her. These claimants obtained a favorable decision from three benches of jurists on the ground of the privilege conferred by the local Statute, and also on the ground that the widow had not discharged all the local burdens and obligations like the other creditors who were domiciled there, and had therefore not come up to the full measure of a citizen. ‘This decision was in my opinion wrong and utterly unjust: for had the issue been between this local Statute and the Law of Nature, there would have been little, nay, no difficulty in refusing the former any authority, inasmuch as it would conflict with that Law of Nature, one of the precepts of which is, Pay that thou owest. Now contractual advantages, so far as they are fixed by the Law of Nature, enure to the benefit of foreigners as much as to the benefit of citizens, and money loans ought to be repaid to both classes alike; and therefore, if there are several secured creditors of a citizen of that town, some of them citizens and some foreigners, and the former class of creditors have no other ground of priority than their citizenship, while the other class have priority in point of time, the rights of these latter, being also prior and stronger in virtue of their descent from the Law of Nature, can not be overridden by the mere local Law, unless you propose to enrich the former by wronging the latter (Dig. 50, 17, 206) or to reduce one party to an unjust condition through the medium of the other (Dig. 50, 17, 74). Among the grounds on which some creditors are preferred to others you will, on examination, find some which are approved by Natural Reason; but, at the bidding of a merely local law, to deprive a foreign creditor of a right conferred on him by the Law of Nature not only is unjust but argues ingratitude towards outside benefactors. Now let us come back to our special case: ought not the widow's right of citizenship, which she had obtained, aye, bought, from the magistrate, to advantage her at least to the extent of not being postponed by the mere local law to citizens over whom she had priority both in time and in law? For, although she had not borne all civic burdens, yet it can be retorted that, so long as she was domiciled and had the bulk of her for- tune abroad, she was not in enjoyment of all civic advantages. May those
42 Rachel, on the Law of Nature and of Nations.
who differ from me bear my dissent with equanimity and give scope for the application of the Greek proverb, ἄφθονοι τῶν μουσῶν θύραι, There is no grudging within the gates of the Muses.
LXV. Suppose that a man, under the spur of a wrong done to him, challenges his opponent to the duel and kills him; it is often asked whether he ought to receive the usual punishment of the Lex Cornelia. If vengeance was the only motive of the challenger, then, as the protec- tion of the courts was open to him, the Law of Nature pronounces that he ought to be visited with the penalty of life for life; but in usage and practice another course is adopted, and Carpzovius (p. 1, Practica rerum criminalium, 29, n. 75, onwards) supports this with his own opinion and that of many others. Seeing, however, that this challenge was prompted by a vengeance which is forbidden by all Law, and that a man ought not to take the Law into his own hands instead of using legal remedies, our opinion is confirmed as the more correct by Bachov on Wesenbec, Ad legem Aquiliam, n. 4, and Hahn on the same.
LXVI. It would be possible to furnish many other examples of this kind, for cases in which there is this conflict between Positive and Natural Law are repeatedly put before lawyers and judges for decision. And should you urge that a reason for all the institutions that have come down to us from of old can not be rendered, nay, that their reason ought not to be enquired into for fear of upsetting much that is settled (Dig. I, 3: 20 and 21), my answer is that I in no way persuade, nay I dissuade, any one rashly to abandon a rule of Positive Law, even though its reason be obscure or uncertain and though it produce some slight inconvenience: but if there be a manifest antagonism between it and a Law of Nature, I would have the authority of the latter prevail; and I assert that the authority of the former is then null and that Judges ought in such cases to adjust their decisions to the Law of Nature and not to the Positive Law which is counter thereto. Jacobus Gothofredus says well (on Dig. 50, 17, 8) that the question whether Civil Law can ever derogate from Natural Law can really never be asked.
LXVII. Suppose that one of malice aforethought strikes a sound and healthy man with a deadly weapon, or shoots a bullet through him, or runs him through with a sword, and the victim forthwith falls to the ground and dies, and is buried without any inspection of the wound; the question is put whether the manslayer ought to receive the usual punish- ment of homicide. Many say " No," Carpzovius very emphatically. The Emperor Charles V, indeed, would not have the judges neglect the inspection of the wound, as appears from Constitutiones criminales, Art. 149; but if this Article be compared with Art. 147, it becomes clear that a distinction must be drawn according as there is any reasonable doubt whether the wound was or was not a deadly one. I do not dissent from the view that, although there should in both cases be an inspection of the
On the Law of Nature. 43
wound in compliance with the statute, yet if, in the latter case, where it is omitted, the victim dies immediately on being wounded, Natural Law demands the penalty of life for life; and I hold that they are wrong who on this pretext are content with a remission of the usual penalty. (See Brunnemann, De processu inquisitorio, ch. 7, n. 20.)
LXVIII. Some maintain that advocates ought to be on their guard, when proceeding against a man for homicide, to allege in their written accusation simply the fact of the killing without any particulars as to the manner thereof; for if they add these details, the accuser will have to prove not only the killing but also the manner of it. So far so good. But they go on to inculcate that if the allegation as to the manner can not also be proved, for instance, that it was done with malice afore- thought, yet, despite the obviousness of the killing and of the guilt of the accused, the accused ought to receive an unqualified acquittal and not be subjected afresh to any charge or punishment by reason of his guilt, nay, can not even be sued civilly thereon. Now this is plainly repugnant to the Law of Nature. Yet this so-called “‘ neat and golden caution " is commended as being ‘‘ worthy to take deep root in the mind, ig that it throws the burden of proof on the accuser, and this although it enables a man to free himself from the penalty of the homicide, no matter what degree of criminality there was in it." So says Berlich (p. 4, concl. 14, summ. and n. 2).
LXIX. When homicide has been committed, the manslayers and their advocates often proceed as follows: they compromise by a money payment or by other means with the widow or children or kindred of the slain person, and in this way the latter give up the accusation and their rights. Now, when this has taken place, some claim that the man- slayer ought to be exempt from the usual punishment. But whenever this decision is come to, it is done without the consent of both the Law of Nature and Positive Divine Law, for a wrong of this kind amounts almost to a double affront, the one being offered to Universal Justice and the other to Particular Justice. Each of these demands redress, in such sort that a private compromise and arrangement can not prejudice the commonweal by preventing it from punishing a criminal for a breach of the Law (Cod. 7, 60, 2). And in order that manslayers may avoid punishment more surely still, some recommend this additional caution to them, namely, to have a magisterial confirmation of the private com- promise. True, the Law of Nature does not raise any objection to this course; but, that a magistrate should lend his authority to a private compromise and arrangement to the detriment of public vengeance, this is counter to the Law of Nature. The iniquity of this proceeding is shown more fully by Oldekop (decad. 2, Questiones ad processum criminalem 1).
44 Rachel, on the Law of Nature and of Nations.
LXX. Reverting now to the definition (of Natural Law) given above, we find that one of the prime needs in connection with it is a careful explanation of Right Reason and of the way in which the Law of Nature is promulged by it in the mind of man (Guil. Grotius, De principiis juris naturalis, ch. 3, n. 5). For no law has obligatory force unless it has been promulged and brought to the knowledge of those who are to be compelled to obey it. This can be illustrated in the words of Ludovicus Molina (De justitia et jure, vol. 5, tract. 5, disp. 70) : '"* Hence Promulgation, with which we are now dealing, not only is the pre-condition of the binding force of Law—-just as the application of fire to tow is the pre-condition without which the natural force of fire, which exists in fire in a complete condition before that application, will not set the tow on fire—but also is a sort of complement of Law, and, to that extent, a complement of the force or virtue which Law exercises in binding those who are subject to it." What the nature of Right Reason is, I will set out briefly, having already elsewhere discussed the question more minutely. Reason or Intelligence signifies that human faculty which contains and possesses as its essence the power of reasoning and understanding; but that it is Right Reason, this it owes to its own inher- ent virtue, for the distinguishing characteristic of such virtue is that it perfects the faculty of which it is and is called the virtue, and equips it for the right and ready and easy performance of its functions. This Rightness,ópfórgs, of Reason is not born with us, as is Reason itself, or the faculty of reasoning, but is acquired by industry and other means. And as Reason finds its scope alike in matters necessary and in matters con- tingent, and alike in matters active (πρακτικά) and in matters effective (ποιητικά), it requires for its Right operation on such diverse material not merely the perfecting activity of one virtue, but the coóperation also, in the production of that Rightness, of all those habits by means of which we can rightly arrive at truth, ἀληθεύειν, both in necessary and in contin- gent matters. Aristotle (Nic. Eth. vi, 3, $ 2) enumerates five of such habits of mind; namely, Intuitive Reason, Science, Wisdom, Prudence, and Art. ‘The three first-named of these complete the mind on the Theoretic side, so that it can duly ἀληθεύειν, attain truth, in necessary mat- ters. Prudence completes the mind on the Practical side; I here use that phrase in its narrow sense, for sometimes it is employed in a wider sense to denote the Effective side, that, to wit, whereby the mind comports itself rightly in matters of conduct, determining what ought to be fol- lowed and what avoided—hence Aristotle says (Nic. Eth. vi, 13, ὃ 17), '" Right Reason is that which Prudence guides," and (ὃ 21), ‘‘ Right Reason concerning such affairs is Prudence itself." Lastly, Art perfects the mind on the Effective side, so that it dexterously performs its creative functions. If, then, a classification of Right Reason be desirable, it will be a threefold one: Speculative, Practical, and Effective. Accordingly,
On the Law of Nature. 45
if Right Reason in an absolute and unqualified sense be attributed to any one, he must needs be completely equipped with all these mental virtues for the successful quest of truth in all departments, Theoretical, Practical, and Effective. When, then, certain philosophers limit Right Reason to the Practical side of the mind as equipped by the mental state called Prudence, they are only speaking of the underlying moral subject- matter with which they are concerned, for a wider outlook shows that the human mind is not perfected by this one state of mind as regards all departments, but only as regards matters of conduct, τὰ πρακτά.
LXXI. Now as the conformity of human conduct with Natural Laws is achieved not by Prudence alone but by Prudence and Moral Virtue, so, while Prudence promulges the Natural Laws and causes con- duct to be guided by the standard they set up, it is by Moral Virtue that the appetite is led to render a perfect obedience to those laws. That is the teaching of the Philosopher, Nic. Eth. vi, 12, ὃ 16: ἔτι, τὸ ἔργον ἀποτε- λεῖται κατά τε THY φρόνησιν καὶ THY ἠθικὴν ἀρετην. ἡ μὲν γὰρ ἀρετὴ TOV σκοπὸν ποιεῖ ὀρθόν. ἡ δὲ φρόνησις, τὰ πρὸς τοῦτον, “ Further, the work is perfected by Prudence and Moral Virtue: Virtue brings it about that the end pro- posed is a right one; Prudence brings those things about which lead to that end.” Now what, I ask, is here meant by the proper work, ἔργον, of man, and what is the character of his perfected work, ἀποτέλεσμα ? Man’s proper work is to live according to Virtue and Right Reason. ἔστιν ἔργον ἀνθρώπου, ψυχῆς ἐνέργεια κατὰ λόγον, καλῶς πραττομενῇ, “ The work of man is to direct the activities of his soul in accordance with Reason and along lines that are good, or in accordance with Moral Virtue.” (Nic. Eth. ii, 7, $8 41, 43.) And the perfected work is known by the exact conformity of that human conduct with the standard set up by the Natural Laws. For just as the works of artisans which attain to the due standard are ordinarily called ἀποτελέσματα, masterpieces, so conduct which complies with the rule of Prudence and Virtue attains by that conformity ἀποτέλεσμα, full completion. ἔκαστον εὖ κατὰ τὴν οἰκείαν ἀρετὴν αποτελεῖται, '* Every work is perfectly completed in accordance with its own peculiar virtue " (Nic. Eth. ii, 7, $43). As, then, it is man’s proper work to live honestly and justly by means of the virtues which are the peculiar attributes of his nature, namely, Prudence and Virtue, he also attains perfection in this his work under the guidance of these same.
LXXII. Some time ago, in my Prolegomena to Cicero’s Offices, I discoursed of Right Reason and showed that, although man may be taught by it what things are by nature honest and just, yet it is not enough to deem that the bond of obligation which is inherent in Natural Law is fastened by it, but that bond must be carried back to God Himself as its prime author. A certain very learned person, who had read and approved this, nevertheless found me wanting in two respects—namely,
5
46 Rachel, on the Law of Nature and of Nations.
that I had not built on firmer foundations in § 46 and that in § 55 I recur in the end to God. The person in question had been treating of Natural Probity; and, after having set himself to seek for the criterion of Probity, he said that it could not be Right Reason, because Probity, on his interpretation, “ carries with it a degree of obligation and binds men universally to act in a certain way and no other " (8 14). A little later on he said that I had made it impossible to adduce sounder arguments, because in $ 33 I had destroyed the basis of Probity, had confused the Law of Nature with Right Reason, had denied the innateness of com- mon ideas, αἱ ἐννοίαι κοιναί, and had, with the aid of Thomas Aquinas, distorted the meaning and purpose of the Apostle; for (said my critic) Natural Law and Right Reason are two quite distinct things, the former including the most common practical principles implanted in us at our begetting, while Right Reason proclaims the conclusions which are deduced therefrom. Well, I am sorry that he has not sufficiently understood either his own or my remarks. In the first place he makes a mistake in interpreting Probity as always implying obligation; for although Probity and Justice are often conjoined in a synonymous man- ner, ovvovopós, yet in fact a distinction can be drawn between them, and ought to be drawn when circumstances require it, as previously pointed out by me in ὃ 15 of the Prolegomena referred to. For almost the same difference is perceptible between Probity, properly so called, and Justice as exists between all the Moral Virtues and Universal Justice. (See my treatise De justitia universali.) In the next place, although it is true that Right Reason is distinct from the Law of Nature, yet our writer incrusts that distinction with a false explanation. For the Law of Nature is no less manifest in the conclusions to which it leads than in the universal principles on which it rests, and Right Reason means here the mind perfected on its Practical side by Prudence, which promulges to us all those Natural Laws which either are based on similar principles or lead to similar conclusions; and as to what he says elsewhere, namely, that God promulges Natural Laws every time that He allows them to be re-born in posterity by means of natural generation, that is subject to the same hypothesis but is not in my thinking the same thing. For, on his own admission, the lawgiver's will is manifested by promulgation, with the result that the laws so promulged begin to bind; and it would follow therefore that Natural Laws become known to man immediately on birth and from that moment effectually bind him, a thing which every one sees to be contrary to experience. Thirdly, I said that the origin of Probity and Natural Law can be made known to us by Right Reason, but that the commencement of the obligation which that Law contains must be traced to God Himself ; and earlier I showed that this is possible if, to make use of Cicero's phrase, we rightly consider the dignity and end of our own nature—now this dignity of human nature lies in the
On the Law of Nature. 47
fact that it is Rational and Social. If, then—so I afirmed—man has formed a correct judgment with regard to the things which lead to the proper end of Natural Societies, and with regard to the duties and laws by means of which those societies are kept in continuance and in safety, and also with regard to the things which are adapted to his rational nature, this judgment supplies the rule and pole-star of Probity. How does our writer meet this? “ Although these things show that men are moved and impelled towards Probity, they do not yet introduce any obligatory legal force at work." Now my primary purpose in the pas- sage under criticism was to show how Probity and Natural Law can become known and be demonstrated to us by means of Right Reason; and, in order. that man may respond to this demonstration and obtain the knowledge that he is finally bound to fulfil the correspondent duties, I brought him to God in these words:
“To the intent that men may perceive that this binding authority and necessary obedience must be most sacredly respected and observed by them, let them bear in mind that it is by the working of Divine Provi- dence that they have received a nature not only social, but rational, and that, inasmuch as the ends of Society can not be compassed without the order and bond of Law, the contemners of this Law offend most griev- ously against God and call down His anger on themselves " (8 55).
How does our critic receive this? ‘“‘ According to this," says he, " every man’s remembrance that he has received from God a rational and social existence, is the ultimate foundation in his mind on which Probity rests." Really, I had not looked for that sort of verbal bird- snaring or the empty play on words which that passage contains; it looks as if nothing can be so well expressed as to escape all sophistical mis- handling. |
LXIII. I said that the knowledge of what things are by nature honest and just can be acquired by man under the guidance of Prudence and by a careful examination of the ends of Natural Societies. Let him not, however, imagine that it is left to his discretion to adapt his conduct to these ends, just as he likes or does not like—nay, in order that he may attain complete certitude that obedience and a definite course of conduct are imposed on him of necessity, I would have him diligently weigh and recall to his mind the fact that God is the author of Natural Societies and of their laws, and that it is He Who has implanted the social appe- tite in man, with the intent that man shall adapt his conduct to the ends of these societies—unless he proposes to forswear God and His ordi- nance and Laws and do violence and offer resistance to his own nature, and so fall into most grievous sin. All these matters are manifest in themselves and accordant with truth, and the whole of the present disser- tation will furnish illustrations and confirmations of them. What, then, is the basis of the charge which is brought against me, that I have over-
48 Rachel, on the Law of Nature and of Nations.
thrown the foundations of Probity? This, that I would not admit that Natural Laws and principles of conduct, which are alleged to furnish the standard of Probity, are habitually innate in us. Now just as I do not wish to do violence to those who are satisfied with these opinions, so I also claim for myself full freedom of philosophic thought, and can not commit myself to an approval of what runs counter to my experience and intelligence; and I am, therefore, so far from wishing to wrench the Apostle’s words from their true sense and bearing, that I prefer to expound their true sense and, with that intent, to adhere to Thomas Aquinas, than whom I doubt whether there has ever been a mortal man more subtle and exact in the discussion of human affairs. And yet it is not he alone, but hosts of others also who have arrived at the same con- clusion about the Apostle’s language and the principles of conduct, as may be seen from what I have said above in sections XVII and XVIII, and indeed so unmistakably that, alike whether I chose arguments or numbers as my weapon, I could acquit myself of the heavy charge of sub- verting the foundations of Probity. We are taught by Aristotle that although the desire for pleasure makes men easily fall into vice, yet the dogma that all pleasures are bad is indefensible, for a presumption of falsity is raised against it at the outset by the fact that even its author did not wholly abstain from pleasures; and, further, whatever truth it may contain is at the same time overthrown by Nic. Eth. x, 1, ὃ 12. The same thing happens in the case of those who, in order to give their philosophy a firmer foundation and a freer course, repeat with confidence that the principles of conduct and Natural Laws are habitually innate in man; and they go so far in holding views which, on the abundant testi- mony of general practice and experience, as confirmed by the discoveries made by every one for himself, are so clearly inconsistent with what is and what has been ordained, that they who are content with this fabri- cation seem, on the one hand, to make their own position in the highest degree suspect and, on the other, to bring quite unjustly against me the charge of having laid insecure foundations for Probity and Natural Law. And so when our author in another place quotes these words of mine, '' The system of governance and obedience is of Nature's ordain- ing, but it can not exist without εὐνομία, Good Order," he adds this ques- tion, ‘‘ But if you reject the (habitual) innateness of Probity, what εὐνομία can you have?" I retort, What kind of logical consequence is there here? Let us return into the right way from our digression.
LXXIV. We have agreed that Prudence perfects the faculty called Practical Intellect, and Virtue the faculty called Appetite. Now per- fection is in each case attained not at one moment, nor at one onset, nor as a complete whole, but slowly and by diligent efforts and diverse means and diverse stages. And just as Rightness of Intellect is thus gradually set forward by Prudence, and Rightness of Appetite by Virtue, and
On the Law of Nature. 49
each of them grows and develops by the aid of its own resources, so also the same stages and correspondingly patient steps mark alike the ad- vance of Right Reason in the promulgation of Natural Laws, and the advance of Appetite, well trained as it has been by Virtue, in the yielding of its assent and of an easy and zealous obedience thereto. The stages of this advance would admit of more correct investigation and measure- ment if there had been prior scrutiny of the growth of Prudence and Virtue, their causes and methods. Now we have carried out that very scrutiny in two other dissertations, one On Moral Virtue and the other On a Good Disposition, περὶ εὐφυΐας, and both of them might well be embodied in the present dissertation, to the no slight illustration of its argument; but, in order to avoid seeming to wander too far from our subject and raising a grudge against us in the reader’s mind, we propose to throw them in at the end of this dissertation, by way of make-weight, and to deal there with each topic separately and by itself.
LXXV. Further, as regards the promulgation of Natural Law, it is worthy of careful note that, while all Law is in the form of a general proposition and Natural Laws are unwritten laws, they are promulged by Right Reason sometimes in a simple and concise form and sometimes in a fuller form, and often in restricted form; for, although the following Laws of Nature are promulged in the mind of man in a general form— namely, Obey parents, Submit to magistrates, Return things deposited— still, if parents command something which is wrong and displeasing to God, or a madman requires the return of a sword which he has deposited, Right Reason limits and confines, by a reference to special circumstances, the effect of the promulgation of those laws and inserts in it conditions of Natural Law such as the following: Parents must be obeyed if their commands are not unjust, A deposited thing must be returned if no one is going forthwith to misuse it to another’s hurt. The reason now is apparent why Aristotle said that Equity corrects Positive Law but not Natural Law (Nic. Eth. v, 10) ; for, since Natural Law is unwritten Law, it can not lack Equity, inasmuch as it can not be envisaged as a whole apart from all the exceptions to it, and, when these are also taken into the account, it presents itself to our eyes as self-sufficient. So says Guil. Grotius (De principiis juris naturalis, ch. 3, n. 11). Again, some Natural Laws are Commands, others are Prohibitions. Now the latter class does not admit of the exceptions or the limitations just spoken of, for the laws whereby adultery and theft, and such-like offenses, are base and always to be avoided are true laws, which admit of no exception. The Schoolmen, accordingly, used to put it as follows: The Negative precepts of the Law of Nature bind always and in all con- tingencies (semper el ad semper), but the Affirmative precepts, though always binding, do not bind in all contingencies (semper sed non ad semper). (Guil. Grotius, De principiis juris naturalis, ch. 2, n. 11; and especially ch. 5, nn. 9, 12.)
50 Rachel, on the Law of Nature and of Nations.
LXXVI. It may perhaps be urged that, if the promulgation and notification of Natural Law take place as indicated, it must always be uncertain, doubtful, frail, and unstable. If any one looks at the matter rightly, he will.see that stages and advances are provided in Promulga- tion; slight and infirm at first, they are little by little enlarged and strengthened in the case of men endowed with good natural parts which have been furthered by diligent habits and the pursuit of sound learning; for such men make most happy progress in the knowledge of Natural Laws and in acquiring a solid and sure perception and observance of them. For just as Vice is potent in the overthrow and destruction of Principle (Nic. Eth. vi, 5, $16), so Wisdom makes it easy to discern Truth in conduct, and Virtue's training of the Appetite is such that it does its will without reluctance and the Practical Intellect conforms to Natural Laws. For if Vice and all that conduces thereto— such as bad natural parts, neglect of discipline, a life prone to continual excitements and, more than all, ruined by pleasures—corrupt and pervert and extin- guish the judgment of the mind, so that it can not tell honorable from base or just from unjust, and so that it refuses to do homage to the Natural Laws which are the principles of conduct, it is certain that Pru- dence and Virtue and all that conduces to them will produce contrary results.
LXXVII. Furthermore, the judgment of the Practical Intellect can be fortified by other arguments, and Right Reason itself testifies to its own Rightness. In order to show this more clearly, it must be pre- mised that all the Laws of Nature are either Principles or Conclusions: when Principles, they are either, on the one hand, Primary and Imme- diate or, on the other, Mediate; and when Conclusions, they are either closely or remotely connected with Primary Principles (Guil. Grotius, De principiis juriis naturalis, ch. 2, n. 7). I will give two illustrations of the importance of this distinction. Aristotle (Nic. Eth. iii, 5, ὃ 19) and the Jurists (see the whole of the Titles in Dig. 22, 6, and Cod. 1, 18, on Ignorance of Law and Fact) lay it down that ignorance of Natural Law, which they also style Universal Law, is no excuse; but this does not apply so rigidly in cases of ignorance of conclusions of Natural Law which are remote from their underlying principles, because here every one is a more easy victim of hallucination, owing to the few opportuni- ties afforded for the instructions of Prudence and Knowledge. To hold otherwise would be to require from everybody without distinction a con- summate Prudence, a thing unattainable, ἐκ τῶν ἀδυνάτων, and to maintain as a necessary proposition that everybody can easily develop the conclu- sions which flow from the corresponding principles. Such an opinion would indeed argue great ignorance, ἀπαιδευσία, of human nature. I have further remarks on this topic in my treatise De principiis actionum mora- lium (disp. 2, th. 36, onwards) ; they may well be put side by side with
On the Law of Nature. 51
what is said here. My second illustration is the following: After Grotius has admitted the lawfulness of war against violators of the Law of Nature (a doctrine which we will not here discuss but will leave in a neutral position), he passes on to distinguish between those parts of the Law of Nature which are, and those parts which are not, evident; and he declares that, when it is an evident part which is infringed, the right of penal war arises, but not when it is a non-evident part. (See his De jure belli ac pacis, bk. 2, ch. 20, sec. 47 and the immediately preceding sections. )
LXXVIII. Elsewhere I have shown at some length that a knowl- edge of morals is given us to render the mind unchangeable, ἀμετάπτωτος, and to give it full assurance with regard to its own demonstrations; and in the same way there will be no less assurance with regard to the pro- mulgation of Natural Law, but rather the fullest assurance, such as utterly compels the mind's assent ( Mevius, Prodromum, insp. 2, n. 26). Now in every branch of Science three things are needed: a Subject con- cerning which something is shown; an Attribute (adfectio), or that which is shown with regard to the Subject; and a Principle which is shown to be the cause whereby the Attribute exists or inheres in the Sub- ject: and these three can be found in the Science of Natural Law, which is sometimes styled Moral Philosophy. For the Subject is human moral conduct, the Attributes of which are shown to be that it is either Just or Unjust, Honest or not Honest; and this is by reference to Principles which themselves are Laws of Nature, principles of living and principles which demonstrate the conduct wherein moral living consists. ( Aristotle, Rhetoric iii, ch. 17.) And although the same Philosopher, in his Analytics, requires that the principles of demonstration shall be Imme- diate, yet this is to be understood as applying only to demonstrations of the prime and principal order, from which we advance in due sequence, and according to the rules of analysis, in such a manner that the conclu- sion of the first and immediate demonstration becomes the principle of the next succeeding one, and so on until the series and chain of demonstra- tions reaches its close in some particular conclusion. Accordingly, Aristotle (Nic. Eth. vi, 11) shows that the Intellect, alike Practical and Speculative, deals with ultimates of two varieties, or with ultimates at both ends, τῶν ἐσχάτων ἐπ’ ἀμφότερα (ὃ 11) ; and as the virtue of the Prac- tical Intellect is Prudence, and as this is directed to the ultimates at both ends, τῶν ἐσχάτων ἐπ᾽ ἀμφότερα, this means that on the upper side it ends in some primary and intuitive principle, and on the lower side in some particular (action or conclusion). For the Philosopher shows (Nic. Eth. i, 4) that the Intellect employs both paths, and he illustrates this by the double running-track, διαύλος, concerning which consult Pollux's Onomasticon.
52 Rachel, on the Law of Nature and of Nations.
LXXIX. You say that it falls to few to learn about the Laws of Nature by clear demonstrations, inasmuch as only a few render homage and assent to those Practical Principles. Nay, verily, those principles will command the assent of all who have accepted and employed those guiding supports of Prudence and Virtue which I mentioned above; that is to say, all whose natural parts are not distorted, but are capable of discipline, and who have been well trained and are habituated to good works. ‘“ For the good man forms a true judgment on individual things, and whatever truth there is in any of them shines out for him at once. For his habit of mind is such that he devises things honorable and pleas- ing. And herein it is, perhaps, that the good man so far excels others, namely, that he sees the truth in things as if he were their standard and measure." (Nic. Eth. iii, 4, ὃ 10, onwards.) Accordingly, even if you prove that bad men are in the majority and that all of them think other- wise of practical principles or Natural Laws than good men do, yet their judgment, being corrupted by vices and pleasures, is not to be compared with—much less be preferred to—that of good men. For, just as wholesome things are wholesome to sound constitutions but diseased and sickly bodies are better suited with other things, whether bitter or sweet or hot, so also good men form correct estimates of what things are honest and what not honest, adjudging that the former are to be done and the latter to be avoided, whereas bad men are led by the weakness of their mind, ἀρρωστία, to a contrary conclusion. In the same way, although Natural Laws are in themselves certain, yet relatively to men and human knowledge they may be either obscure or uncertain or clear; so that, just as jurists employ as a kind of standard of human conduct the diligence of a good man, so, and rightly, philosophers refer to the judgment of a good man, whose nobility of character, καλοκἀγαθία, is known to be conjoined with Wisdom in an indissoluble connection, and who therefore knows better than any one else whether a given action is or is not conformable to the Natural Laws which Prudence has pro- mulgated.
LXXX. But, you say, how is it that these Practical Principles or Natural Laws are not as potent to convince the Intellect as are the Speculative Principles, which compel the assent of the bad no less than the assent of the good? Well, there is a great difference between the Speculative and the Practical Principles, just as there is between Specu- lative and Practical Truth (Nic. Eth. vi, 2). For, Practical Truth not being consummated by speculation on the Truth but being, like the Practical Principles, expressed in action, it follows that the Practical Intellect of one who proposes to carry Practical Truth into action must be otherwise ordered than the Speculative Intellect which ends in a state of mere contemplation. The latter can yield its assent to principles which are purely Speculative, whether the man’s mind be of a good or
On the Law of Nature. 53
of a bad moral cast; while, contrariwise, he alone whose mind is well trained and well prepared for good actions can yield assent to Practical Principles. I have written elsewhere about Practical Truth (see my Examen probabilitatis Jesuitice, ch. 9, reg. 9).
LXXXI. Demonstrations are not, however, the only criteria which the Practical Intellect utilizes in the promulgation of Natural Law and in the confirmation of its truth and authority. There is another criterion by means of which the truth of things is ascertained, κριτήριον, ᾧ ἡ ἀλήθεια τῶν πραγμάτων γιγνώσκεται, to employ the identical remark which is made about Dialectics in the Zeno of Diogenes Laértius. The criteria to which I refer are Experience and Conscience. Accordingly Eustratius supplements Aristotle's statement that Principles can be ascertained through Induction or Perception or Habituation, by adding Experience, though maybe this does not differ from Induction (Nic. Eth.i,7,§ 56). The manner in which Experience is generated is neatly described by the Philosopher (Posterior Analytics ii, last ch.). Says he, ‘‘ Animals have a certain congenital faculty of judgment, δύναμιν κριτικὴν σύμφορον, which we call Perception." And in another place (Topica ii) he says, '' Per- ception is judgment, τὸ δὲ αἰσθάνεσθαι, κρίνειν ἐστί. The sentient faculty, accordingly, perceives the objects of sense and differentiates between them, but with differing effects as between brutes and man—nay, even as between brutes and brutes, for some brutes are merely susceptible to the sense-impression, τὸ αἰσθῆμα, which the object produces, retaining no remembrance thereof, while in the case of other brutes there remains after the sentient act a kind of image or reflection which they retain in their memory. Man, however, is not merely percipient, enfolding in his memory his sense-perceptions, but he employs the force of intelli- gence in comparing these images with one another and investigates the differences between them in the light of Reason. Hence comes Aristotle’s generalization, in the passage already referred to, Memory is the product of Perception, and Experience is the product of many identical memories; that is to say, out of the memory of repetitions of the same thing comes Experience, which is nothing else than a mass of memories, many in number and all composed of individual matters of the same semblance. Further, out of Experience, wrought upon by Reason, there springs up in the Intellect and remains there a certain unitary Universal over and above the Manifold (in the Philosopher’s language) —that is to say, a mental concept which is derived by abstraction from many, nay from all, those individuals, but actually existent as one and the same in each of them—and this thereafter is the Principle, whether Practical or Speculative, of demonstration. Side by side with this text of the Phil- osopher another of his may well be placed (Metaphysics i, ch. 1) : “ It seems, then, that for practical purposes Experience does not differ from Art; nay more, we see practical men more successful in their treatment
54. Rachel, on the Law of Nature and of Nations.
than those who possess Theory without Practice, the reason being that Experience is a knowledge of individual cases, whilst Art is a knowledge of the General Law." Hence, when the Philosopher (Nic. Eth. vi, 7, § 23; and 8, $22) had distinguished Prudence into two kinds, one dealing with Universals and the other with Particulars, the latter kind differing nothing or little from Experience, he went on to say that each kind is of such excellence that he who possesses either must be deemed a person of solid Prudence; and he claimed that no less weight must be attributed to the counsels and pronouncements of the aged than to the demonstrations of the wise, inasmuch as the aged have the Eye of Experience, τῆς ἐμπειρείας ὅμμα (Nic. Ἐν τὰ; ὃ 22)4
LXXXII. When, then, we as members of Natural Societies observe in practice that some courses of conduct tend of themselves to the attainment and preservation of the ends of those societies, while other and contrary courses of conduct tend to disturb and subvert those ends, the Practical Intellect, under the teaching of this Experience, concludes that conduct of the former kind is to be followed after and conduct of the latter kind is to be eschewed. As, however, Experience is composed of particulars, the discipline of Experience takes the same course. Suppose, for example, that one has noticed how a contract of sale is upset and brought to naught, sometimes by the default of Titius the buyer, sometimes by the default of Sempronius the seller; at one time by the mistake of Caius, and at another by the mistake of Mevius; and how there arises hereout a great unfairness, and out of the unfairness arise murmurings, and out of the murmurings quarrels, and out of quarrels the break-up of societies; and how in this way want is brought about: why, then the Practical Intellect abstracts