[Footnote 2: The meaning which Grotius here gives to jus gentium (=international law), departs from the customary usage of the Scholastics, with whom it denotes the law uniformly acknowledged among all nations. Thomas Aquinas understands by it, in distinction to jus naturale proper, the sum of the conclusions deduced from this as a result of the development of human culture and its departure from primitive purity. Cf. Gierke, Althusius, p. 273; Deutsches Genossenschaftsrecht, vol. iii. p. 612. On the meaning of natural law cf. Gierke's Inaugural Address as Rector at Breslau, Naturrecht und Deutsches Recht, Frankfort-on-the-Main, 1883.]
The distinction between natural and conventional law which has been already mentioned, finds place within both: the positive law of persons is called jus civile, and the positive law of nations, jus gentium voluntarium. Positive law has its origin in regard for utility, while unwritten law finds its source neither in this nor (directly) in the will of God,[1] but in the rational nature of man. Man is by nature social, and, as a rational being, possesses the impulse toward ordered association. Unlawful means whatever renders such association of rational beings impossible, as the violation of promises or the taking away and retention of the property of others. In the (pre-social) state of nature, all belonged to all, but through the act of taking possession (occupatio) property arises (sea and air are excluded from appropriation). In the state of nature everyone has the right to defend himself against attack and to revenge himself on the evil-doer; but in the political community, founded by contract, personal revenge is replaced by punishment decreed by the civil power. The aim of punishment is not retribution, but reformation and deterrence. It belongs to God alone to punish because of sin committed, the state can punish only to prevent it. (The antithesis quia peccatum est—ne peccetur comes from Seneca.)
[Footnote 1: Natural law would be valid even if there were no God. With these words the alliance between the modern and the mediaeval philosophy of law is severed.]
This energetic revival of the distinction already common in the Middle Ages between "positive and natural," which Lord Herbert of Cherbury brought forward at the same period (1624) in the philosophy of religion, gave the catchword for a movement in practical philosophy whose developments extend into the nineteenth century. Not only the illumination period, but all modern philosophy down to Kant and Fichte, is under the ban of the antithesis, natural and artificial. In all fields, in ethics as well as in noëtics, men return to the primitive or storm back to it, in the hope of finding there the source of all truth and the cure for all evils. Sometimes it is called nature, sometimes reason (natural law and rational law are synonymous, as also natural religion and the religion of the reason), by which is understood that which is permanent and everywhere the same in contrast to the temporary and the changeable, that which is innate in contrast to that which has been developed, in contrast, further, to that which has been revealed. Whatever passes as law in all places and at all times is natural law, says Grotius; that which all men believe forms the content of natural religion, says Lord Herbert. Before long it comes to be said: that alone is genuine, true, healthy, and valuable which has eternal and universal validity; all else is not only superfluous and valueless but of evil, for it must be unnatural and corrupt. This step is taken by Deism, with the principle that whatever is not natural or rational in the sense indicated is unnatural and irrational. Parallel phenomena are not wanting, further, in the philosophy of law (Gierke, Althusius). But these errors must not be too harshly judged. The confidence with which they were made sprang from the real and the historical force of their underlying idea.
As already stated, the "natural" forms the antithesis to the supernatural, on the one hand, and to the historical, on the other. This combination of the revealed and the historical will not appear strange, if we remember that the mediaeval view of the world under criticism was, as Christian, historico-religious, and, moreover, that for the philosophy of religion the two in fact coincide, inasmuch as revelation is conceived as an historical event, and the historical religions assume the character of revealed. The term arbitrary, applied to both in common, was questionable, however: as revelation is a divine decree, so historical institutions are the products of human enactment, the state, the result of a contract, dogmas, inventions of the priesthood, the results of development, artificial constructions! It took long ages for man to free himself from the idea of the artificial and conventional in his view of history. Hegel was the first to gather the fruit whose seeds had been sown by Leibnitz, Lessing, Herder, and the historical school of law. As often, however, as an attempt was made from this standpoint of origins to show laws in the course of history, only one could be reached, a law of necessary degeneration, interrupted at times by sudden restorations—thus the Deists, thus Machiavelli and Rousseau. Everything degenerates, science itself only contributes to the fall—therefore, back to the happy beginnings of things!
If, finally, we inquire into the position of the Church in regard to the questions of legal philosophy, we may say that, among the Protestants, Luther, appealing to the Scripture text, declares rulers ordained by God and sacred, though at the same time he considers law and politics but remotely related to the inner man; that Melancthon, in his Elements of Ethics (1538), as in all his philosophical text-books,[1] went back to Aristotle, but found the source of natural law in the Decalogue, being followed in this by Oldendorp (1539), Hemming (1562), and B. Winkler (1615).[2]
[Footnote 1: The edition of Melancthon's works by Bretschneider and Bindseil gives the ethical treatises in vol. xvi. and the other philosophical treatises in vol. xiii. (in part also in vols. xi. and xx.).]
[Footnote 2: Cf. C.v. Kaltenborn, Die Vorläufer des Hugo Grotius,
Leipsic, 1848.]
On the Catholic side, the Jesuits (the Order was founded in 1534, and confirmed in 1540), on the one hand, revived the Pelagian theory of freedom in opposition to the Luthero-Augustinian doctrine of the servitude of the will, and, on the other, defended the natural origin of the state in a (revocable) contract in opposition to its divine origin asserted by the Reformers, and the sovereignty of the people even to the sanctioning of tyrannicide. Bellarmin (1542-1621) taught that the prince derives his authority from the people, and as the latter have given him power, so they retain the natural right to take it back and bestow it elsewhere. The view of Juan Mariana (1537-1624; De Rege, 1599) is that, as the people in transferring rights to the prince retain still greater power themselves, they are entitled in given cases to call the king to account. If he corrupts the state by evil manners, and, degenerating into the tyrant, despises religion and the laws, he may, as a public enemy, be deprived by anyone of his authority and his life. It is lawful to arrest tyranny in any way, and those have always been highly esteemed who, from devotion to the public welfare, have sought to kill the tyrant.
%5. Skepticism in France.%