The School of Natural Law. The so-called school
of Protestant natural law arose in the seventeenth
century with Grotius, incorrectly described as the fa-
ther of natural law. His originality is undeniable, but
a great part of his natural law work is only the consoli-
dation of tradition. The Aristotelian and Thomistic
foundation is unmistakable. Man is characterized by
a nature at once sociable and reasonable. Whence it
follows that all the norms, which in the light of man's
reason favor his life in society, are in harmony with
his nature. Man has a genuine instinct for sociability;
as soon as he perceives the necessity of human inter-
dependence, he proposes a rule to obey laws that he
is reasonably expected to observe as actually neces-
sary to his life. It is of the nature of an intelligent and
free man to accept this rule; but differing from physical
laws, man's laws may not be obeyed, and therefore it
is necessary to supply them with sanctions; these sanc-
tions should have to be rarely applied for otherwise
there would be anarchy leading to the disappearance
of social life.
Natural law is thus a presentation of right reason
according to which we necessarily judge an action to
be just or immoral depending on its conformity with
reasonable and social nature. God, the author of nature,
may thus defend some laws and condemn others
(Grotius, De jure belli ac pacis, Vol. I, Ch. IX, 1). On
the other hand, the originality of Grotius is to have
pushed the thought of Saint Thomas to its extreme
limits. In fact, reason is no longer the reflection of the
divine nature, but is inherent in the very nature of man;
everything “would take place somehow even if it were
admitted that there is no God (an impiety which cannot
be anything but a possible crime), or if there is a God,
that he is not concerned with human matters” (Grotius,
ibid., Prolegomena, para. 2). The idea is not a formally
new one, since Hugh of Saint Victor had already ex-
pressed it, and Suarez after him, but it was no longer
a scholastic hypothesis. Natural law was secularized
in germ by Saint Thomas who offered an entire intel-
lectual attempt aimed at giving natural law an objec-
tive basis. Moreover, Grotius' method opened the door
to the construction of a rational law no longer verified
by experience but deduced abstractly, without consid-
ering “any particular fact,” taking as initially given
only the nature of man. It was a very sharp break with
Aristotelian and Thomistic empiricism which was to
lead to “rational natural law” and to enjoy an enormous
success until the beginning of the nineteenth century;
it has been severely criticized since then.
Grotius' teaching was confirmed and amply devel-
oped. Spinoza's Ethics brought philosophical support
by affirming that each being tries necessarily to perse-
vere in its nature. Man consequently is opposed to
everything which can destroy his existence, and natural
law will help him realize this aim.
It was in 1672 that Samuel Pufendorf, in his De jure
naturae et gentium (8 vols.), and in 1673 in De officio
hominis et civis juxta legem naturalem (2 vols.), ex-
tended considerably the ideas of Grotius. Natural rea-
son is concerned with terrestrial duties and allows us
to establish the scale of our duties imposed on us for
the protection of human society. Theology is domiciled
in an otherworldly domain.
Rational natural law was to acquire in that way an
eminent place and was imposed as much on matters
relating to personal individual law as to those of citi-
zens and affairs of state and relations among states;
we need recall only Cumberland, Barbeyrac, Wolff, and
Burlamaqui in the eighteenth century. A common trait
running through all these authors' writings, the perma-
nent nature of man illuminated by right reason, has
as its corollary universal rules of behavior logically
deduced and indispensable for the survival of any soci-
ety. Although the impulse seemed irresistible, and man
in such a system enlightened by his reason can deduce
all of law and then discover the universal rules govern-
ing human actions, nevertheless there were still solid
points of resistance. Adopting the viewpoint of
Montaigne, Pascal in his Pensées (Sec. V) was to make
a harsh criticism of this universal justice and rational
law. Pascal's aim was obviously apologetic: the unity
of religion opposing the heterogeneity of law or posi-
tivist position.
Hobbes occupies a special place by himself with his
critical stand on sociability. His De cive contains a
sharp criticism of Aristotle's idea of man as a social
creature. Far from being impelled by a natural desire
to be united, men being equal by definition, distrust
one another and fight and injure each other often in
seeking the same thing. The natural state of men is
a perpetual war of all against all. Men, no doubt, are
not intrinsically bad, but they have a complex nature.
In any case, however, in the state of nature they are
selfish and hence enemies. As the supreme evil is
suffering and death, they consequently go ahead and
unite in a society under the influence of fear and
insecurity and delegate their powers to an authority
which would be all the more absolute insofar as Hobbes
made the social contract the basis of a civil state. All
powers were in that way to be concentrated in the
hands of the sovereign.
The law of nature rationally demands respect for
this pact and regard for the justice emanating from
the sovereign. The Leviathan's universal society thus
appears as an anthropomorphic creation intended to
guarantee the security and protection of men. As for
natural law, it holds only in the state of nature, but
in a politically organized society the positive law
emanating from the sovereign is obligatory, a conse-
quent return to positivism.
