NATURAL LAW
63 The idea of a law based on human nature is very ancient, and appears in two forms. In ancient Greece, natural law was the body of ideal unwritten norms, as opposed to the actual and very imperfect statutes of everyday life.
In Rome, positive law was presented as a distortion of a primitive natural order: slavery therefore did not belong to natural law but to the ius gentium, as it was the consequence of wars. For the Romans, natural law corresponded to the law of nature: the coupling of animals and the marriage of human beings, for example, expressed a universal law to which men as well as animals were subject. In the Christian Middle Ages natural law had religious connotations and was identified with a divine law distinct from human laws (and which those laws could not transgress). Yet, on the other hand, many lawyers were convinced that natural law, conceived as a perfect and eternal guiding principle, was identical with Roman law, with ratio scripta (�written reason’). Other lawyers disagreed. They regarded the Corpus iuris, like other legal systems, merely as a historical product without eternal value, imperfect and capable of improvement.So in modern times a new conception of natural law was formed.
It still made reference to the nature of man and society, but it differed from the earlier conceptions in several respects. It rejected the conception of natural law as an ideal of justice with a significance greater than the positive legal order. On the contrary, it conceived natural law as a body of basic principles from which positive law ought to be directly derived: it was an applied natural law. The modern School of Natural Law refused to derive its principles from external systems such as divine law or the Corpus iuris. By means of rational study and criticism of human nature, the authors of this school searched for the self-evident and axiomatic principles from which they could deduce all other rules more geometrico.
The title iaw of reason’ (Vemunftrecht) is therefore more accurate than �natural law’, which has other connotations.The first great exponent of the modern School of Natural Law was Hugo Grotius (d. 1645), author of Mare liberum (1609) and De iure belli acpads Hbri ires (1623). In these works Grotius attempted to find a foundation of the law of nations which would be universally recognized. He discovered it in the indispensable notion of natural law: certain basic rules had necessarily to be accepted by all men and civilized states, for those rules corresponded to principles of human nature and therefore constituted the common base shared by all men. These rules existed independently of ius divinum (divine law), for they were valid even if it were admitted that God did not exist. This argument enabled Grotius to defeat his religious opponents, because natural law could unite Catholics, protestants and even the devotees of a �natural religion’. These rules were also independent of Roman law (Grotius sharply distinguished this system from Roman law) for the Corpus iuris recognized only the universal authority of the emperor and so could not supply the basis needed to regulate relations between sovereign states. Furthermore, these rules were independent of any legislator, for no supra-national authority could now claim to impose positive norms of law on the states of modern Europe. This formulation of the principles of a law of nations based on human wisdom and understanding already made Grotius a member of the School of Natural Law (although in the area of private law it was later authors who would develop his ideas).[20] He
Enlightenment, natural law and the modern codes 119 cannot, however, be considered a true philosopher of natural law, for he was still influenced by such sources as the Bible, and various ancient texts (as a humanist he had an excellent knowledge of Latin literature), including the texts of Roman law.4
A decisive step was taken by Samuel Pufendorf (was also the author of popular works which argued that the law must be modernized.
In these he criticized obscurantism, and the inhumanity of judicial torture and witch-hunts.^ He pronounced himself resolutely in favour of new, rational legislation freed from the absolute authority of ancient (particularly Roman) law.Christian WolfF {d. 1754) was a polymath who taught, among other things, philosophy, theology and mathematics. His main legal
« Not until the eighteenth century did respect for Roman law decline and even turn to open criticism. Leibniz (d. 1716), for instance, still treated the Corpus iuris as the basis for his projects of codification.
s Dissertatio de tortura e foris Christianis proscribenda (1705); Dissertatio de crimine magiae (1701).
work was entitled Jus naturae methodo Scientificapertractatum (8 volumes, published between 1740 and 1748). The title declares a programme, for Wolff had already advanced the view that the principles of law must be established by modern scientific method.[21] [22] It is characÂteristic of Wolff’s work that axioms of natural law are elaborated by means of detailed concrete examples, and that scientific method is used to deduce all rules of law strictly according to the principles of geometric proof (Spinoza had provided the model for this). As the author himself put it in 1754, â€?all obligations are deduced from human nature in a universal system’.’ It was Wolff’s work which served as the point of orientation for later authors of the School of Natural Law. It was his method which influenced the judgments of courts into employing logical deduction from fundamental norms and general concepts, rather than the example of precedents. The practice of law in continental Europe today is still shaped by Wolff’s conception of law as a discipline and as a closed logical system.[23] The work of these German lawyers was known throughout Europe. Their works were regarded as authoritative particularly in France, although the School of Natural Law produced few French authors. Montesquieu’s Esprit des Iois was not a treatise on natural law, but a philosphical and comparative study of the role of legislation and types of public institutions. Montesquieu attached particular imÂportance to national character, and to climate and geography as factors determining the diversity of legal systems. In the Republic of the United Provinces there were also lawyers who reacted against the absolute authority of the Corpus iuris. Their concern was largely with the contradictions and excessive subtleties of the civilians, and with the consequent lack of legal clarity and security: there was no longer a Roman legislator in a position to promulgate binding norms, and even the communis opinio of scholars (so far as it existed) had no binding force. Thus, Willem Schorer (d. 1800), who was in favour of a codification of the law of the provinces of the Netherlands, and wrote annotations to, and produced a new edition of, Grotius' Inleidinghe, made violent criticisms of the tradiÂtional learning of Roman law, especially in his treatise â€?on the absurdity of our current system of legal doctrine and practice’ (1777), which caused an animated controversy." Thejurist himself, who was president of the Council of Flanders at Middelburg in Zeeland, did not mince his words: according to him, Roman law was packed with â€?insipid subtleties, unwarranted Cavillations and useless fictions’; its sources were â€?a corpus ineptiarum, commonly known as a corpus iuris,; and the author regretted that the â€?written law’, which he described as a wandering star, had struck Europe like a bolt from the blue.12 In the Austrian Netherlands a typical representative of the law of the Enlightenment was Goswin de Fierlant (d. ,, Vertoog over de Ongerijmdheid van het samenstel o∏z,er hedendaagsche regtsgeleerdheid en praktijk. ,9 L. P. van de Spiegel, Verhandeling over den oorspτong en de historic der Vaderlandsche Rechten (Goes, 1769), and H. CohenJehoram, Over codificatie. Van Portalis tot na Meijers (Deventer, 1968), 2. '3 See Jan van den Broeck, J. B. C. Verlooy, Vooruitstrevend jurist en politicus uit de 18e eeuw (Antwerp and Amsterdam, 1980).