CHAPTER IV.

WHETHER THERE EXISTS ANY JUS NATURÆ ET GENTIUM, OR NATURAL LAW IN THE SENSE OF THE JURISTS? -HOW FAR IS IT DISCOVERABLE?-TO WHAT EXTENT, IS THE STUDY OR CULTIVATION OF SUCH LAW, AVAILABLE FOR THE IMPROVEMENT OF THE POSITIVE LAWS OF STATES?

FROM the preceding investigation of the distinction between ethics and law, between morality and legality, and of the principles of justice, reciprocity, and general expediency, as the foundation of coercive law, we shall be enabled more clearly to ascertain, whether, and to what extent, there exists a Jus naturæ et gentium, such as the great majority of jurists have contemplated and described, as the source and basis of all positive law; or whether, from the great diversity of views and opinions, which we have seen to have been entertained by jurists, with regard to the foundation, the general principles, and the particular rules of the natural law, we are to conclude that no such law exists.

As we have already remarked at some length, most of the jurists of modern times, when they had exhausted their labours in the elucidation of the Roman law, and were led, by a comparison of the ancient and modern systems, to cultivate law as a science, appear to have borrowed, though in a materially different sense, the Jus naturale et gentium of the Roman lawyers; and thus introducing an alteration in the import and application of those Roman terms, which occasioned a good deal of confusion of

ideas, they appear also, in the cultivation of the modern Jus naturæ et gentium, to have adopted erroneous views, which were long, and very generally prevalent. Instead

of viewing mankind, as they actually existed in society, on the face of this globe, they fancied, by abstraction, a state of nature, antecedent to the union of mankind in communities, and which never had any real existence. They then deduced certain rules, which appeared to arise from, or to be applicable to, this ideal state; giving these rules the appellation of the law of nature. And they next assumed these rules as a positive code; and proceeded to judge, according to this imaginary standard, of the actions and institutions of men, as united in civil society.

Such rules deduced from this imaginary state, different from the actual state, besides being deductions from limited experience, a defect, to which all the intellectual efforts of man are liable, had the still farther, but certainly avoidable, defect, of being founded on fiction. It is, therefore, not surprising, that the adoption of such rules should have led to many errors, and to many idle and unprofitable discussions, whether such actions were enjoined or prohibited, whether such institutions were sanctioned, or not, by this original law of nature. And in this sense of the term, the Jus naturæ appears to have been justly exploded, by the philosophic jurists of the present age, in Britain, not only by Bentham and his followers, but also by lawyers of more practical, if not sounder views; in Germany, not only by the philosophers Kant and Fichtè, but also by the very learned and able professors of law, Hugo and Savigny; and in France, by Charles Comte and Lerminier.

We have also seen, that the generality of modern jurists have erred, not only in directing their observation to an unreal state of humanity, but also in their mode of investigating the rules of the law of nature, so far

as deducible from the actual state of mankind on this terrestrial globe. Instead of attentively observing mankind, as individually constituted, in their relations to each other, and in the circumstances in which they are placed on earth, and drawing such conclusions as this observation might warrant, these jurists either held the maxims of the Jus naturæ to be innate or connate, and engraved on the hearts of all men; or if that doctrine did not appear quite tenable, or consistent with experience, they held these principles to be somehow cognoscible abstractly, a priori, and metaphysically determinable through the powers of the human mind; and when thus discovered or ascertained, or rather gratuitously and arbitrarily assumed, they held these abstract general principles, to embrace and infer, as necessary consequences, all the practical rules in detail, requisite for the regulation of the intercourse of men, whether as members of the same state, or as members of separate communities.

It

Into such a mode of investigation, a priori, modern jurists appear to have been led from various causes. may partly perhaps have arisen from the habits of abstraction produced by the doctrines of the Aristotelian philosophy, previously so prevalent in the middle ages. It may have arisen partly perhaps from their having had transmitted to them in the corpus juris of the Romans, a general digested system of the rules of private law at least, which had grown up in the practical experience of a civilized and enlightened people. This habit of a priori reasoning may also perhaps have been increased, if not produced, partly by the greater facility of imagining abstract principles, and of adapting facts to these principles, than of carefully observing facts, and deducing the general conclusions they warrant; partly by the disposition to generalization, and simplicity of system, and partly by the pride of origi

nality of thought, and intellectual dominion, which experience shows to be so alluring and attractive to superior minds. Lastly, this mode of investigation, a priori, seems also to have partly originated in the opinion of the greater certainty that attends mathematical truth, which is mere abstract consistency, than what is produced by the evidence of physical fact; as Wolfius appears to have thought, he could make the rules of the Jus naturæ more certain, by dressing them up in the garb of quasi-mathematical definitions and demonstrations. Whatever, however, may have been the causes of its adoption, the result of such a mode of investigation could not well be other, than the rather distressing diversity of opinion on this subject, which we formerly noticed.

But although jurists may thus have erred in searching a priori for a Jus naturæ, as the prototype in abstraction of all possible positive law, it by no means follows, as some of the older modern jurists, such as Hobbes, maintained, or as even Mr Bentham, and some eminent continental lawyers of the present day, appear to conclude, that such a Jus naturæ has no existence whatever.* Indeed, for a being of such very limited knowledge, as man, positively to deny the existence of relations among external objects, and events, as co-existent, or as consecutive and in succession, because these relations, or events, are not immediately perceived by him, is rather presumptuous, and at any rate unphilosophical. And the more scientific mode of proceeding seems to be, to ascertain, whether the laws of nature, in the limited sense of the jurists, although not intuitively perceived, may not be discovered by the same process of

* Traités de Legisl. Civ. et Pen. ch. xiii. § 10. Bentham's Works, Part II. p. 300, Part IX. p. 160. Themis, ou Bibliotheque du Jurisconsulte, Vol. IX. pp. 393, 394.

observation, experience, and induction, by which the laws of the material world, mineral, vegetable, and animal, have been discovered and classified, and the physical sciences, as they are usually called, so successfully cultivated.

Although, amid the great diversity of views and opinions, which we have seen to have prevailed among jurists, it is rather difficult to form a distinct or precise notion of what they denominated natural law, it is manifest, that in the sense in which they employed this term, it is confined to human actions. Now these actions, within the sphere of the powers delegated to men by their Creator, during their existence on this earth, may be viewed, either as other physical events of mind or matter, or as emanating from, and attributable to the individual agents.

In the former point of view, it is plain from experience, that all the events and changes in this terrestrial world, in which man is placed, as well as his own corporeal and mental frame, are regulated by certain physical laws; the same or similar causes uniformly producing the same, or similar effects; and the human mind being, by its construction, adapted to such a scene, by various dispositions and faculties, such as the instinctive belief, that the future course of events will resemble the past. It is also manifest from experience, that to the operation of these laws, men are in a great measure subjected; that over a great proportion of these external events, they have no control; and that even, where they have the power and choice of different modes of action, certain consequences inevitably follow the one course of action, or the other. Nor are such laws observable merely in the conduct of the individual; they regulate also the conduct of men associated in communities or states. They circumscribe, affect, and so far regulate, all the various institutions and establishments for the