there exists an order of right of non-human origin, an order prior to, independent of, and dominant over the right of human origin. The same appears when we examine the history of its practical applications. It is a familiar fact to the student of history' that the concept natural law has played a principal rôle in the three great historic movements, three great epochs of civilization: I refer to the development and perfecting of the Roman jurisprudence, the evolution of modern international law, and the making of that revolution which, beginning in France, has established, or is establishing, in all Europe the ascendency of democratic ideas. Now, what is the essential nature of the concept which in these different epochs accomplished such vast results? Let the circumstances of the case make clear what the concept must have been in order to serve such purposes. In the case of the Roman law there was a mass of regulations for human conduct-harsh, cruel, petty, inconvenient. Yet they were supported by the self-interest of considerable classes, by the force of habit, and by that semi-religious reverence for the past and that rational reverence for law which were so strongly ingrained in the Roman character. They belonged to the old order under which the City of the Seven Hills had become the mistress of the world. To maintain them became, in the waning days of the republic, a sort of religion. The mighty Julius had presumed to treat them lightly, to begin clearing the ground for a newer order. Death had stayed his impious course. Augustus, more politic, if not more pious, allied himself with the past. The old order seemed more firmly rooted than ever. Here, as in every such crisis, it was necessary that the reformer should lead men to believe that the old laws and institutions were, after all, of human enactment; that from them there is a legitimate appeal to an order of rights which is perfect as they are imperfect, eternal as they are temporary,

1 See Maine, Ancient Law, ch. iv.

from nature as they are from man. Such an order of rights was set up under the name of Natural Law as a standard into conformity with which the laws should be progressively brought by the edicts of the prætor and the responses of the jurisconsults. In like manner, when Grotius undertook the task of formulating a code to govern the conduct of states in their mutual relations, he evidently had need of the same conception. The phenomenon which Europe presented to him, was that of an almost accidental group of states, having no organization for the enforcement of justice, and having but few conventions which might supply the place of such organization; a group of states which, in the expressive phrase of the times, were, with reference to each other, in a state of nature, i. e., a non-political state. Are these states at liberty to follow the dictates of passion or self-interest? Are there no laws binding on them? Surely there are! answers the school of Grotius. Older and higher than the laws or conventions of man is a justice that needs no enactment by him, a justice which is from nature, a justice which "must forever reign, eternal and imperishable." Exactly similar was the case of the mighty upheaval which ended the domination of the aristocracy. Here was an order of things so evil, so corrupt, so productive of suffering and misery, that to-day it can find scarcely an apologist. Yet it had the advantage of prescription; it was securely in possession; it was sustained by the traditions of the past and by the sanctions of religion. Here, again, there was but one course to pursue. The existing order of rights must be exhibited as a purely human justice in clear antithesis to an extra-human, suprahuman justice. This task was, of course, twofold. To set up the first member of the antithesis, to establish the purely human origin of the existing order-this required a destructive philosophical and theological critique. The task was undertaken and performed all too well. The good and the evil went down in indiscriminate ruin. The second part of the task-the completion of the antithesis by setting

up the original, non-human order as the true standardthis was accomplished no less effectively, and, unfortunately, with many errors of theory and many errors of statement which had serious immediate and remote consequences. These errors were inevitable in the extraordinary moral and intellectual ferment of the times; inevitable in the strange circumstances which assigned to literary men, and particularly to one half-mad, uneducated child of genius the rôle of philosopher and teacher; inevitable when the lack of the public press relegated to the salons, where wit and sentiment and beauty reigned, the settlement of questions the most profound and difficult that can exercise the minds of men; inevitable when the tremendous contrast between the commonest ideal and that incarnation of everything cruel, oppressive, and degrading which constituted the actual order must have appalled the stoutest heart and shaken the soundest judgment. The theoretic excess and confusion thus inevitable were followed by practical excesses unwarranted by the wildest flights of speculation. In consequence, the doctrine of natural law became thoroughly discredited and its part in the mighty drama obscured. But no candid student of history can fail to discover that, in a very important sense, the doctrine of natural law made the revolution possible; and that it accomplished this, not because of the peculiar form of the doctrine then held, not because of its errors and absurdities, but because of this one central epoch-making idea which it affirmed to all men's minds, that in natural and just supremacy over every order of human enactment there is an order of right which has "not been established by opinion, but by nature."1

The correctness of the above analysis of the concept natural law, which finds its essential element to be the assertion of the non-human origin of that law, as opposed to the human origin of positive law must be admitted, it would

1 Cicero, Laws.

seem, by everyone. It certainly is implied by every author who makes the antithesis of positive and natural law his starting-point, even though, in giving a technical definition of the conception, he makes some other element conspicuous. To multiply citations would be both tedious and unnecessary. But there is one book which I had the good fortune to take up when this article was nearly completed, which puts the case so explicitly and so lucidly that I cannot refrain from making a full quotation:

" The term nature is exceedingly well adapted to designate ideas which we wish to look upon as independent of human activity, whether it may be physical or mental, or as being antagonistic to it. The humanly positive is opposed to what seems a natural formation. Hence, the absolute law, supposed to be independent of the human will, has, ever since the earliest days of philosophizing, been denominated the law of nature. '

"1

Having thus indicated the primary, essential, element in the doctrine of natural law, we must now set forth the subordinate conceptions which make up the more positive content of that doctrine as held by individual thinkers. These different conceptions are very numerous; but it is believed that the following conspectus will give a fairly adequate exhibit of the principal ones, and also of their mutual relations.

I. Chief Conceptions entering into the Different Forms of the Doctrine of Natural Law.

1. A law DETERMINED BY the nature of things, i. e., the very essence of things. "Natural laws have their foundations in the very nature and mutual relations of things."—Burlamaqui. “Natural law is that for which there is sufficient reason in the very nature of men and things."-Wolff.

IA. A law DEDUCIBLE by human reason from the very nature of things. This, of course, follows as a corollary from 1, provided we affirm the adequacy of the human reason and understanding. The law of nature . . . is the law, the body of rights, which we deduce from the essential nature of

1 Pulszky, The Theory of Law and Civil Society, p. 77.

man."-Lieber. "Those external laws, the obligatoriness of which can be recognized by reason â priori .. are called natural laws."-Kant.

2. A law EMBODIED in nature. This has generally implied a theistic basis. God is the author of nature. Upon it he has stamped his own righteous will. It is possible in our day to hold this theory on the evolutionist hypothesis that through development the world-order has become an ethical world-order. This conception is rather implied in the theories that follow than independently held.

2A. A law LEARNED FROM, READ OUT OF nature. This is plainly a corollary from 2, when perfect human capacity is admitted. It appears in several different forms.

2Aa. A law LEARNED FROM a broad and reasonable interpretation of ALL nature. This idea appears more or less in most of the eighteenth-century writers. The theist commonly finds no difficulty in holding this idea coincidently with 1 and 1A. It supplements the knowledge of natural law derived from other sources.

2Ab. A law EMBODIED IN and learned FROM the HIGHEST PART of nature, i. e., REASON. The Stoic doctrine. Here belong the "innate-ideas" doctrine, and some forms of intuitionism perhaps. A view more widely confessed than any other. Probably not usually clearly distinguished from IA by those who hold it. Certainly it was not in antiquity. Not easily separable from the next idea. 2Ac. A LAW WRITTEN ON and to be LEARNED FROM the moral nature of man, the heart, or CONSCIENCE. This brings forward the emotional side in contrast with purely intellective reason. "The will of God as revealed in the heart and conscience of those who seek to know it."Rolleston's Epictetus. Those principles which are implanted in the heart and mind of every man.”—Levi. This and the preceding ideas very naturally led to the emphasis of the fact of common acceptance by the nations as evidence of the truly essential character of a rule of right. Hence the identification of jus naturale and jus gentium. "The jus gentium was to the Romans the law of nature found in and applicable to all men and to all countries."—Levi.

2Ad. A law to be learned from the instinctive nature of man. This hardly had an independent existence. It, of course, appears under 2Aa, i. e., in interrogating nature as a whole, and in that connection it received undue emphasis from the eighteenth-century writers.