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And he immediately adds the judgment of the chorus, (which consisted of women, and these too barbarians,) approving what he said.
In order to give proofs on questions respecting this Natural Law, I have made use of the testimonies of philosophers, historians, poets, and finally orators. Not that I regard these as judges from whose decision there is no appeal: for they are warped by their party, their argument, their cause: but I quote them as witnesses whose conspiring testimony, proceeding from innumerable different times and places, must be referred to some universal cause; which, in the questions with which we are here concerned, can be no other than a right deduction proceeding from the principles of reason, or some common consent. The former cause of agreement points to the Law of Nature; the latter, to the Law of Nations: though the difference of these two is not to be collected from the testimonies themselves, (for writers everywhere confound the Law of Nature and the Law of Nations, but from the quality of the matter. For what cannot be deduced from certain principles by solid reasoning, and yet is seen and observed everywhere, must have its origin from the will and consent of all. — (De Jure Belli ac
AN ACCOUNT OF THE SO-CALLED NATURAL LAW Natural Law is the Dictate of Right Reason, indicating that any act, from its agreement or disagreement with the rational nature has in it a moral turpitude or a moral necessity; and consequently that such act is forbidden or commanded by God, the author of nature.
Acts concerning which there is such a Dictate, are obligatory, or are unlawful, in themselves, and are therefore understood as necessarily commanded or forbidden by God; and in this character, Natural Law differs, not only from Human Law, but from Positive Divine Law, which does not forbid or command acts which, in themselves and by their own nature, are either obligatory or unlawful; but, by forbidding
them makes them unlawful, by commanding them makes them obligatory. ...
Natural Law is so immutable that it cannot be changed by God himself. For though the power of God be immense, there are some things to which it does not extend: because if we speak of those things being done, the words are mere words, and have no meaning, being self-contradictory. Thus God himself cannot make twice two not be four; and in like manner, He cannot make that which is intrinsically bad, not be bad. For as the essence of things, when they exist, and by which they exist, does not depend on anything else, so is it with the properties which follow that essence: and such a property is the baseness of certain actions, when compared with the nature of rational beings. And God himself allows himself to be judged of by this rule.
That there is such a thing as Natural Law, is commonly proved both a priori and a posteriori; the former the more subtle, the latter, the more popular proof. It is proved a priori by shewing the agreement or disagreement of anything with the rational and social nature of man. It is proved a posteriori when by certain or very probable accounts we find anything accepted as Natural Law among all nations, or at least the more civilized. For a universal effect requires a universal cause: now such a universal belief can hardly have any cause except the common sense of mankind. - (De Jure Belli ac Pacis, Bk. I, ch. i, 88 10, 12.)
AN ACCOUNT OF POSITIVE LAW
Another species of Law is Positive (Instituted or Voluntary) Law, which derives its origin from will and is either human or Divine. Human Positive Law includes Civil Law, which proceeds from the power of the state, the Law of Nations, which receives its binding force from the will of all nations or of many, and Law which does not emanate from the power of the state though subject to it, such as the commands of a father or a master.
Divine Positive (Instituted or Voluntary) Law originates from the Divine will in such a way that God does not will it because it is just, but it is just because God wills it. This Law is given either to the whole human race or to one people. To the whole human race we find Law was thrice given by God at the creation, after the flood, and through Christ. These three Laws bind all men as knowledge of them is acquired. To the Hebrew people God gave a Law peculiar to themselves, which therefore does not bind other peoples. — (De Jure Belli
. ac Pacis, Bk. I, ch. i, 88 13-16, condensed and to some extent paraphrased.)
3. Excerpts from Samuel Pufendorff, 1632-1694
NATURAL LAW AND ITS CLAIMS It follows that we make enquiry into that most general and universal rule of human action, to which every man is obliged to conform, as he is a reasonable creature. To this rule custom hath given the name of Natural Law, and we may call it likewise the Law Universal or Perpetual, the former in regard that it binds the whole body of the human race, the latter because it is not subject to change, which is the disadvantage of Positive Laws. — (De Jure Naturæ et Gentium, Bk. II, ch. iii, $ 1.)
NATURAL LAW SUFFICIENT FOR NATIONS: No POSITIVE
Law NEEDED BY THEM There is still one question behind which requires our determination, whether or no there be any such thing as a particular and positive Law of Nations, contradistinct to the Law of Nature. Learned men are not come to any good agreement on this point. Many assert the Law of Nature and the Law of Nations to be the very same thing, differing no otherwise than in external denomination. Thus Hobbes divides Natural Law into the Natural Law of Men and the Natural Law of States, commonly called the Law of Nations. He observes that “the precepts of both are the same; but forasmuch as States when they are once instituted assume the personal properties of men, hence it comes to pass that what, speaking of the duty of particular men, we call the Law of Nature, the same we term the Law of Nations, when we apply it to whole States, Nations, or Peoples.” This opinion we for our part readily subscribe to. Nor do we conceive that there is any other voluntary or Positive Law of Nations properly invested with a true and legal force and obliging as the ordinance of a superior power. (De Jure Naturæ et Gentium, Bk. II, ch. iii, $ 23.)
4. Excerpts from Emerich de Vattel, 1714-1767
THE NATURAL OR NECESSARY LAW OF NATIONS Nations being composed of men naturally free and independent, and who, before the establishment of civil societies, lived together in the state of nature, nations, or sovereign states, are to be considered as so many free persons living together in the state of nature.
It is evident from the Law of Nature, that all men being naturally free and independent, they cannot lose these blessings without their own consent. Citizens cannot enjoy them fully and absolutely in any state, because they have surrendered a part of these privileges to the sovereign. But the body of the nation, the state, remains absolutely free and independent with respect to all men, or to foreign nations, while it does not voluntarily submit to them.
Men being subject to the Laws of Nature, and their union in civil society not being sufficient to free them from the obligation of observing these laws, since by this union they do not cease to be men; the entire nation, whose common will is only the result of the united wills of the citizens, remains subject to the Laws of Nature, and is obliged to respect them in all its proceedings. And since the law arises from the obligation, the nation has also the same laws that nature has given to men, for the performance of their duty.
We must then apply to nations the rules of the Law of Nature in order to discover what are their obligations, and what are their laws; consequently the Law of Nations is originally no more than the Law of Nature applied to nations. But as the application of a rule cannot be just and reasonable, if it be not made in a manner suitable to the subject; we are not to believe that the Law of Nations is precisely, and in every case, the same as the Law of Nature, the subjects of them only excepted; so that we need only substitute nations for individuals. A state of civil society is a subject very different from an individual of a human race; whence, in many cases, there follow, in virtue of the Law of Nations themselves, very different obligations and rights; for the same general rule applied to two subjects cannot produce the same decisions, when the subjects are different; since a particular rule that is very just with respect to one subject, is not applicable to another subject of a very different nature. There are then many cases in which the Law of Nature does not determine between state and state, as it would between man and man. We must therefore know how to accommodate the application of it to different subjects; and it is the art of 'applying it with a justness founded on right reason, that renders the Law of Nations a distinct science.
We call that the Necessary Law of Nations that consists in the application of the Law of Nature to nations. It is necessary, because nations are absolutely obliged to observe it. This Law contains the precepts, prescribed by the Law of Nature to states, to whom that Law is not less obligatory than to individuals; because states are composed of men, their resolutions are taken by men, and the Law of Nature is obligatory to all men, under whatever relation they act. This is the Law which Grotius, and those who follow him, call the Internal Law of Nations, on account of its being obligatory to nations in point of conscience. Several term it the Natural Law of Nations.
Since then the Necessary Law of Nations consists in the application of the Law of Nature to states, and is immutable, as being founded on the nature of things, and in particular on the nature of man; it follows, that the Necessary Law of Nations is immutable.
Whence, as this Law is immutable, and the obligations that arise from it necessary and indispensible; nations can neither