ANTIQUITY AND THE MIDDLE AGES

BEFORE taking up the history of Natural Law it may be well to show how Natural Law differs from Positive Law on the one hand and from Moral Law on the other.

The Moral Law deals with such actions as tend to promote the interests of society or else to become detrimental to its welfare. Actions are morally right or wrong with reference to the individuals composing society, according as they are good or bad for society as a whole.

Positive Law includes the enactments of a particular government, enjoining certain actions upon the citizens and prohibiting others.

Laws of Nature follow from the nature of things and are not dependent upon any particular form of society or government. They are universal rules of action, discovered by natural reason. They form the ideal according to which men should fashion their actions.

Of these three classes of laws one is set down by society and forms the Right; the second is prescribed by the government and forms the Law; the third is discovered by reason as Good. While in any particular instance all three may coincide, there is the possibility of a conflict.

The ancient Greeks were fond of speculating about the origin and meaning of Law. They first of all peoples developed the conception of Natural Law.

The germs of the conception of Natural Law are contained in the teaching of Heraclitus, whose influence reached its height about 460 B.C. The central thought of his system is the view that all things are in a state of incessant flow. Yet in this world of constant change there prevails an immutable and reasonable law to which all things are subject. This divine law or common reason illumines also the mind of man. All human wisdom is but an imitation of Nature and the Divinity. This divine law should guide not only the individual, but also the State. Human laws are but the efflux of the divine laws. Heraclitus is the first philosopher who believes in the Logos or rational world-soul — the eternal, all-comprehensive order of things. This conception of the Logos has dominated all subsequent philosophy down to the present. Its bearing upon the theory of Natural Law is evident. Higher and more authoritative than the positive laws of the State are the precepts of Universal Reason ; the laws which are right, not because they are commanded, but because they are founded in the nature of things.

The views of Heraclitus were attacked by Archelaus and by the Cyrenaican school, who held that right and wrong do not exist by nature, but are derived from human regulation and convention and are therefore variable.

The Sophists, with whom a new epoch begins in Greek philosophy, return to the view of Heraclitus. While the early Greek philosophers did not question the validity of traditional morality as embodied in the positive laws of the State, the Sophists applied the critical spirit to accepted ethical and religious views. They discriminated between Natural and Positive Law. They taught that positive laws could not be obligatory because they varied so frequently. Positive laws are the arbitrary commands of those in power, framed by rulers for their own advantage. Only such laws can be considered natural or divine as are everywhere observed. But though the Sophists recognized the idea of Natural Law it was not with the purpose of exalting Natural Right. They emphasized rather the subjectivity and relativity of truth. Their object was primarily to prove that existing laws and institutions were conventional and variable.

Socrates, Plato, and Aristotle are not unfamiliar with the conception of Natural Right, though they make little use of it. Socrates distinguishes between written laws which are founded upon custom and unwritten laws which are observed everywhere, being given to the human race by the gods and not framed by the hand of man. Plato's doctrine of ideas, which are supposed to be the essence of things, is closely related to the conception of Laws of Nature. Aristotle refers to universal law which conforms to the dictates of Nature. He speaks of a universal sense of right which, in a certain degree, all persons possess intuitively. He refers to the famous utterance of Antigone, who declared it to be right to bury Polynices, even though she violated a royal command, because the burial was by nature a deed of justice, the law enjoining it having been in force, not for this or the next day, but forever, no one knowing from whom it proceeded. Rhetoric I. 15 Aristotle speaks of the universal law as being more absolutely just than the written law, and as continuing in force forever, whereas written law frequently varies. Rhetoric I. 10, 3 he classifies laws as general and peculiar, the latter being those by whose written enactments men guide themselves, while the former consist of those written rules which seem to be recognized among all men. Rhetoric I. 15, 25 Aristotle again refers to universal principles of right.

In the works of the Stoics we find the theory of Natural Law fully developed. It was in accord with their system of metaphysics. They believed that every corporate entity is permeated by God, whom they conceived as the Logos, that is, as universal reason. They believed God to be immanent in Nature — to be the world-soul. According to their view God rules the universe by means of a universal law. This law they believed to be the rule of action for every being in existence. The universe is one. The law which is immanent in Nature and penetrates the being of man, is the absolute standard, above space and time, independent of human regulations — the absolute criterion of right and wrong. Every person with sound intellect can discover this law. The end of life, the supreme ethical law, is the life according to Nature and the agreement of the human with the divine will. The Stoics taught that law is derived from the common or general reason, its source being God or Nature, and not the will of man. It is Natural Law, and as such unchangeable ; the same at all times and in all places. The wise man will use this law as his guide in daily life and as a standard in framing other laws. The divine law was exclusive law in the Golden Age. The depravity of human nature, however, makes positive human laws necessary. Positive laws are not binding when they conflict...