Natural Law

An Introduction to Legal Philosophy

Alexander Passerin d'Entreves

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351503495
• Edition: 3
• Topic: Jura
• Subtopic: Rechtswissenschaft

This is the classic study of the history and continuing philosophical values of the law of nature. D'Entreves discerned three distinct sources that have contributed to the development of natural law: Roman law teachings, Christian beliefs regarding law, and egalitarian and revolutionary theories of the Enlightenment. Now regarded as a classic work, Natural Law has exercised considerable influence over the course of Anglo-American legal theory in the past forty years. The statements of Clarence Thomas during his 1991 Senate confirmation hearings show that the law of nature still holds powerful appeal in defining judicial rules.In the new introduction, Cary J. Nederman points out both the contemporary value and the historical significance of Natural Law. He also provides the biographical as well as intellectual context for d'Entreves immense accomplishments. This volume is essential reading for students of legal history, political theory, and philosophy. It will also be of interest to historians.Few texts provide as concise or as cogent an introduction to natural theory as Alexander Passerin d'Entreves' Natural Law: An Introduction to Legal Philosophy.... Transaction Publishers has performed a genuine service by bringing out a new edition of Natural Law. D'Entreves' analysis is clear and penetrating, and will guide the student of natural law to further, fruitful study.—Mitchell Muncy, The University Bookman

1
Introduction

For over two thousand years the idea of natural law has played a prominent part in thought and in history. It was conceived as the ultimate measure of right and wrong, as the pattern of the good life or 'life according to nature'. It provided a potent incentive to reflection, the touchstone of existing institutions, the justification of conservatism as well as of revolution. But recourse to natural law was never entirely unchallenged. The notion was laden with ambiguity even in the days when it was considered self-evident. In the last century and a half it has been assailed from many sides as critically unsound and as historically pernicious. It was declared to be dead, never to rise again from its ashes. Yet natural law has survived and still calls for discussion. It is the purpose of this book to examine the reasons for that vitality and the claim of natural law to have served the cause of humanity well.

But how is natural law best approached and how should it be handled? This is a serious difficulty to the modern student. There is no doubt that, for a number of reasons, we have grown unfamiliar with the whole body of doctrine and with its terminology. We find ourselves confronted with a variety of definitions, and we can see no reason why we should make our start from one rather than from another. There is, however, one important restriction which must be laid down from the outset, to circumscribe the ground which this book proposes to cover. The notion of natural law which it discusses is a notion which refers to human behaviour, not to physical phenomena. Our concern is with ethics and politics, not with the natural sciences. The word nature is the cause of the equivocation. The failure to distinguish clearly between its different meanings was the source of all the ambiguities in the doctrine of natural law.¹

Prima facie, there seem to be two possible lines of approach to our subject. I would call the one historical, the other philosophical. We may consider the doctrine of natural law as an historical product. A recurrent motif in Western thought and history, we may attempt to retrace its development and to stress its importance in shaping the destinies of the West—and our own. But we may, on the other hand, consider natural law as a philosophical doctrine. An ideal or a deception, it claims to have a value which is not merely historical, but universal. It can be stressed as a positive or negative contribution to man's knowledge of himself and of his place in the universe.

Neither line of approach seems entirely satisfactory. Not the historical, because a history of natural law is a formidable undertaking, however confidently eminent scholars may have thought and felt about it. 'The Law of Nature has a perfectly continuous history,' wrote Sir Frederick Pollock in an admirable little essay on 'The History of the Law of Nature'. This view was accepted and emphasised by almost all modern historians of political thought. They have all stressed, and rightly, the tenacity with which natural law terminology has held its ground in ethics and politics ever since the Greeks first coined it at the dawn of our civilisation. A quotation from Sir Ernest Barker's recent book, Traditions of Civility, will provide a good illustration of the manner in which the process is viewed by one of the greatest English students of the subject:

The origin of the idea of natural law may be ascribed to an old and indefeasible movement of the human mind (we may trace it already in the Antigone of Sophocles) which impels it towards the notion of an eternal and immutable justice; a justice which human authority expresses, or ought to express—but does not make; a justice which human authority may fail to express—and must pay the penalty for failing to express by the diminution, or even the forfeiture, of its power to command. This justice is conceived as being the higher or ultimate law, proceeding from the nature of the universe—from the Being of God and the reason of man. It follows that law—in the sense of the law of the last resort—is somehow above law-making. It follows that lawmakers, after all, are somehow under and subject to law.

The movement of the mind of man towards these conceptions and their consequences is already apparent in the Ethics and the Rhetoric of Aristotle. But it was among the Stoic thinkers of the Hellenistic age that the movement first attained a large and general expression; and that expression . . . became a tradition of human civility which runs continuously from the Stoic teachers of the Porch to the American Revolution of 1776 and the French Revolution of 1789. Allied to theology for many centuries—adopted by the Catholic Church, and forming part of the general teaching of the Schoolmen and the Canonists—the theory of Natural Law had become in the sixteenth century, and continued to remain during the seventeenth and the eighteenth, an independent and rationalist system, professed and expounded by the philosophers of the secular school of natural law.

This is a grandiose picture, but it leaves out many details and raises more questions than it purports to solve. Surely the mere fact that an identical expression recurs in different writers is no proof of the continuity of thought from one to the other. That Cicero and Locke should both have defined natural law in a very similar manner is no evidence of the uninterrupted acceptance of that notion during the eighteen odd centuries which separate them. The philosophers of the 'secular school', to whom Sir Ernest Barker refers, would probably have denied the continuity which he outlines so effectively. They had different views from ours about the losses which the 'dark ages' inflicted upon mankind. They would have denounced Schoolmen and Canonists alike for obscuring the true doctrine of natural law which they claimed to restore to its purity.¹ Except for the name, the medieval and the modern notions of natural law have little in common.

This is the sort of difficulty which we would certainly encounter if we were ever to entertain the ambitious programme of writing a history of natural law. It is a difficulty inherent in the history of political ideas, perhaps in Ideengeschichte altogether. What I have said of natural law can be said of other famous political concepts, such as the social contract or democracy. There can be no greater delusion than to believe that the history of these notions may be written by simply drawing up a list, as careful and complete as possible, of all the references to them which can be found in political writers. The formal continuity of certain expressions is not the decisive factor: the same notion may have had very different meanings and have served entirely different purposes. The history of ideas is an internal history; it is from within, not from without that the value of a doctrine must be assessed—as when new wine is poured into old bottles, it is the new wine that matters and sometimes causes the old bottle to burst.

I remember that Dr A. J. Carlyle used to say that there is very little that is really new in political theory. Men have kept repeating the old slogans over and over again. The novelty is very often only a question of accent. Democracy, Social Contract, Natural Law may well be traced back to the Greeks. But Aristotle's notion of democracy is not that of Jefferson; nor does the fact that the Sophists came very near the idea of a social contract give us much help to a better understanding of Rousseau. As far as natural law is concerned, it was Lord Bryce who remarked that, at a given moment, 'that which had been for nearly two thousand years a harmless maxim, almost a commonplace of morality', was converted into 'a mass of dynamite which shattered an ancient monarchy and shook the European continent'. We should not pretend to know much about natural law unless we are able to solve this historical riddle.

What I have called the philosophical approach brings us undoubtedly much nearer the answer. I have already noted that many of the ambiguities of the concept of natural law must be ascribed to the ambiguity of the concept of nature that underlies it. But it is not enough to point out that, notwithstanding the similar words which are used to denote them, the notion of natural law which has played so prominent a part in ethics and politics is something intrinsically different from the notion of the law of nature which is elaborated by the scientist. It is necessary further to account both for the similarity and for the difference.

Now it is easy enough to understand the reason which prompted men to indicate by a similar name the measure of their actions and the rules that govern a reality which escapes their control. It is the quest after some immutable standard or pattern, independent of their choice and capable of carrying conviction. The contrast between 'nature' and 'convention' is only one aspect of a deeper antithesis. As Pascal pointed out, it may well be that 'nature' is but a 'first custom', as custom is a 'second nature'.¹ What matters is the constant endeavour to place certain principles beyond discusssion, by raising them to a different plane altogether. The nature-metaphor was admirably fitted to express the notion of finality and inevitability. It is a curious paradox that this same metaphor should also have been used to indicate a task or a duty. The concept of nature was a double-edged sword which could be employed in two opposite directions.

It was not only double-edged. It was flexible. Nature could nave widely different meanings. We cannot fail to be aware of that difference when we read two sentences like 'man is by nature a political animal' and 'men are by nature equal and free'. The different meanings of natural law are but the consequences of the different meanings of nature. Professor Ritchie, himself a declared enemy of natural law, saw this point very clearly in his old but still valuable book on Natural Rights. He pointed out that the history of the law of nature is really nothing else than the history of the idea of nature in law and in politics. He therefore attempted to clarify, under different headings, the principal usages of the word 'nature' in political science, and gave this section of his book the significant title 'De Divisione Naturae'.

I think that this is, on the whole, a much more satisfactory approach to the problem of natural law than the purely historical one. For one thing it accounts for the fact that there is really not one tradition of natural law, but many. The medieval and the modern conceptions of natural law are two different doctrines; the continuity between them is mainly a question of words. The philosophical approach also allows for the grouping of different authors on deeper than mere chronological grounds, If Cicero and Locke agree in their definition of natural law, this is an indication of a more intimate link than mere imitation or repetition. Finally, only philosophy can provide the clue to the problems which history lays bare but is unable to solve. If the modern doctrine of natural law proved to be so different from the old both in its implications and in its far-reaching consequences, the reason is that a new conception of man and the universe turned what had been for centuries a harmless and orthodox doctrine into a potent instrument of progress and revolution, which gave an entirely new turn to history and of which we still feel the effects.

There is, however, one serious objection to this manner of handling our subject. Classifications are open to question. They vary according to the conceptions or preconceptions that underlie them. They are very often mere window-dressing for superficial thought. There is no end to the divisions and sub-divisions required to cover and to account for the infinite varieties of natural law. And these in turn provide arguments for the sceptical denial of natural law as one of the great deceptions of ethics. 'The word natural,' wrote Hume, 'is commonly taken in so many senses, and is of so loose a signification, that it seems vain to dispute whether justice be natural or not.' It would indeed be lamentable if, having approached natural law from the angle of philosophy, we found ourselves pursuing a will-o'-the-wisp. It is good that history should remind us that this highly controversial doctrine was after all one of the most creative forces, one of the most constructive elements of our culture and of our civilisation.

I can see only one way out of the difficulties which I have outlined and stressed so far. It is to combine history and philosophy in the study of what I have already called the vitality of natural law and its claim to have served the cause of humanity well. In my opinion what really calls for attention on the part of the modern student is the function of natural law rather than the doctrine itself, the issues that lay behind it rather than the controversies about its essence. 'In order to understand the dominance of natural law we must interpret it psychologically, and therefore relate it to the forces that operated through its medium.' I think that we should take as our guide this pregnant remark of a great student of history and of philosophy.¹ We must try to see through the abstract and academic facade of natural law. We must endeavour to understand the causes of its constant recurrence. Surely an undertaking of this kind calls for historical as well as for philosophical assistance.

I shall not attempt in this book to sketch a history, however condensed, of the doctrine of natural law. I shall concentrate on its merits. I have therefore chosen what seemed to me the best illustrations of the part which that doctrine has played in the course of our history. But for natural law the petty laws of a small peasant community of peninsular Italy would never have become the universal law of an international civilisation. But for natural law the great medieval synthesis of godly and of worldly wisdom would not have been possible. But for natural law there would probably have been no American and no French revolution, nor would the great ideals of freedom and equality have found their way into the law-books after having found it into the hearts of men. These three major events provide the substance of the three first chapters of this book. They will certainly need to be revised and implemented by the professional historian.

When we come to our present situation the line of approach must necessarily vary. The author of this study has no particular axe to grind in favour of one notion of natural law or another. He cannot help wondering at the ingenuity with which certain authors still contrive to draw up elaborate treatises on 'natural law and the rights of man' in an age which has grown so sceptical about absolute and immutable values, so hostile to the spirit of hope and optimism which inspired that doctrine in its heyday and ensured its success. But he cannot help feeling that the case for natural law is not usually put forward with the necessary fairness. He would like to draw attention to the fact that, though the terminology has gone and little seems left of natural law thinking in modern jurisprudence and politics, many of the points which are generally accepted as the first elements of those 'sciences' are really nothing else than the points which were traditionally discussed under the heading of natural law.

The essence of law, the delimitation of its province, the conditions of its validity,...