THE MATURE NATURAL LAW

The later seventeenth century saw the further development of the civil law in the form of natural law. In the earlier part of the century the whole of Europe was wracked by warfare and there was a yearning for an impartial law that transcended human passions and antagonisms.

Sometimes statements taken from Justinian's texts were held out as general truths which applied even outside a legal context. Leibniz himself is fond of quoting such statements, in the context of moral dis­course. For example, in his Codex iuris gentium of 1693 he says,

The doctrine of law, taken from nature's strict confines, presents an immense field for human study. But the notions of law and justice, even after having been treated by so many illustrious authors, have not been made sufficiently clear. Right is a kind of moral possibility and obligation a moral necessity. By moral I mean that which is equivalent to natural for a good man: for, as a Roman juris­consult has well said, we ought to believe that we are incapable of doing things which are contrary to good morals.

This is a strange observation, for clearly we do believe that we are capable of acting against morality. The jurist to whom Leibniz refers is Papinian and the text D.28.7.15. The original legal problem concerned

a will in which the testator instituted his son as heir, subject to a condi­tion. The rule was that such a condition was valid only if the son had the power to carry it out. An institution subject to a condition which he was unable to carry out was regarded as a failure to institute him, so that the whole will failed. Papinian's problem concerned the effect of a con­dition which required the son to do something immoral. Papinian held that such a condition invalidated the will as if it were a condition not within the son's power. He explained his ruling with the remark that ‘it should not be understood that we have the power to do acts which harm our social duty and... are contrary to good morals'.

Papinian's concern was that the law should not both condemn an act and also require the doing of that act as a means of satisfying a condi­tion. That is how his statement had been explained by Cujacius, for example, who calls it ‘an expression worthy of a Christian' (In lib. XVI quaestionum Pap. Comment., Opera Omnia 1614, iv.346). In the intellectual climate of the seventeenth century, however, a jurist such as Papinian, although a pagan, was seen as an upholder of the unchanging moral character of law. As he had suffered for his beliefs, when he refused to condone the Emperor Caracalla's murder of his brother, the poet Andreas Gryphius in 1659 made Papinian the hero of a moralist drama.

The identification of natural law with moral philosophy was confirmed by Samuel Pufendorf, whose appointment to the first chair in the Law of Nature and of Nations (in the faculty of philosophy at Heidelberg in 1661) marked the formal recognition of natural law as a distinct discipline.

Dealing first with man's duties as a man, Pufendorf argued that, by making man a social and rational being, God created a natural law for him, which was expressed in the Gospel injunctions to love God and to love one's neighbour as oneself. Man as a man thus has three basic

The mature natural law

109 duties, to God, to himself and to other men. They form the first princi­ples from which all detailed rules must logically follow. The first duty of man to other men is the obligation that arises when he gives his word to another. Subsequently come his duties in regard to the property of others and the contracts that concern property, especially sale. As a citizen, man's duties arise from the associations to which he belongs, ranging from the household to the state. The relationships that derive from the household are those of husband and wife, parent and child and master and servant (in a pre-industrial society, servants were considered more as family than as subjects of a contract of employment).

The search for a natural order deduced geometrically from Christian principles was vigorously continued by the French scholar Jean Domat in Les lois civiles dans leur ordre naturel (1689-94).

Persons and things are reduced to a brief description of different kinds of persons and things as they exist in nature and according to the civil law. The rest of private law is then grouped around the two heads of obligations (engagements) and successions. Obligations may be vol­untary and involuntary. The first category includes not only contractual obligations but also those arising from usufructs and praedial servitudes. The second category includes delictal obligations. The natural lawyers reduced the various kinds of delict in Roman law to the general princi­ple that one was liable for all loss caused to another by one’s wilfulness or fault. Involuntary obligations also, however, included personal duties that Justinian’s Institutes classed as quasi-contractual. They were essen­tially all personal duties not falling under the heads of contract, delict or quasi-delict, and included the duties of tutors to their wards and the duties of common owners to each other, which had previously been treated under the heads of persons and property respectively. Domat also subsumes under the head of obligations those legal elements which supplement obligations, such as real and personal security, possession and prescription. The other main part of private law, successions, more predictably deals with wills and intestacy and testamentary institutions, such as trusts (fideicommissa). Curiously, Domat’s scheme was to have

more following in Germany than in France and is the ancestor of the later Pandectist order and of the German civil code.

In the first half of the eighteenth century, natural law became even more abstract, a series of logical deductions from the rational and social nature of man. The most prominent exponents were the Germans Christian Thomasius (1655—1728) and Christian Wolff (1679—1754). Thomasius played down the utility of Roman law, arguing that barely a twentieth part of the Digest had any application in German courts and those parts which did have a practical relevance were essentially derived from natural law. Thomasius deplored the blurring of the distinction between law and morality and held that natural law constituted pieces of advice (consilia) to the enlightened ruler, who would supply the element of compulsion that turned them into law. Wolff, on the other hand, produced an elaborate mathematical system of natural law, as a series of moral duties, all rationally deduced from general moral princi­ples, that were owed by everyone in society (lus naturae methodo scientifica pertractatum, 8 parts 1740-8).

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