The Natural Law. Heinrich A. Rommen

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СКАЧАТЬ of the jurists, “responding,” i.e., imparting legal information and counsel to the judges and litigants alike,¹⁷ involved for the jurists this deeper kind of intellectual labor. Thus Stoic philosophy may with considerable justice be called the mother of Roman jurisprudence. The latter, to keep up the metaphor, sucked in the doctrine of the ius naturale with its mother’s milk.

      Down to the time of Cicero neither science nor the natural-law doctrine had exercised any practical influence on Roman law. Then, however, theory broke in along a broad front. For Gaius, Paulus, and Marcian the ius naturae is a norm which from the very beginning lies forever imbedded in the nature of things; since it also reveals itself in things, it can be discovered in them. The Stoic idea of an eternal law of the order of the universe was present to their minds. This law emanates from the logos, which in turn is itself the law of things. The logos, moreover, expresses itself conceptually in the nature of things, and it destines them for harmony with the universe. Hence wherever two beings, whether man and thing or two men, find themselves related to each other, a rule covering what is naturally and essentially conformable to this relationship is present in the law of the logos—and is at the same time expressed a priori in the very nature of the correlates. A law rules as an ordering force in the natura rerum, in the world of both irrational and rational creatures.

      This became of practical importance as a norm for positive legislation and for the deciding of cases for which the positive law contained no norm. But the natural law especially became the magic formula whereby the jurists in their responsa replaced the ancient law, which had by then become inadequate, with new law introduced under the concepts of lex naturae and aequitas. This they accomplished by means of the edict of the magistrates who were under their influence as well as through the imperial constitutions. In addition, the new law had in its favor the splendor of inherent truth or reason, the charm of simple conformity with nature, and the grandeur of transcending peoples and ages. But to the jurists aequitas was the echo of the lex naturae, the command of an inner voice through which speaks the ratio of the natura rerum immanent in things. Aequitas is the legal conscience which speaks even when a positive norm is at hand, for it is the “meaning” of the positive law. Adjudication, or applying the law, is not a logical and automatic process of subsuming under a general norm: it is interpretation in the light of aequitas.

      As material contents of the law of nature the jurists designated such things as the rules touching kinship (marriage—family), good faith, adjustment or weighing of interests (suum cuique), the real meaning of the actual will of the legal subject as opposed to the formalism of the law governing expression of will. To these may be added the original freedom and equality of all men, and the right of self-defense (vim vi repellere).

      Furthermore, the jurists, e.g., Paulus, Ulpian, and Marcian, regarded the ius civile as possessing special force. Yet even according to them the ius naturae must prevail in case of conflict: what the ius naturae forbids, the ius civile may not allow; nor may the ius civile repeal such prohibition (compare the scholastic teaching: the negative precepts of the natural law are forever immutable). To be sure, this question occasioned no real trouble, since the responsa of the jurists possessed, so to speak, legislative force. Thus their doctrine of the ius naturae forthwith gained a footing, along with the finding and the judgment, in the responsa. It also took on positive form in the lex casus, in accordance with which the magistrates were thereafter to proceed in similar cases. In like manner, too, the royal judge in Anglo-Saxon lands, bearing the law, i.e., the natural law, “in the shrine of his breast,” in the very act of handing down a decision conferred positive character upon the natural law in the rule of the case.

      The Roman world empire, with its toleration of the legal institutions of subject peoples, placed in the hands of the jurists still another important source of knowledge. This was the unwritten ius gentium, which arose out of actual practice and was substantially “found” by the jurists and magistrates. The ius naturale, derived from metaphysical and ethical reflection, appeared identical with the universal element in the legal systems of individual peoples. As the idea of law thus issued from ethical speculation as a teleological apriorism for the positive law, so it emerged as concept of law in the positive law through abstract treatment of the legal systems of particular peoples. This led to the ius gentium. Consequently the results which philosophical thinking arrived at by way of deduction from logos, ratio, and rerum natura turned out to be identical with the idea of law in the systems of positive law. These in turn are products of the universal, law-creating societas humana and of reason that governs in it.

      The equating of ius naturae and ius gentium that is met with even in Gaius has here its origin. Ulpian, on the contrary, defined ius naturale as “that which nature teaches to all animals” (quod natura omnia animalia docuit); but this is the ordo rerum. The ius gentium thereupon becomes that part of the ius naturale which has force for mankind.¹⁸ This, however, is a product of the will of universal reason, not of the will of some particular historical lawgiver.

      The Roman jurists still lacked a clear distinction between law and morality. Even the norm “worship must be paid to God” pertained to law, and so did “live honorably.” To the jurists, indeed, jurisprudence was “a knowledge of things divine and human, the science of what is just and unjust.”¹⁹

      But the greatest intellectual gain stemmed directly from Stoic ethics. The Greeks, except for a few revolutionary Sophists, had regarded the citizens of the polis as the sole subjects of law. For the Roman jurists, on the other hand, it was not merely the Roman citizen who was in the true sense a subject of law, but every member of human society (the civitas maxima of the Stoics). Therefore they held that man as such is possessed of natural rights, which he continues to retain even in a state of slavery. Slavery was thereby, in contrast to Aristotle’s doctrine, a positive-law institution which could and should be displaced in keeping with being and oughtness.

      Even after the revival of imperial sovereignty in the later Roman Empire (under Justinian, A.D. 527–65), the natural law remained the first, supreme, and true legal norm: the basic law of human relations, the model and ideal set before the eyes of the lawmaker for realization. But it was no longer such for the judge, who was henceforth dependent upon the law, or for the citizen. For these the positive law alone had force. Nevertheless the idea of ius naturae had so strong a hold that, in contrast with modern absolutism, as, for instance, in the doctrine of Hobbes, the lawmaker remained subject to the natural law not merely as an empty form, but as a system of content-laden norms.

      It remains an eloquent proof of the eternal truth of the doctrine of natural law that Roman law, the finest legal system yet developed in the West,²⁰ enveloped the natural law in its deepest thinking and taught it in its noblest terms.

      Like Stoic philosophy, Roman law also passed on this idea to the new Christian era and to the age of scholastic philosophy, which as true philosophia perennis²¹ has remained the permanent home of the natural law. Scholastic philosophy has been the place of sanctuary for the natural law when arid positivism has driven the latter out of secular jurisprudence. Yet it has always come back into jurisprudence whenever the human mind, weary of the unsatisfying hunt for mere facts, has again turned to metaphysics, queen of the sciences.”²²

      Everyone is at least familiar with the distinction between legal norm and moral law, even though he does not completely separate them. It must surely have come as something of a surprise, then, that in antiquity such a distinction, let alone a separation, was altogether wanting. Aristotle in his treatise on ethics says that justice, which in this context he takes in the narrower sense, is directed “to another,” and, as essentially concerning the social order, governs the relations of man with his fellow man. But he speaks still more frequently of justice as the general virtue which embraces all others, makes man virtuous, and guides him to the highest goal. He likewise asserts, on this point following Socrates, that the just man is obedient to the laws, i.e., to the written laws and to the unwritten mores. Among these he includes the relations of man to himself, e.g., the curbing of the passions, as well as the ceremonial law and reverence for the divine.

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