University of Virginia Library

NATURAL LAW AND
NATURAL RIGHTS

I. DEFINITIONS

The expression “natural law” includes the ideas of
nature and law, two nouns which do not lend them-
selves to univocal objective definition or even at least
to general or commonly accepted usage. One recent

author Erik Wolf (Das Problem..., Ch. I, Part III)
enumerates twelve meanings of “nature” and ten
meanings of “law,” which yield 120 possible combina-
tions and almost as many definitions of the expression
“natural law.” We may add that if it is theoretically
possible to think of supporting a specific agreement
as to the present meaning of “nature”—again in this
case not overlooking all the other historically accepted
meanings—on the other hand, it is certain that there
is no hope of finding a similar agreement about the
idea of “law”: the definition of law entails reference
to philosophical presuppositions and consequently is
not susceptible to supporting an indispensable general
consensus. The definition of law is indeed the rock of
Sisyphus.

To define natural law in an objective manner by
disengaging it from its environment, from the schools
which employ the expression, or from the political and
legal organs which make use of it, is therefore an
undertaking doomed to failure from the start. Hence
it is necessary, if we wish to avoid confusion, always
to qualify the expression: for example, classical natural
law (to make the Aristotelian or Thomist conception
precise); Stoic natural law; Protestant natural law;
positive natural law characteristic of one of the forms
of contemporary natural law (the legal sense of natural
law); and so forth.

Furthermore, certain essential features of natural law
can be formulated by specifying it in contrast with
conventional law: nature opposed to convention, jus-
tice to legal right, even unwritten law opposed to
written law, the permanence of certain human values
confronting the transitory character of other values
derived especially from the state. Seen in this light
natural law appears as a group of principles that tran-
scend the law of different epochs and regrouping a set
of norms endowed with a certain continuity by opposi-
tion to the law of a given epoch, which is transitory
and changing; for the law of any epoch is the inter-
preter of the preceding one, whereas natural law is
the law which outlives the times.

Though the expression “natural law” is equivocal,
the idea of “natural rights” presents much less am-
biguity. By “natural rights” we understand the subjec-
tive rights that man possesses as a human being, which
are granted to his person for the protection of certain
essential interests. These rights are considered the
irreducible legal patrimony of every human being as
part of his very nature. They are based on the idea
that only a human being is a person, and that every
human being is a person. As a consequence, these rights
are inalienable and imprescriptible. Inalienable, be-
cause if these rights would be given up, man would
cease to be a person and become a case of alienation;
imprescriptible, because if these rights ceased to exist
(extinctive prescription), man would likewise cease to
be a person in his prescribed condition.

Natural rights thus appear as a manifestation of
individualism, man being considered in his own nature
independently of his political allegiance. They conse-
crate the idea of the dignity of the human person
considered as such.

II. HISTORICAL ORIGINS

Greece and Rome. The idea of natural law is tied
to the conception of an organized universe; the idea
can be disengaged only after a society has become
aware of the regularity, the succession, the repetition
of natural phenomena, the existence of cycles and the
ability to make predictions, predictability based on the
existence of interrelations with the physical world.
Natural law assumes a spatiotemporal representation
of the universe. Hence it is at a loss when confronted
with the many discrepancies in the magical condition
of societies lacking any ordered structuring. But as soon
as the idea becomes clear that there exist laws govern-
ing natural phenomena, there develops immediately
the conception of a general principle and ubiquitous
organizer of the initial chaos.

In Greece the idea came to a head quickly. Inco-
herence gave way to order. Since certain phenomena
in nature answer to laws, it was logical to believe that
all phenomena answer to laws and that notably socie-
ties, peoples, and relations among individuals would
also answer to a preestablished integral order which
needed only to be sought and discovered. It was namely
the idea of Kosmos, the order of things in contrast to
disorder, confusion, and chaos. The single directing
principle was supposed to govern everything including
men placed at the center of the universe and societies
having the same characteristics as the other elements
in the external world. Whence the idea that there exists
a set of general and universal norms inherent in nature
itself, especially in human nature, and which would
be imposed upon man's will insofar as his will manifests
itself in the form of custom or law. Heraclitus, for
example, defined wisdom as consisting of “a single
thing, to know the thought which governs all things
everywhere” (Heraclitus, frag. 41; Jean Voilquin, p. 76).
This thought is the “Logos” whose meaning is surely
difficult to comprehend exactly, but which—as
Voilquin proposes (p. 76, note 48)—appears really to
be reason insofar as it is common to all creatures,
because reason contains the laws that govern the world:
“It would be in some manner the communality of
universal thought, the wisdom which is one, excluding
the neo-Platonic and Stoic meaning” (ibid.).

In such a conception the world does not develop

in an order according to time, but in an order according
to thought, which moreover sees the world as one. The
laws, besides, are not due to man's will alone or main-
tained solely by human support, but “are nourished
by a single divine law which rules over all, as it pleases,
sufficing and surpassing in all things” (Voilquin, frag.
114). Thought is considered the highest virtue, and
wisdom consists in saying what is true and in acting
according to nature by listening to its voice.

We find again a moving and coordinating principle
of a similar or at least analogous nature, in Anaxagoras
of Clazomena, in the form of νου̃ς (“mind”) infinite and
autonomous, mingling with nothing, “alone with itself
and by itself.” It is at once the directing principle and
the moving principle; it is the ordering principle of
the universe: μάνια διέκοτμησε νου̃σ . The idea of a law
higher than human law can be perceived to emerge
here with the opposition between nature and conven-
tion. The idea of nature is extended farther. Besides
purely physical nature, education is capable of pro-
ducing kinds of conduct which are so well integrated
with our personality that they are indistinguishably
fused with natural sorts of behavior. “Nature and edu-
cation are close to each other, for education transforms
man, but through this transformation creates in him
a second nature” (Voilquin, frag. 33).

The opposition between a higher law inherent in
the logos, which organizes the world, and man-made
law finds its dramatic illustration in the fifth century
B.C. in Sophocles' Antigone (ca. 454-450), putting into
relief the contrast between Creon's edict and the Gods'
unwritten and infallible laws. Let us not be mistaken
about it, however; it is less a matter in this case of
appealing to a natural rather than to a supernatural
law against the state, but it was more specifically a
case of a moral against a legal duty. In fact, Antigone
appealed to piety.

Recourse to an organizing principle of the cosmos
as evidence of intelligence is found again in Socrates
in the form of the tendencies according to which it
is normal to live, whereas Plato does not refer to
empirical phenomena but to ideas realized in the
“eternity of nature.” Moreover, Plato defines justice
in the Republic as conforming to nature (Republic, IV,
444d). Justice and nature are thereafter indissolubly
linked. Furthermore, he distinguishes the written law
from the unwritten law; the former governs cities, the
latter issues from custom and manners, that is to say,
from natural conduct.

Aristotle brings to natural law theory an essentially
new contribution by deriving the concept of right from
the idea of justice, the latter being the appropriate
mean that the judge maintains between the parties in
court (Nicom. Ethics, Book V, Ch. IV, 8). The right is
called δίκαιον“because the division is made in two
equal parts” (δίκα); it is as though one were to say
“divided in two” (δίκαιον) and the word for judge
(δικαστής) is synonymous with “he who divides in two”
(δικαστής). In other terms, the judge apportions to each
his due, that is, fixes in fair proportion the goods and
benefits which men share within the city. It is a specific
instance of justice within the idea of general justice.
The magistrate is just in the largest sense for in exercis-
ing his power he is the guardian of this general justice.
And where there is justice, there is also equality (Ethics,
Book V, Ch. VI, 5). The aim of judicial activity is
therefore the right, the right of the city, a political
right insofar as it aims to establish this equality. Now
this political right exists either by natural origin or by
its basis in law (Ethics, Book V, Ch. VII, 1).

Aristotle envisages nature as the source of justice
even if beside nature there exists legal justice. Justice
is thus sought in nature itself, that is, outside of man
in a world external to man. Justice is no longer taken
from the principle organizing chaos, nor from internal
reason, but from the observation of the world. The
criterion of original nature is found, Aristotle says, in
what “everywhere has the same effect and does not
depend on diverse opinions” (Ethics, ibid.) in contrast
with what is based on law. Furthermore, he argues
against those who would question whether right can
be in part natural on the ground that what is natural
should be immutable and have the same effect every-
where, whereas right is always changing. For Aristotle,
nature in fact is susceptible to modification and is not
immutable; skill can be acquired and modify nature
(the handicrafts are an example). It is up to man con-
sequently to discern by observation and by interro-
gating nature what is natural and what conforms to
its order, natural right consisting precisely in finding
that justice is in consistent harmony with the natural
order and thereby objective. There is accordingly a
common external reference to individuals to which one
may have recourse in order to determine what is each
one's just due. The totality of these conclusions forms
natural right whose content tends to evolve to the
extent that nature itself evolves, and to change in
proportion to which man tends to change. A theory
of this sort leads necessarily to casuistry.

The Stoic doctrine by comparison with Aristotle's
theory marks a return to a less legalistic conception,
being almost entirely part of a moral theory. Nonethe-
less, nature occupies a fundamental place in it. Nature
is an “hexis,” an essence which is self-moving through
seminal reasons, producing and containing what she
provides in limited periods of time, and giving birth
to things similar to those from which she has been
detached. Her aim is both utilitarian and agreeable.

As for the world in general, it is governed by a
destiny which is the linkage of the causes of things,
or again, reason.

We see something of the sort reappear in a logos,
a part of which is attributed to man in the form of
rational faculties; but it is clearly no longer the logos
of Heraclitus. On the contrary, the world “is a living
reasonable being, animated and intelligible,” according
to Chrysippus. Man can, therefore, perceive the struc-
tures of this rationally intelligible world through reason
as interpreter. Reason, having been given to reasonable
animals in a more perfect fashion, to live according
to their nature, becomes for them the same as to live
according to reason which is the regulator of instinct.
To live in conformity with nature is conducive also
to living in accord with virtue, for nature leads to
virtue.

Furthermore nature's gifts consist of good instincts
only. Hence justice can result only from nature and
not by human decree, as is also the case with law and
right opinion. Hence the subordination of decree and
convention to a higher norm which integrates the just.
This higher norm is surely not juridicial, and Michel
Villey (I, 135) was correct in challenging the view that
it is, but it is a means of knowing the right rule and
consequently, of singling out the norms that can qualify
as natural, for these norms are in conformity with
nature or with the intelligible structure of reality.
Undoubtedly the norms thus singled out are not what
observation of nature shows, but they are what a ra-
tional process yields. As a consequence, we have an-
other meaning here for the expression “natural law”
but this meaning is destined to have profound reper-
cussions. In any case it is a declaration that the just
is not a matter of convention. Moreover, by virtue of
the fact that this theory is inscribed in an ethics in
which corruption is absent, reference is made to man.
Applied to jurisprudence such a theory by its very
nature leads one to scrutinize the nature of man and
to place man at the center of the legal construction
of right. Whence, the idea of “natural rights” comes
to the fore.

On these foundations the idea of natural law pene-
trated Roman law. But before approaching this prob-
lem it is important to show briefly that the natural
law doctrine was far from encountering unanimity in
Greek philosophy.

In opposition to the current of natural law, there
was in fact a steady stream of what, for lack of any
more adequate expression, may be described as posi-
tivist thought. Archelaus, the teacher of Socrates,
thought that “the just and unjust are not such by nature,
but by custom.” Similarly the Pyrrhonians and Epi-
cureans, on the grounds of their philosophy, subscribed
to the same point of view since the essence of things
could not be perceived. There is an echo of this doc-
trine in Lucretius' De rerum natura. The coexistence,
consequently, within philosophy itself of two irrecon-
cilable, irreducibly opposed tendencies is found, more-
over, again in nearly every period.

Roman Law. It was through the path laid down by
middle Stoicism that the doctrine of natural law
reached Roman jurisprudence. The very ancient
Roman law knew nothing in fact of natural law. Every
law was tied to political allegiance. Once this alle-
giance was over, the law also terminated and the legal
bonds which united the individual to the city were
severed, so that the city was then deprived of any legal
prerogative.

The penetration of Greek ideas was, however, to
modify this point of view, especially after 146 B.C.
when Greece was annexed. The praetor's edict and the
jurisconsults' works were the vehicle for this penetra-
tion, so long as the jurisconsults belonged to the intel-
lectual aristocracy and kept a share of the power, their
influence was consequently decisive on the evolution
of Roman law.

Middle Stoicism, notably that of Panaetius and
Posidonius, made the matter easy moreover, for it
revised the very narrow positions held by the original
Stoics, yielding on certain points, and proposing espe-
cially an active morality. “The wise man does not live
in the desert, for he is sociable by nature and made
for action. He exercises to strengthen his body, and
he will pray to the Gods and make vows to obtain
their blessings.”

However, the thought of Plato and Aristotle was for
all that not neglected. They are the source of those
famous definitions: of Law (Jus) as “the art of the good
and the equitable” (jus est ars boni et aequi) by Celsus,
and of Justice as “the constant and perpetual will to
attribute to each his due” (iusticia est constans et
perpetua voluntas ius suum cuique tribuendi) by
Ulpian. These definitions were undoubtedly of Greek
origin.

The famous definition, not of natural right but of
natural law, is formulated by Cicero in his De republica
(3.22.33): “True law is right reason which conforms
to nature” (Est quaedam vera lex recta ratio, naturae
congruens); it is nonetheless Stoic and constitutive of
an ethics whose content is made clear in De inventione
(2.53.161), namely, the law engraved in our hearts, as
are religion, piety, gratitude, vengeance, respect, and
truth.

But if the distinction between law and justice is not
too clear-cut, the distinction between natural law and
the law of the city was soon adopted by the juriscon-
sults who with much less oratory took up again the

Stoics' notion of natural reason enabling one to distin-
guish among the norms those that would qualify as
natural. Gaius, in Book I of his Institutes (Digest, I.t.1;9)
taught that “all the civilized peoples govern themselves
partly through the law common to all peoples, and
partly through the law peculiar to themselves, for when
a nation creates a law, it becomes its own 'civil law,'
while the law established by natural reason among all
men is observed equally everywhere and is called the
law of all people (lex gentium), obligatory on all na-
tions.”

The separation is clearly made, for lack of being well
made: this law of peoples, product of natural reason,
is necessarily the most ancient “for it was born with
the human species” and the compelling character of
natural reason with respect to positive law is undeni-
able. Hence civil law cannot be arbitrary for it is
limited by natural reason (naturalis ratio).

Probably even more stoical is the tripartite division
of Ulpian: natural law, human law, and civil law. This
division reveals the wish to allow nature to play as
extensive a role as possible.

Is the influence of natural law, conceived as stem-
ming from natural reason, only an ornament of Roman
law, a kind of addition to its basis which was probably
quite different, a general introduction to a law which
would have had no use for it?

The answer appears to us subtle. It is certain that
the analysis of the Digest proves that the part played
by natural law in the regulation of an institution like
marriage is important (Digest, Book XXIII, title II, law
14, sec. 2). As a single example: the cognatio servilis
(“slave status”) prevents the marriage of a liberated
slave with his mother, his sister, or his sister's daughter,
and reciprocally a liberated father could not marry a
liberated daughter. The reason: “in marriage the natu-
ral law and the feeling of decency are to be observed”
(in contratendis matrimonis naturale jus et pudor in-
spiciendus est). Likewise, the evolution of the status
of the slave seems to be well based on the Stoic idea
that all men are equal—a line of reasoning contrary
to that of Aristotle. At first, the slave's acquisition of
a name, then of limited property (peculum), and finally,
of the right to manifest and declare his freedom as a
person—all that indicates an evolution based on a
principle borrowed from the Porch of Stoicism.

As for the law of contractual obligations, there seems
to be no exception to its having been conceived with
the theory of natural obligations. On the other hand,
it is true that most of the jurists' works remain works
of casuistry, and to this extent they may be claimed
to be more Aristotelian than Stoical since natural law
never appears in their works dressed in the form of
a deductive system.

The Christian Contribution. The influence of Stoic
thought came to fruition with the advent of Christian-
ity. Humanitarian Stoicism, at the time of the
Antonines, led Roman society to Christianity, while the
jurists were welcoming the idea of a justice superior
to human laws. We have already indicated the defini-
tions of Celsus and Ulpian. Saint Augustine, in his City
of God, was to be the first to formulate clearly the
doctrine by which participation in God's thought and
creative work is imposed as a moral and obligatory
end. Natural law is nothing but the formulation of this
moral order. Now, there is an undeniable hierarchy:
the superiority of life over organic matter, and among
living creatures, the primacy of the life of the mind
over that of the senses.

The subordination of matter to the mind and the
subjection of the senses to reason were to become the
fundamental principles of natural law. At all times in
every period and in every place, actions are considered
just and others unjust, licit or illicit, authorized or
forbidden; forbidden: to betray one's country, to steal,
to kill, not to do unto others what one would not have
others do unto one. This emphasizes at the same time
the recognition in man of preexisting rights in the form
of individual rights, natural rights which were to be
recognized in every individual as his irreducible
patrimony.

The reconciliation of Stoic with Christian thought
is appropriately referred to Saint Paul. The principal
text is that of the Epistle to the Romans 2:14-15 which
declares that nature has given the pagans something,
a law engraved in their heart, to which their conscience
bears witness as well as their thoughts. Here was an
undeniable coming together of reason, natural law, and
consciousness of this law. This uniting was already
present in Judaism.

Teaching about the natural consciousness of good
and evil was taken up again by Justinian. God is be-
lieved to have confirmed natural law or to have given
it to mankind.

However, this reconciliation which led to a form of
rational law was not to be without frequent vehement
opposition: Lactantius strongly opposed Zeno's maxim
“to live according to nature” and “to live according
to reason.” In any case, the appeal to reason as the
regulating element of individual life and the recogni-
tion of natural law in men's hearts were triumphantly
expressed by Saint Ambrose in an explicitly Paulist
perspective. Saint Augustine's position is a more com-
plex one; the text of the Epistle to the Romans should
be interpreted in the sense that all the natural virtues
can be considered as virtue only through grace. There
is no nature which can lead to virtue apart from grace,
so that natural law is natural by reference to God. The

idea of reason is surely not eliminated, it is referred
to divine reason and reinforced by divine will. Fur-
thermore, it may be inferred that God imposes only
commandments conforming to an order called natural.

The Stoic influence is nevertheless assured even
though there is little unanimity about purely rational
natural law. The whole problem of ontology is posed
here. However, the existence of a natural law categor-
ically opposed to positive law is not questioned and
the definition of these respective laws remains a clas-
sical question just as it was in Roman law.

Isidore of Seville, in his Etymologies (ca. 633), an-
nounced the dichotomy: “All laws are either divine
or human” (Omnes leges aut divinae sunt, aut
humanae). The former flow from the “constant Divine
nature,” and the others from human customs and man-
ners (Humanae moribus constant). Divinity and nature
in that way form again an indissolubly linked pair.
However, the Roman tripartite division of Ulpian was
not formally abandoned, but was to undergo a pro-
found modification. Natural law is common to all peo-
ples, the civil law appropriate to each people, the jus
gentium is used among the majority of peoples. Natural
law is the same everywhere, for it is not the work of
an initial institution but the result of a genuine instinct,
based on nature independently of the vacillations of
opinion with divergent views of civil law.

Isidore's classification, though it preserves the formal
framework of Ulpian, still profoundly modifies the
content of the ideas. Natural law (jus naturale) included
the law common to man and animals and the law
common to all men. The category of jus gentium thus
became dispensable and was to be used in order to
rearrange the rules of public international law utilized
by most nations, such as rules about the occupation
of vacated lands, their organization and defense; rules
about war and the aftermath of war, rules about
treaties, captivity, postwar boundaries, immunity of
elected officials, as well as interdictions of marriage
between foreigners which would be one of the matters
subject to the law of peoples until the end of the
eighteenth century.

These ideas were taken up again and even high-
lighted by Gratianus (fl. 1140). The beginning of the
Decretal of 1140 is in fact a gloss on the first of Isidore's
classifications: “the human race is governed by two
things, natural law and custom.”

The confusion between divine law and natural law
was complete. Besides, Gratianus was as clumsy as
Isidore in reconciling this bipartite division with the
tripartite division of natural law, law of peoples, and
civil law.

Natural law is the oldest, going back, as it does, to
the origins of mankind. Civil laws afterward codified
the habits and customs of men. Natural law is the most
stable, without variation in each era. Finally, natural
law transcends positive law in such wise that if certain
things are accepted by custom or by written law but
are contrary to natural law, they are null and void
(vana et irrita sunt habenda).

The Decretal played an important role in the evolu-
tion of Christian thought; actually influenced by the
reflections of jurists and theologians, the Decretal was
enriched by a whole battery of commentaries and ideas,
at times profound and always ingenious.

The idea of natural law was to be put to the test.
The decretalists were divided on the question whether
there exists a law common to men and animals. Rufinus
eliminated this idea which Etienne de Tournai, on the
other side, defended, admitting at the same time the
jus gentium which identifies the law arising from the
community of civilized peoples with natural law, re-
served for men. On the whole, thought on the subject
was wavering; the meanings given to the expression
“natural law” multiplied; they were not only numerous
but also irreconcilable (see, for example, the Summa
Lipsiensis of 1186 which set up six successive defini-
tions going from miraculous revelation to the teaching
of reason and to simple morality). However, a deepen-
ing of thought should be noted, one resulting from the
analysis of the rules of natural law. Not all of them
are equally constraining.

Thanks to these analyses, natural law takes on an
eminent value, differing from positive law with respect
to four distinctive characteristics:

• (1) its origin (natural law goes back to the beginning
  of mankind);

• (2) its domain (it is common to all);

• (3) its worth (it is a measure or standard);

• (4) its rigor (it is immutable in two of its three parts).

The theologians' task is more explicative than
analytical; they explain the Bible by relating it to
natural law (Exodus 3, 22; the polygamy of patriarchs,
fornication, etc.). However, certain theologians con-
tribute important matters with respect to the idea
itself; such was the case with William of Auxerre (fl.
1231) who insisted on the innateness of natural law
and its close association with synteresis, or innate moral
sense, which as an activity starts with the contempla-
tion of God or with the knowledge of observable things.
Then there was Albert the Great (1206-80) who
defended vigorously the idea that natural law is the
rational feature of human law, certain precepts being
at the same time natural and rational (conservation of
the species, for example), other precepts being simply
rational (those of religion). The rational is not opposed
to nature, for human nature is rational.

End of the Middle Ages and William of Ockham.
The intransigeant Augustinian conception of Chris-
tianity was thus subdued and a return to the ancient
sources was bound to occur. Saint Thomas Aquinas was
going to refer back to these sources, more particularly
to Aristotle's natural law. From Aristotle he borrowed
the evolutionary feature of a changing natural law, for
human nature is variable. Hence, laws are themselves
susceptible to variations. The precepts of natural law
are the first principles of human action. Man's initiative
returned to the forefront in the quest and discovery
of law.

In short, Aquinas viewed the universe as governed
by eternal law; man is subject to natural law, which
is only the reflection of divine reason, and finally
human law simply applies the precepts and principles
of natural law by adapting them to the particular needs
and circumstances of social life. The eternal or divine
law integrates natural law, but natural law is distinct
from divine law in that the latter includes the many
truths of a supernatural order foreign to natural law.
Natural law appears here not as natural in the first
sense of the term, but as rational human law for man
is a reasonable creature.

Natural law consists henceforth in fundamental
primordial judgments of a moral order; synteresis is
its habitus or way of functioning. Natural law is there-
fore not the synteresis but its object. The system thus
is clear: natural law constitutes the principle of uni-
versal order and archetype of all law; natural law
permits man to participate through his reason in divine
or eternal law; finally, human law is integrated in
natural law by being a projection of it as the function
of fulfilling social needs. Hence it is possible to resist
unjust laws. Since natural law is the intended product
of natural reason, it participates in nature.

What then happens to the universality and immuta-
bility of natural law? Universality holds only through
certain universal principles (act according to sound
reason), immutability is relative by virtue of the very
nature of man. Man is impelled by sound reason to-
wards the quest of the common good, for an individ-
ual's ideal is realizable only to the extent that the
community's ideal is realized.

The voluntarist current was not however obliterated,
and the return to this position was very plainly dis-
cernible in William of Ockham, in the fourteenth cen-
tury. He opposed both Aristotle's realism and Aquinas'
moderate form of realism. For Ockham, only individ-
uals exist; man as an abstract category is a creation
of the mind—such is his essentially nominalist thesis.
Hence, there arises the tendency to think of law chiefly
as starting from the individual and not by virtue of
relationships among individuals, which tendency will
lead ultimately to formulating individual prerogatives
and to setting down exactly the rights of individuals.
The very idea of natural order appeared to Ockham
contrary to divine omnipotence. Participation in any
reason (logos) whatever, which would impose on God
rules external to Him, would be unacceptable.

Henceforth legal precepts are not and cannot be
based on reason, nor possess any intrinsically good
value. God, all powerful, can order what He pleases.
The law thus finds the justification of its validity simply
in the fact that it is a command. Consequently, Ockham
cannot recognize as sources of civil law any other laws
than the expression of the will, and no longer of nature.
Natural law, in such a conception, becomes again
justice “contained... in writing” (in scripturis...
continetur), and no longer the group of rationally nec-
essary precepts.

The Renaissance. The Renaissance was, in the per-
son of the French thinker, Jean Bodin, to announce
the return to a Stoic natural law. In his picture of
universal law, Jean Bodin resumed the bipartite divi-
sion of common law: natural law, human law. Natural
law is called so because it is innate, ever since the
origin of mankind, and that is why it is always equitable
and just. Bodin extrapolates from the De inventione
(2, 53, 161), but refuses to accept Ulpian's idea of a
law common to man and animals. Opposing human
law to natural law, he depicts natural law as instituted
by men in conformity with nature and in view of their
needs. He includes in natural law the law of peoples
(in Gaius' sense) and the civil law belonging properly
to each nation, but dispenses with natural law for this
purpose when it is a question of defining the art of
law. In Bodin's Republic, the natural faculties of indi-
viduals are recognized as equivalent to laws (natural
laws). Positive law has no other aim than to assure the
individual the legitimate prerogatives which he holds
by virtue of his nature, by the needs and aspirations
of his being. All this does not, however, prevent the
State from being the true sovereign, and the will of
the Prince from being its voice. Absolutism is not in
any case complete for this sovereignty is exercised only
with regard to the positive law. Above the State and
binding it is natural law; the danger is thus conjured
away.

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.

The Eighteenth and Nineteenth Centuries. The
preceding historical exposition has enabled us to dis-
cern at least four forms of natural law: classical, Stoic,
voluntarist, and rational natural law, justifying what
we said about the necessity to qualify the expression.
The school of natural law met with such great success
that it affected the whole political philosophy of the
eighteenth century. Without minimizing the influence

of Grotius and Pufendorf, it was John Locke who
marked most profoundly the later development of this
philosophy in the domain of natural rights and thereby
of individualism, as the result of the publication in
1689/1690 of his Two Treatises of Government. The
individual is at the center of this work which counter-
balanced Hobbes's work. Men are by nature in a state
of perfect freedom and complete equality. However,
freedom is not license. The state of nature possesses
a law which is reason, and reason teaches that no one
should injure another's life, health, freedom, or prop-
erty. Every human being, furthermore, should have the
right to protect his prerogatives drawn from natural
law, chiefly to remain in the free state of nature and
not to be subjected to the political power of anyone
else.

If men do unite in a society, it is by their consent,
and they then form a community. But this community
can live effectively only when a method of arriving
at decisions is adopted, namely, the law of majority
vote. He who enters a society remits power conse-
quently and necessarily to the majority of the members.
The theory of the social contract is in that way clearly
expressed. Now, through this contract the individual
does not give up all his natural rights, but only the
part necessary for the good of the whole society. He
preserves his individual rights, and political authority
is limited in its action by the unconditional respect
for these rights. There is thus a sharing of things. Power
which does not aim at the common good or invokes
the domain reserved for individual rights is tyrannical
and may be resisted by force. Locke's work had an
immediate and enormous success, not only in England,
but also in France and in Germany.

The ideas of Montesquieu, brought up in the school
of natural law, are no less important for the evolution
of political society. His The Spirit of the Laws is built
on natural law in a unified framework: “the laws are
the necessary relations derived from the nature of
things.” Justice is prior to every contingent aspect: “To
say that there is nothing just or unjust except what
the laws order or forbid, is to say that before a circle
is drawn the radii are not equal.” Natural law then
forms the framework and boundary of the powers of
the civil laws, as shown by the title of his famous
chapter “On Civil Laws which are contrary to Natural
Law.”

Montesquieu's essential contribution is not, however,
in the sphere of natural law, which he does not question
or improve upon, but rather in the matter of natural
rights: defense of freedom, essential prerogatives which
flow from freedom, guarantees against arbitrariness on
the part of governing rulers.

In the sphere of ideas, the role of Jean Jacques
Rousseau and of his version of the social contract is
just as important as that of Locke and Montesquieu
although Rousseau's predilection for natural law is
more questionable. He surely admits the postulates of
natural law: men's native freedom and equality. But
the state of nature cannot be maintained among them.
Hence, the necessity of shaping a form of association
which defends and protects with all the common force
the person and property of each; in this association
each one, by uniting with all, obeys only himself, how-
ever, and remains as free as before. This form was
elaborated by starting with a genuine fiction “the gen-
eral will.”

Through the “social contract,” which entails “the
complete alienation or surrender of each member with
all his rights to the community,” the moral collectivity
called the State is established. The aim of the State
is to carry out the general will which cannot err since
no one is unjust to himself. The social contract gives
the State an absolute power; the general will expressed
by the majority necessarily implies the assent of the
less enlightened minority. Of course, citizens will pre-
serve a “natural right” as individual persons, but the
sovereign alone will judge the importance of this right.
This absolutism of the law contained in germ the
absolutism of the State.

All these theories were soon to find a field of appli-
cation. The accession to independence by the United
States had brought with it published declarations which
were marked by national and individualistic natural
law ideas guaranteeing citizens against abuses by the
sovereign power. The Constitution of the State of
Virginia (1776) is prefaced by such a declaration, and
the same is true of the constitutions of the states of
Pennsylvania, Maryland, South Carolina, Vermont,
Massachusetts, and New Hampshire which were
adopted between September 1776 and October 1783.

The French Declaration of the Rights of Man was
inspired by these examples. Recall that this Declaration
proclaimed that the aim of every political association
is “the preservation of the natural and imprescriptible
rights of man,” liberty, property, security, and the right
of resistance to oppression.

Natural law and natural rights triumphed, but the
very extension of the victory of rational natural law
was going to bring about its defeat. The French codes
presented as works of reason—which, moreover, they
were not—appeared as models of legislation which
were supposed to be applicable to other States; this
extrapolation brought in its wake some severe reac-
tions, despite the philosophical support given to
Rousseau's idea by Kant, for example. Kant, in fact,
defended the classical distinction between natural law
and positive law by basing natural law on the rules
that reason recognizes a priori. He thereby made a
rational place for freedom in his otherwise mechanisti-

cally oriented and formal system. Post-Kantians, like
Fichte, put a heavy emphasis on this a priori idea which
gave the idea of law a supremely abstract character
(Stammler).

The reaction came to be organized in Germany as
well as in England and France. The German historical
school was under the leadership of von Savigny, who
published his famous work On the Call of our Time
for Legislation and Science of Law (1814). It contested
the idea that law could be rational, law being on the
contrary the expression of the soul of a people whose
law is latent in its manners and expressed in its customs.
This is, of course, an historical conception, but it is
also a romantic one, and Hegel, who presented himself
as an adversary of Savigny, shared with him an opposi-
tion to natural law. Hegel, on the other hand, identified
the rational with the real. Therefore, the real allows
one to know the rational; the development of history
progressively reveals the mind. Besides, man matures
not through living as an individual, but does so collec-
tively. The State is presented as the synthetic center
of the general interest and good, being the reality of
the moral Idea.

Hegelianism, revived by Kohler at the end of the
nineteenth century, was to find some disciples also in
the Third Reich's official builders of its ideology.

In England, the reaction against natural law began
with Bentham's Principles of Morals and Legislation
(1789). Bentham denounced the theory of natural law
as arbitrary and based his doctrine on social utility.
John Stuart Mill and Herbert Spencer enlarged this
idea, which had an equivalent expression in Germany
in the teleological view of law held by Jhering.

The French reactionary movement was directed not
so much against natural law as against natural rights.
It was led by Joseph de Maistre and Louis de Bonald
who took sharp exception to the abstract nature of man
in their attack on natural law.

The utopian socialism of Saint-Simon and Fourier,
on the other hand, placed the whole emphasis on
society rather than on the individual and gave no value
to law itself. Proudhon is more subtle. Auguste Comte,
finally, set natural law aside for the sake of social
physics.

Marx and Engels cannot be confined to any national
setting because of the widespread import of their mes-
sage. The Communist Manifesto, issued in 1847, took
a firm stand against the idea of objective immutable
or eternal truths. Law results from the economy which
is the substructure (Unterbau) whereas law is the
superstructure (Ueberbau). Law is the will of the ruling
class erected in statutes whose aim is determined by
the material conditions of existence of this class. If one
questions this by asking, “Are there no eternal truths
like liberty, justice, etc. which are true of the whole
society?” the sharp answer is, “Communism abolishes
eternal truths; instead of transforming religion and
morals, it abolishes them.” Positivism appeared, then,
to triumph and natural law seemed destined for an
irrecoverable decline.

But again, a reaction took place. A number of
philosophers and jurists were indeed frightened by the
possible consequences of strictly positivistic theories
of law which ran the risk of validating the worst
iniquities. Thus a new effort soon emerged in juris-
prudence on the side of natural law.

The Contemporary Period. The tendency to return
to the principles of natural law appeared at the end
of the nineteenth century and soon grew rapidly.

Beudant published Individual Law and the State
(1891); Saleilles, in 1902, spoke of “the renaissance of
natural law,” an expression which Charmont picked
up for the title of a volume in which he put together
a series of lectures he had given during the academic
year 1908-09 at Montpellier, translated soon after into
English and published by A. W. Spencer (Boston, 1916).

The second volume of Geny's four-volume work on
Science and Technique in Positive Law (1921-30) bears
the epigraph “irreducible natural law.” It was a new
declaration of a law above the legislator, and opposed
the voluntarism of legal positivism. For some it was
a matter of moral truth that would be imposed on the
legislator, but for others it was really a matter of a
distinctive legal order with the capacity to limit and
even to replace the standards of positive law contrary
to its imperatives.

Man would remain at the center of this renewed
conception of natural law, the idea revolving entirely
around the eminent dignity of the human personality
basic to a series of obligations: respect for life, liberty,
honor, etc. The needs of social life also entail some
obligations: respect for contractual agreements, for
example. The relations of the State and citizen are
subject to these essential rules. Rational ethical duties
are combined with social needs. These theories of
natural law are not, however, reducible to a unified
system.

The Neo-Thomist school challenges the absolute
separation that Kant and more recently Kelsen have
established between the “is” and the “ought.” Man has
an ultimate end directed towards the good by virtue
of man's divine essence, whence the principles of jus-
tice are to be found at the center of natural law. The
rational development of these principles should lead
to a check on positive law, and to adapt the latter
to social requirements by respecting the moral re-
quirements. On this theme there exist many variations
(Leclercq, Coste-Floret, Massis, Maritain, and others).

Michel Villey occupies a marginal place in this move-
ment because he is a resolute Thomist and Aristotelian.
Thanks to his profound analysis, however, he renewed
the usual meaning given to the message of Thomas
Aquinas and Aristotle.

Law is confounded with the quest of justice. Natural
law implies a specific method: that of controversy; it
links up with the studies, in the domain of casuistry,
of the Belgian National Center of Logical Research.

The Protestant school, or better the Protestant vision
of natural law, tries, following Brunner, to construct
a reformed theory of society. Natural law is based
neither on a cosmic nature nor on the abstract individ-
ual, but on man as the concrete bearer of the moral
values of freedom which are prior to positive law, and
on man as a social creature whose vocation is fulfilled
within the social matrix. This idea is not far from
Thomism. The reaction here is accountable as one due
to the amoral character of strictly positive law. The
restricted cognizance, in rules of law, of norms satisfy-
ing only formal requirements clashes too violently with
that dynamic store of moral values carried by social
man within himself, and leads to too many inadmissible
ethical consequences. This reaction can be seen his-
torically in the fields of both the philosophy of law
and of political philosophy (cf. the Declaration of the
Rights of Man, 1789). It has a non-negligible place in
what Wiederkehr calls the “philosophy of the man-
uals,” that is, the philosophy which is not expounded
by those specializing in philosophy of law, but by
writers expounding a branch of positive law. It is found
in various countries in diverse forms (Georges Scelle,
Hauriou, Roubier, Battifol, Del Vecchio, d'Entrèves,
de Jouvenel, and others) and even in Germany, where
Helmut Coïng in 1947 wrote on “The Supreme Princi-
ple of Law, an Inquiry into a new foundation for
Natural Law” (Die obersten Grundsätze des Rechts, Ein
Versuch zur Neubegrundung des Naturrechts). To
Coïng, what is permanent in law are the basic situa-
tions assumed by him to be repeated constantly in
history because of the constant condition of man and
his nature. Among the spiritual needs of man is the
sense of right which renders to each his due (suum
cuique) and to the moral values required by human
coexistence, values which have their source in human
nature. Finally, natural law has preserved and does
preserve a non-negligible place in judicial decisions, a
fact which leads us to formulate a theory of positive
natural law, that is to say, a law which emerges from
the living judicial scene.

Seen from this angle, a certain number of general
principles of law, after being approximated and
brought together, benefit from a common consensus.
On the other hand, natural law continues, as in every
epoch, to experience serious resistance on the part of
positivists whether they are state socialists or sociolo-
gists (Ripert, De Page, Kelsen, Bobbio, Eisemann, and
others).

The validity of legal norms cannot be based on two
eventually irreconcilable foundations; to recognize the
primacy of natural law would mean destroying that
of positive law. Without positive law, however, natural
law would be inexact. Finally, the adversaries of natu-
ral law, analyzing the idea of natural law, challenge
especially its conformity with human nature.

These objections do not appear to be decisive; the
first sin by excess of logic, since the hierarchy estab-
lished between natural law and positive law suffices
to eliminate this objection; since the second objection
is justified only to a lesser degree, it would be more
exact to say that natural law allows the extraction of
general rather than inexact rules; the third objection
is acceptable only to the degree that this law would
necessarily be innate, which is only one way to look
at it. Moreover, historical study asserts that the debate
is far from ended.

III. ANALYSIS OF THE ACTUAL CONCEPT
OF NATURAL LAW AND ITS FUNCTIONS

Natural law appears as a model of positive law (when
the meaning given to this expression is law imposed
by authority, whether it be legislative or judicial), but
it is nothing but a model. Natural law appears equally
as a limitation of positive law, in the sense that it seeks
to guarantee a certain irreducible content of the law,
thereby limiting the liberty of the one who imposes
the law whether he be a legislator or a judge. But it
is no more than a limitation.

Natural law is really nothing but a model or a limit
because it is realized in positive law, as actual judicial
experience proves. Therefore, there is no necessary
conflict between ideal law which ought to be and
positive law which is. The opposition or antinomy, on
the other hand, generally tends to diminish as positive
law takes in a sufficient share of natural law even as
it always takes in a minimum amount of moral value.
But the amount of natural law taken in by positive
law does not affect its quality. Natural law and positive
law are neither opposed to each other nor are they
placed side by side as the elements of a mosaic; they
are complementary to each other and they are inter-
twined. Hence we have to separate out the functions
of natural law in order to analyze it with circum-
spection.

To our understanding, natural law has three juridical
functions: a supplementary function; a function of
control or regulation; a motivating or creative function.
The supplementary function comes into play when it

is proper to close up the gaps in positive law. The
legislator cannot foresee every case of conflict and
consequently cannot formulate rules for all conflicts.
In the same way the judge is limited in his mission
by the cases submitted to him. Judicial rule is thus
necessarily limited even when it has the unconditional
value of obligatory precedent. Certainly many cases
are solved, either by reference to the law, or by refer-
ence to precedent, but there are many hypotheses
where there is an absence both of legislative norms
and of precedents. The juridical order of law (judge-
made law) then has a lacuna or deficiency.

Now, it is a principle that the judge must judge (see,
for example, article 4 of the French civil code) and
cannot abscond from his duty under the pretext of the
law's silence; the non liquet (“the case is not clear”)
is in fact exceptional.

In such a case the judge must himself formulate a
rule or a norm which would undoubtedly be decisive
but which under these circumstances would perforce
not be arbitrary. Accordingly, the judge's tendency is
to refer to principles, and among these, when the
personality of a man is involved in the conflict, the
reference in particular is to the principles of natural
law on account of the human values it comprehends.
Natural law is thus called upon to meet the deficiencies
of judicial ordinances and to supplement positive law;
thereby the rule of natural law becomes the rule of
positive law.

Under these circumstances natural law's function of
control or regulation is nonetheless assured. Indeed,
experience proves that the jurist brings judgments to
bear on the rule of law, conspicuously in countries of
written law. Undoubtedly, positivists challenge this
prerogative: “the judge judges according to the law,
he does not judge the law,” they write freely. But the
contrary is verifiable: the fact is that the jurist com-
pares the positive rule with the model of natural law,
and limits or departs from the rule of positive law when
it seems too obviously to contradict this model. Judges
do so today, and they always have done so.

This regulative function of natural law is obviously
much more disputed than its supplementary role. The
dogma of the separation of powers is really put to the
test since the judicial power eventually understands it
is censuring the work of the legislative power, and is
doing so not by virtue of a fundamental law of the
State charter (the Constitution) but by virtue of un-
written principles, essential principles of justice which
would be imposed over any legislation for the sake of
justice. Such a function is obviously inconceivable in
Kelsen's system or in any system of so-called pure law.
Yet experimental verification leads to the sure conclu-
sion that at least some judges do not hesitate to test
the internal content or intrinsic basis of the rule of
law, and to limit or put aside the rule if its content
is too obviously contrary to the so-called principles of
natural law.

A variant of this attitude is seen in an intermediate
position which consists in putting aside the rule set
by authority insofar as the legislative power has not
clearly expressed its will to infringe, in a limited do-
main, upon a principle generally known to be one of
natural law. In short, the motivating or creative role
of natural law no longer seems disputable. The rule
of natural law serves the legislator as a support for
creating a legal norm and to give the law in this case
more of a declarative value than a created one. The
rule is then supposed to have existed always, if not
in its form at least in its basis, which falls back on
the idea of legal retroactivity, the declarative norm
being only the recognition of a preexisting legal prin-
ciple. We need only think of the judgments relating
to war crimes brought under the positive law of differ-
ent countries in the aftermath of the second world war.

But beside its juridical functions, natural law also
has a metajuridical or political function which is at
least as important; again, as De Page has so subtly
remarked, it is less in this case the notion of natural
law than the idea of natural right which is involved.

A society's law is not a static but a dynamic affair.
Called upon to govern social relations, it is not in-
different to the transformation of these relations, and
must therefore follow this evolution more often than
it leads it. This observation has been made for thou-
sands of years and the principle of law arising from
the fact was already recognized in the “rule of the
old law” (Regulae juris antique) in the Digest of Justin-
ian. This necessary adjustment can be realized thanks
to the adaptation of the existing system of law through
the methods of judicial interpretation, which is in fact
both explicative and creative. However, the possi-
bilities of active interpretation are limited by technical
reasons. First of all, interpretation has to operate under
certain conditions. Although it is possible, by question-
ing the clarity of a juridical rule, to attribute a new
meaning to it, still the jurist being essentially con-
servative, will not admit departing too far from the
old rule. Abrupt mutations do occur, but they are
exceptional and pointed out as such by the doctrine.
Furthermore, the process of interpretation is relatively
slow in its action and in its effects. A sudden change
in jurisprudence has to be prepared. Coming out of
the lower courts it has to be progressively confirmed
by the higher courts. Moreover, a sufficient number
of cases must be presented for the new theory to be
elaborated, made exactly clear, and confirmed. Now
it is a matter of chance as to which kinds of cases that

will allow this new construction. These kinds of cases
for this very reason extend over a relatively long period
of time.

Finally, interpretation only solves a fraction of the
problems that it sets out to resolve, bearing only on
those limited aspects of a case that are necessary for
its litigation. The result is that though the juridical
interpretation plays a central role in the evolution of
the law by acting within the system, it will not always
answer adequately to the requirements of a society in
rapid evolution. In this case the whole system is con-
tested and its replacement by a new system (judged
to be more just, more adequate, and better adapted
to the new needs) is urged by a minority that does
not have the power to change the system. They must
then, for lack of power, convince the others rather than
impose on them; whence, a dialectical phenomenon,
the obligation to justify and to find a basis for the new
system. The passage from the old to the new system
is effective on the rhetorical, that is, argumentative
level. Now what better argument is there than to
maintain that the new system is more in conformity
with the nature of things than the old one, that is to
say, with the model that is provided by natural law?
But it appears immediately that on this hypothesis it
is not natural law so much as the idea of natural law
which is called upon to validate and establish the new
system.

This reversal, demanded in the name of an order
judged to be higher, plays its part no longer on the
level of jurisprudence but on the political plane. It is
the accomplishment of a group of protesters who,
starting with a small number, will try to add to its
ranks an increasingly important mass of citizens and
urge them to demand no longer the evolution of the
existing system but its disqualification and its replace-
ment eventually by force. The idea of natural law is
then called upon to play a metajuridical or political
role by validating a new system intended to be a sub-
stitute for the old one.

We have, in summary, remarked that the notion of
natural right and the idea of natural law play a complex
role, that the functions of natural law or of the idea
of natural right are many whether we remain inside
the legal system or go outside of it, that the concept
of natural right is dynamic and not static, and that
its very imprecise nature permits one to have recourse
to it in many hypotheses. Must we add that because
of this very imprecision, the multiplicity of its possible
meanings, and the diversity of its functions, agreement
about natural law and rights is very hard to obtain
in any controversy? That is why there is such an ex-
traordinary proliferation of irreconcilable opinions on
the subject.

IV. ANALYSIS OF THE CURRENT IDEA
OF NATURAL RIGHTS

According to the theory of natural rights, the dignity
of the human person is supposed to take precedence
over any social order. With Alfred Verdross we may
formulate five propositions which follow from this
axiom:

• (1) each social order must recognize in the person
  a sphere within which the person may act as a
  free and responsible agent;

• (2) the law must protect and guarantee the free
  exercise of a person's action;

• (3) the authority of the governing body must be
  limited;

• (4) respect for this limitation must be guaranteed;

• (5) respect for authority is not absolute, but subor-
  dinate to the dignity of the human person.

Natural rights, being tied by hypothesis to the very
nature of man and prior to any social order, cannot
be conferred by political authority, but should be rec-
ognized and declared by the latter. Despite the lack
of such declarations, these rights exist nonetheless.
Declarations are therefore only a solemn affirmation
of these rights and only a catalogue of the latter, as
well as an expression of the wish to protect these rights.

Natural rights presuppose a fundamental postulate
of equality. They are indeed tied to the idea of justice,
that is, to equal treatment for all those who belong
essentially to the same category. Natural rights, in
short, imply the notion of a human family, in which
no discrimination is permitted whether based on sex,
race, religion, or any other criterion.

The first of these natural rights is obviously freedom.
From it follow the other basic rights, notably property,
the patrimonially protected prolongation of freedom,
the security of guarantees of the free enjoyment and
right of resistance to oppression, which is the supreme
remedy against a political power's failure to respect
natural rights or to be constrained by legal means to
respect those rights. These are, moreover, the other
basic rights recognized by the French Declaration of
the Rights of Man of 1789 (article 2) and restated in
the Constitution of 1791: “the aim of every political
association is the consecration of the natural and
inalienable rights of man. These rights are freedom,
property, security, and the right of resistance to
oppression.”

The expression “natural rights” is consequently often
a synonym for the “rights of man.” In a more technical
sense the expression is reserved for the right of exist-
ence, bodily safety, health, sexual life, personality,
respect for mortal remains, etc.

Bound up with a historico-critical development, the

idea of natural rights is subject to evolution and thereby
to a growing enrichment; a comparison of recent
declarations with those of the eighteenth century is
very enlightening in this respect. The extension of
natural rights to new domains is a constant one, for
example, in the social or cultural domain (see the
Universal Declaration of the Rights of Man of Decem-
ber 10, 1948 which was accepted by the General
Assembly of the United Nations).

CONCLUSION

Nobody today believes in an objective natural law
inscribed in the nature of things which, if it were
transcribed, would suffice to yield a positive law. But
there are very few people today who admit the con-
ception of positive law as a law arbitrarily imposed
by a legally recognized legislative power.

Though it is true, in any case, that law is a human
product, it is not true that it can be arbitrarily imposed
without consideration for the social function which it
must fill. Beyond what Professor Lon Fuller calls the
“inner morality of law,” which consists of a set of rules
that are related to what the Americans call “due proc-
ess,” there is room to consider, in the elaboration and
application of the law, the so-called “nature of things,”
although this “nature of things,” cannot by itself pre-
scribe precise rules of law.

Let us take the example of a piece of legislation
which for the first time authorizes the legislator to
arrange with the greatest liberty a traffic code; no
general principle of law, no rule of justice in this
domain limits his legislative power. Let us suppose he
announces the rule that every vehicle must be driven
on the right side of the road, in the direction it is
moving. In principle, there is no opposition to this
regulation. However, the nature of things intervenes
in the form of a mountainous road where two vehicles
cannot cross at any point, and when a permanent one-
way road cannot be established, it goes without saying
that the local administration, or the judge in its ab-
sence, will have to define the conditions for utilization
of this road, taking account of the location of the places
and the needs of the community. Here, priority would
be given, either to a certain type of vehicle; whether
it were ascending or descending; or temporary or al-
ternative one-way roads or a completely different
solution, compatible with the technical condition and
with the most rational possible utilization of the exist-
ing road, would be organized. But it would not occur
to anybody to claim that the adopted regulation could
be considered completely arbitrary.

A similar problem appears where “the nature of
things” is not of a purely technical matter, but institu-
tional or moral. Given what is considered marriage in
our society, with the relationships between husband
and wife, between parents and their children, what
should the judge do in the present state of legislation,
if in a family that has an infant child, one of the
parents, for example, the father, changes his sex? The
“nature of things” will oblige the judge not to refer
to a predetermined solution, but to find a solution
compatible with the family relationships and with the
interests of all those who are involved in this unusual
situation.

That which has traditionally been qualified as “natu-
ral law” presents a collection of limitations of every
sort left to the discretion of the legislator, of the ad-
ministrator or of the judge, by drawing their attention
to a collection of exigencies which they must respect
in order that the law may fulfill its avowed function.
If the legislator, who acts in a general manner, does
not fulfill this task, the administration or the judicial
power will take charge. If that is not possible for them,
for any reason, the social discontent which would re-
sult, depending on its intensity and extent, may lead
to an opposition to power, to a reversal of the majority,
or even to a reversal of the system.

Indeed, it is only to the degree to which those who
have the authority to legislate, to govern, or to judge,
fulfill their mission in a manner that does not displease
the governed too much, that their authority will suffice
to maintain, without too much effort, obedience to the
law. But, if we admit that this obedience is the func-
tion, not only of brute force, but also of the respect
which the system and its directors inspire, we come
to the conclusion that any realistic study of law cannot
neglect this aspect of the adaptation of juridical solu-
tions to social exigencies, permanent or lasting, which
is historically summed up in the idea of natural law
or natural rights.

BIBLIOGRAPHY

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Alfred Verdross, Abendländische Rechtsphilosophie (Vienna,
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d'Entrèves, B. de Jouvenal, N. Bobbio, M. Prelot, Ch.
Eisenmann (Paris, 1959).

PAUL FORIERS and CHAIM PERELMAN

[See also Constitutionalism; Equality; Freedom; General
Will; Hegelian...; Justice; Law, Common, Concept of,
Due Process; Nature; Positivism; Right and Good;
Romanticism in Post-Kantian Philosophy; Social Contract;
State; Stoicism.]