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.
