567
[end of lecture 31]

LECTURE XXXII.

LAW NATURAL AND POSITVE.

The distinction of positive law into natural and positive, as commonly understood by modern writers on jurisprudence.

From the jus gentium of the earlier Roman Lawyers I proceed to the distinction of positive law into natural and positive, as the distinction is commonly understood by modem writers on jurisprudence.

Rationale of the distinction.

The rationale of this distinction may, perhaps, be conceived and expressed in the following manner.

The positive laws of any political community are divisible into two kinds:

Some it would probably observe as moral or customary rules, although it were a natural society (or a society not political), and although it were also in the savage state which commonly accompanies the absence of political government. For they rest upon grounds of utility which are strikingly obvious; and which extend, moreover, through all societies (natural or political, savage or refined). The positive laws, for example, which, in political societies, shield the lives of the citizens, are admitted as moral rules, and commonly are observed as such, even by the members of the natural societies which have not ascended from the savage state.

There are others of the positive laws obtaining in a political community, which it would not observe as moral or customary rules, if it were a natural society, and were also in the savage condition. For some of the positive laws obtaining in a political community, suppose that the given community is a political community; and therefore could not obtain in it if it were a natural society. Such, for example, are the positive laws which determine the powers and duties of the ministers of justice, and 568of the other political or public persons subordinate to the sovereign government.

Some, moreover, of the positive laws obtaining in a political community, would probably be useless to a natural society which had not ascended from the savage state. And others which might be useful even to such a society, it probably would not observe; inasmuch as the ignorance and stupidity which had prevented its submission to political government, would probably prevent it from observing every rule of conduct that had not been forced upon it by the coarsest and most imperious necessity.

The positive laws, therefore, of any political community are divisible into two kinds.

Some it would probably observe as moral or customary rules, although it were a society not political, and also had not ascended from the savage state. Others it certainly or probably would not so observe, if it were a natural society, and were also in the savage condition.

The positive laws, moreover, of any political community may be distinguished in the following manner:

Some are peculiar or proper to that single political community, or, at least, are not common to all political communities. Others are common to all political communities, or form a constituent part of every positive system.

But it is probable that some of the laws which obtain as positive laws in all political communities, would obtain as moral rules in any political community, although it were a natural society, and living in the savage condition. For, since there are political communities that scarcely have ascended from the savage state, it is probable that some of these laws rest upon grounds of utility which are strictly universal and also strikingly obvious: which extend through all societies (natural or political, savage or refined), and which even a natural society, in the rudest condition of humanity, could hardly fail to perceive.

Now the positive laws which are common to all political communities, and which, moreover, are universally and palpably useful, are apparently the ‘natural laws’ usually contemplated by modem writers on jurisprudence when they mean by the expression ‘natural laws’ a kind of the laws that are properly the subject of their science.

The rationale of the distinction of positive laws into natural laws and positive laws, may therefore be stated thus.

The former are common to all political societies, in the 569character of positive laws: and being palpably useful to every society whatever, they are common to all societies, political or natural, in the character of moral rules.

The latter are not common, as positive laws, to all political societies; or though they be common, as positive laws, to all political societies, they are not common, as moral rules, to all societies (political or natural).

This natural law, as positive law, is closely analogous to the jus gentium of the earlier Roman lawyers, etc.

And here I would remark that the natural law in question when considered as positive law, is closely analogous to the jus gentium of the earlier Roman Lawyers, and to any of the systems of common or general law which resemble their jus gentium. For the natural law in question is the common positive law of all independent nations; and the jus gentium of the earlier Roman Lawyers, or any of the systems of general law which resemble their jus gentium, is a common positive law of a comparatively restricted extension: being common to a limited number of independent nations, or common to all the members of a single independent nation.

Natural law of moderns, and jus gentium of Justinian’s compilations, embrace positive morality (especially international tional) as well as positive law.⁴²

But it must be remarked that the natural law of modern writers on jurisprudence (like the jus gentium or naturale which occurs in Justinian’s Compilations), is not restricted to positive laws, but comprises merely moral, or merely customary ruIes. It comprises every rule which is common to all societies, though the rule may not obtain, as positive law, in all political communities, or in any political community. And consequently, the natural law of those modern writers (like the jus gentium or naturale which occurs in those Compilations), embraces all the laws (or rules of positive morality) which are styled international laws, or the laws of nations. Or, rather, it embraces all those rules of international morality, which are not observed exclusively by a limited number of nations, but obtain, or are deemed to obtain, between all nations whatsoever.

The jus gentium, therefore, which occurs in Justinian’s Compilations, is a much larger expression than ‘the law of nations’ as meaning international law, or the law which obtains between nations. International morality is only a small part of the jus gentium in question; since it comprises every rule (be it positive and moral, or be it exclusively moral) which is common to all societies (political or natural). ‘Jus feciale’ or ‘jus belli et pacis,’ and not ‘jus gentium,’ or the ‘law of nations,’ is the name which is always given to international morality, by the Roman lawyers themselves.

Argument for the distinction of positive law and morality into natural and positive: with purposelessness of it, if general utility be the only index to Law of Deity or Nature.

570I have stated the modern distinction of positive laws (which includes a similar distinction of merely moral rules) into natural and positive (or natural and simply positive). But since the distinction, apparently, is utterly or nearly useless (though it rests upon a real difference between those laws and rules), I will now add to the foregoing statement of it, a short notice of the argument by which it commonly is maintained.

That current argument may be put in the following manner:

There are positive ruIes of conduct (legal and moral, or exclusively moral), which obtain universally, or are observed by all societies. But, since they obtain universally, they must have been made or shaped, by their human authors, on laws of the Deity or Nature which were known to those authors through an instinct. For varying and fallible reason, as merely informed and advised by general utility or expedience, could not have determined all societies to the adoption and observance of the same body of rules. And the inference is confirmed by this further consideration; and these rules are observed concurrently by unconnected societies of men who have not ascended from the savage condition; whose intelligence is scarcely superior to that of the lower animals; and whose imbecile reason, as left to the uncertain guidance of general utility, could hardly have conducted them to a perfectly uniform result.

The human authors, therefore, of these universal rules, copied them from divine originals: which divine originals were known to those human authors, not through fallible reason led by a fallible guide, but through an instinct or sense, or through immediate consciousness.

But since their human authors copied them from divine originals, which were known to those human authors through a perfectly infallible index, they are not so properly rules of human position or establishment, as rules proceeding immediately from the Deity himself, or the intelligent and rational Nature which animates and directs the universe. They are properly natural rules, or rules created immediately by Nature or the Deity, although the men who are deemed their authors have armed them with additional sanctions, legal or moral.

But there also are positive rules (legal and moral, or exclusively moral), which are not universal. And since these rules are not universal, there is no ground for inferring that they were copied from divine originals, or from divine originals as known instinctively and infallibly. They either were not copied from divine or natural originals; or they were copied from such 571originals, as conjectured by the imperfect light of general utility or experience. Consequently, they certainly or probably are of purely human position: and therefore may aptly be opposed to universal and natural rules, by the epithet of positive or merely positive.

Though I shall not examine the argument which I have now stated, I must remark that the distinction of positive rules into natural and positive seems to rest exclusively (or nearly exclusively) on the supposition of a moral instinct; or (as this real or imaginary endowment is named by the Roman Lawyers and by various modern writers), a natural reason, or a universal and practical reason.

The distinction, indeed, is not unmeaning, although the principle of general utility be the only index to the laws of Nature or the Deity. For as some of the dictates of general utility are exactly or nearly the same at all times and places, and also are so strikingly obvious that they can hardly be overlooked or misconstrued, there are positive or human rules which are absolutely or nearly universal, and the expediency of which must be seen by merely natural reason, or reason without the lights of extensive experience and observation.

Assuming, then, that general utility is the only index to the laws of the Deity, the distinction answers to a difference between positive or human rules, which certainly is not imaginary, though no one can describe it precisely. For no one (I presume) can determine exactly, what positive rules are strictly universal, and which of them are merely particular.

But if the principle of general utility be the only index to the laws of the Deity, the distinction, though not unmeaning, seems to be utterly or nearly purposeless. For every human rule (be it universal or particular) which accords with the principle of utility, must accord with the Divine Law of which that principle is the exponent. So that all positive rules, particular as well as universal, which may be deemed beneficent, may also be deemed natural laws, or laws of Nature or the Deity which men have adopted and sanctioned.

Besides, rules which are peculiar to particular countries may be just as useful as rules which are common to all countries. The laws which determine the distribution of water in hot and arid climates, or which regard the construction and preservation of embankments in countries exposed to inundation, are not less useful (although they are limited to certain regions) than the laws which have gotten the specious name of natural because they are suggested by necessities pressing upon all mankind.

572Laws imposing taxes necessary to the maintenance of political government, are not less useful than the laws which guard property or life: though the former are merely positive (as following the existence of government), whilst the latter obtain universally (in the character of moral rules), and therefore are deemed natural. Yet, so confused and perverse are the moral perceptions of the vulgar, that many an honest man, who would boggle at a theft, shall cheat the public revenue with a perfectly tranquil conscience.

A distinction of crimes into ‘mala in se’ and ‘mala quia prohibita,’ which, though utility be the only index to the laws of the Deity, might not, perhaps, be ill-founded.

If a law set by the state be pernicious or useless, may we break it without offence against the Law of God? The specific consequence of breaking the specific law, would (by the supposition) be harmless if not positively good. But a breach of a mischievous law tends (in the way of example) to produce offences against other laws which are decidedly beneficent. To import goods which are prohibited, for the absurd and mischievous purpose of protecting domestic manufactures, is a perfectly innocent act, with reference to its specific consequences. But since the importation of these tends generally to embolden smugglers, a man of a delicate conscience would hardly import them.

Now if an offence would be mischievous on the whole, although the violated law were itself useless or pernicious, it might be styled malum prohibitum, or malum quia prohibitum. The act would be malum (or an offence against the Law of God as well as the Law of Man) merely because the act had been prohibited by the latter, and because the breach of the useless or mischievous prohibition might lead to violations of beneficent obligations. If the breach of the useless or mischievous law would not be mischievous (with reference to the sum of its consequences) it would not be malum at all.

According to the principle of Utility, the distinction (if worth taking) would therefore stand thus: Mala in se are offences against useful laws: Mala prohibita, or quia prohibita, are mischievous offences against laws which are themselves useless or mischievous.

Innocuous offences against useless or mischievous laws are not mala: In other words, they are not pernicious; and therefore are not violations of the Law of God or Nature.

The distinction of crimes, made by the Roman Law into crimes juris gentium and crimes jure civili, tallies with the distinction of crimes made by modern writers into mala in se and 573mala prohibita. Offences against human rules which obtain universally, are (according to these writers) mala, or offences in se, inasmuch as they would be offences against the law of Nature or the Deity, although they were not offences against rules of human position. But offences against human rules which only obtain partially, are not, according to those writers, offences against laws of nature. Or at least, they would not be offences against laws of the Deity if they were not offences against positive law or morality. And therefore they are mala, or offences, quia prolbibita, or they take their quality of offences from human prohibitions and injunctions.

I believe that no legal consequence has been built on this last distinction, by any of the systems of positive law which have obtained in modern Europe.

‘Natural Law’ as meaning certain rules of human position; and ‘Natural Law’ as meaning some standard to which human rules should conform.

I will here advert for a moment to two of the disparate meanings which are annexed to the ambiguous expression ‘Natural Law,’ by writers on jurisprudence and morals.

Taken with the meaning which I have endeavoured to explain, it signifies certain rules of human position; namely the human or positive rules which are common to all societies, in the character of law and morality, or in the character of morality.

But taken with another meaning, it signifies the laws which are set to mankind by Nature or the Deity, or more generally, it signifies the standard (whether that standard be the laws of the Deity, or a standard of man’s imagining) to which, in the opinion of the writer, human or positive rules ought to conform. And by the confusion of the meaning which I endeavoured to explain, with the meaning which I now have suggested, the grossest contradiction and nonsense is frequently engendered.

The ambiguity is the same with that already spoken of in the last lecture with regard to the jus gentium or naturale, as the terms are employed by the classical jurists: for example, where the institution of slavery is at one time said to be the creature of the jus naturale or gentium, and at another to be repugnant to natural law; and where the jus civile is said to be the law we make when we add anything to, or detract anything from, the law of nature.⁴³

Natural Rights.⁴⁴

Before I conclude, I will offer a few remarks upon Natural Rights. (v.v.)

Natural Rights would naturally signify the rights which 574correspond to Natural Law: Rights which are given by all or by most positive systems, and which would exist as moral rights though government had never arisen.

But by the term ‘natural rights,’ is frequently meant the rights and capacities which are said to be original or innate.

Now original or innate rights, and original or innate capacities to take or acquire rights, are those rights and capacities which a man has as simply being a man, or as simply living under the protection of the state. Such (for example) is the right which Blackstone styles the right to personal security, the right to reputation, or the capacity to acquire rights by conveyance or contract. Rights of this class are styled original or innate as opposed to acquired. They reside in the party without any other title or investitive event than the mere fact of his being a citizen of the community.

All other rights and capacities originate in some particular incident or mode of acquisition, and are again divided into those which arise out of some particular status or condition, and those which are said to arise ex speciali titulo, as by a contract; the word title, or mode of acquisition, being confined to those incidents which do not, uno ictu, give a whole set of rights and capacities, such as constitute a status.

The rights called natural rights in this acceptation of the term, are said to be born with a man, for the reason which I have just stated. But natural rights, thus understood, are totally different from natural rights in the other sense which I before explained, namely, rights which would obtain as sanctioned by positive morality, although government had never existed. The right to reputation, for example, could hardly consist in a savage condition. Yet the right to reputation is a natural right in the sense in which natural rights are said to be innate or opposed to acquired rights.

Blackstone has confounded natural rights as taken in these two distinct senses; and because he has styled natural rights (in the sense of rights not acquired by a particular incident) the absolute rights of persons, he has supposed them to belong to the law of persons, although, as I shall shew hereafter, rights of this class belong pre-eminently to the law of things. I suppose that he called them absolute rights of persons for the same reason which has induced others to call them natural or inherent rights; namely, because they are not dependent on the happening of any particular incident, but we acquire them merely by being born.

575Notes.

The objections to applying the term ‘Law’ to natural or revealed rules are two: 1st, As such rules they are not law; although it may be incumbent (morally or religiously) upon the Legislator or judge to lend them the legal sanction, and although they become law as soon as they receive it. 2ndly, Many of these natural rules and revealed principles may not be fit for law, although their observance as moral and religious rules is necessary to the well-being of society. These objections hold, assuming that there are any such rules.—Marginal Note in Falck, p. 100.

The tendency to append International Law to the so-called Law of Nature, illustrates the character of the latter. International law (so far as it is independent of usage) is a branch of Ethics: i.e. of Natural Law. But as municipal law is broadly distinguished from Ethics, even those who admitted the existence of a natural law were unconsciously led to touch upon it but slightly in their expositions of law municipal. Consistently with the hypothesis of a natural law, an exposition of a municipal system should divide it into two parts: viz., that which, as conforming with natural law is (not ought to be) Law; and that which, as conflicting with law natural, is not Law.—Marginal Note in Falck, § 139.

The ancient idea of a Law of Nations (Völkerrecht) is connected with the assumption of a Law of Nature which is universally binding, independently of political obligation.—Falck, § 46.

International Law, according to the above-mentioned notion, supposes a Law of Nature: i.e. A law obligatory upon all mankind, but wanting the political sanction. If there be no law without that sanction, the admitted maxims for the conduct of international transactions are not Law, but Ethics. Each State may, however, adopt an International Law of its own; enforcing that law by its own tribunals, or by its military force (at least), as against other nations.

This, however, is not International, but National or Civil Law; i.e. in regard to the sanction. For in regard to the subject., and (where there is good faith), to the object, it may be styled international.

If the same system of International Law were adopted and fairly enforced by every nation, the system would answer the end of law, but, for want of a common superior, could not be called so with propriety. If courts common to all nations administered a common system of International Law, this system, though eminently effective, would still, for the same reason, be a moral system. The concurrence of any nation in the support of such tribunals, and its submission to their decrees, might at any moment be withdrawn without legal danger. The moral system so administered would of course be eminently precise.—Marginal Note in Falck.