AMERICAN AND FRENCH NATURAL LAW DOCTRINES
BY THE time political theories
and customs were taking definite shape in the American Colonies the
characteristic ideas relating to natural law in England and in Continental
Europe had been introduced into the environment of a pioneer rural
civilization. But before the transmission took place a change in emphasis was
under way which was accentuated under the peculiar conditions prevailing in
1. Transition from Natural Law Doctrines to Theories of Natural
Rights. When the standard works of Gentilis, Grotius, Pufendorf, and
Burlamaqui aimed to present the basic principles of the public and private law
of Europe natural law doctrines were generally approved. As the importance of
the canon law declined the doctrines were limited in their applications and, in
certain countries, except for their use as critical standards to oppose the
arbitrary and dictatorial policies of princes and kings, they were sparingly
used in the practical operation of the law. But all branches of the law were
subjected to natural law influences.
The original concepts of natural law, however, were to undergo a marked
transformation, when the Reformation leaders, following Roman and mediaeval
authorities, gave great significance in political and religious matters to the
rights and liberties of the individual. Instead of natural law or rules of
superior validity jus naturale was translated into a theory of natural
rights — qualities inherent in man which it was the duty of the state to
protect. Grotius was one of the foremost mediaeval thinkers to find a source of
natural rights in certain inherent qualities belonging to the individual. These
rights, which were sanctioned by natural law, might be discovered by human
reason. Montesquieu and the
Physiocrats in France and English philosophers also formulated theories of
natural rights as inherent in the individual, with certain formulas derived
therefrom designed to limit all public authorities. Moreover, the distinction suggested several
centuries earlier that rulers were bound not only by the primary laws of nature
but also by certain fundamental secondary natural laws which were expressed in
positive laws, was formally enunciated.
One of the popular writers of the eighteenth century, who based his
political philosophy on rights inherent in the individual, was Vattel, whose
volume on The Law of Nations appeared in many editions, French, English,
and German. As a representative
authority Vattel's views, as well as those of Grotius, Pufendorf, and
Burlamaqui, were extensively studied and followed during the formative period
of American law. Vattel, who was a follower of Frederic von Wolff, began to
translate Wolff's work, Jus Naturae Methodo Scientifica Pertractatum,
and to render it available to the public and the result was that he put the
doctrines of Wolff into such form that a relatively new and popular treatise
To Vattel, it was regarded as settled on the basis of natural law "that
liberty and independence belong to man by his very nature, and that they cannot
be taken from him without his consent." Moreover, "the whole Nation,
whose common will is but the outcome of the united wills of the citizens,
remains subject to the laws of nature, and is bound to respect them in all its
undertakings.... We must therefore," he continued, "apply to nations
the rules of the natural law to discover what are their obligations and their
rights; hence, the law of Nations is in its origin merely the law of
Nature applied to Nations."
Vattel regarded this law immutable as being founded "on the nature of
things," and particularly "on the nature of man" and hence he
thought, "nations can not alter it by agreement, nor individually or
mutually release themselves from it." Vattel aided in the movement to establish
written constitutions, as the foundation of public authority. He maintained
that the fundamental laws enacted by the nation itself are not subject to
change by the legislature. The distinction between fundamental and ordinary law
was clearly drawn, and American
legal authorities soon began to make practical applications of the distinction.
With the writings of Grotius, Pufendorf, Wolff, and Vattel attention was
directed to a state of nature — a golden age which existed at the
beginning of society in which the laws of nature, as affecting the relations of
individuals and of communities, predominated. These laws of nature were of the immutable
type, and it was not long before jurists and politicians began to think of man
as emerging from this state of nature with a panoply of rights belonging to him
as an individual. Political and economic conditions in Europe and in America
were taking the shape which gave vital and legal force to the emerging concept
of the natural inherent and inalienable rights of man.
2. American Theories of Natural Law and of Inalienable Rights. In the
process of transplanting fundamental law notions to the American Colonies,
conditions were favorable not only to the reception of higher law theories but
also to their incorporation as basic doctrines of public and private law. The
colonists brought with them many of the current ideas of the common law as the
foundation of their legal arrangements. But the law was as a rule applied by
those untrained in the technical procedure and rules of the English system.
Statutes applicable to local conditions were frequently lacking. Courts and
judges found themselves called upon to make law for the occasion with little
else to guide them except the Bible, the precepts of natural law or natural
justice, and the community sentiment of what ought to be right and just. Under
such circumstances appeals were frequently made to natural law or to allied
The pioneer rural conditions in which most of the colonists lived encouraged
self-reliance not only in their economic and social conditions but also in
their political ideas. Dependent for the most part upon their own efforts for a
livelihood, they also had to assume a large share of responsibility in
protecting individual and community rights. With the organized evidences of
government far removed from the ordinary activities of life it was customary to
place a high value on the assertion and protection of individual personal
rights. Moreover, the normal methods of making and enforcing law tended to give
special value to doctrines of natural law. Under the primitive conditions which
prevailed, natural rights and natural law were regarded either as identical or
as merely two phases of the same concept. Having theoretically, at least,
adopted the rules and principles of the common law the prevailing English views
as to the supremacy of the law were accepted. And the higher law doctrine as
later announced by Blackstone gave sanction to the belief that certain laws
were superior to all civil enactments. The judges in the Colonies frequently
indicated their belief in the natural laws, which were considered true laws,
and legislation was thought to be binding only in so far as it was an
expression of these laws.
The process of the transmission of natural law theories to the new
environment was hastened by the appeal to higher law ideas by the leaders of
the revolt against Great Britain and by the philosophic trend of the eighteenth
century to place uppermost in the political sphere the natural rights of the
The popularity of the concepts of natural rights and of natural law was
greatly increased when they were espoused by the leaders of the American and
French Revolutions. The American Revolution not only came first but also
resulted in a more specific formulation of natural rights as inherent in the
individual. James Otis, Samuel Adams, John Adams, Thomas Paine, Patrick Henry, and Thomas
Jefferson made frequent use of the
natural rights doctrine to support the right of rebellion against the arbitrary
exercise of governmental powers. The Declaration of Independence gave a
standard formula for the use of advocates of the doctrine in the dictum that
men are "endowed by their Creator with certain unalienable rights, that
among these are Life, Liberty, and the pursuit of Happiness." Many of the
Revolutionary patriots believed with Thomas Dickinson that liberties do not
result from charters; charters rather are in the nature of declarations of
pre-existing rights. They are founded, John Adams claimed, "in the frame
of human nature, rooted in the constitution of the intellectual and moral
world." Until the adoption of
the Declaration of Independence it was customary to regard these rights as
having their sanction in the British Constitution. "The law of nature and the law of
revelation are both divine; they flow, though in different channels from the
same adorable source," said James Wilson. In the course of his law
Lectures he frequently extolled the instinctive or intuitive faculties
whereby man arrived at principles of right and justice.
The doctrine of the freedom and equality of men in their natural state, such
as that described by Seneca and formulated into a dogma of mediaeval thought,
was translated into a principle of political action. Governments, to justify
their existence, were to be measured by the security they furnished for the
natural principles of freedom and of equality.
Concepts of law in North America in the eighteenth and in the early
nineteenth centuries were molded and, in considerable part, determined under
the influence of the prevailing doctrine of inalienable rights and this idea
gave a peculiar turn to all legal thinking. The law of the Colonies, the public
papers and charters of the Revolutionary period, and the first written
constitutions with specific enumeration of certain natural and inalienable
rights, bear witness to the conviction that such rights were thought to exist,
and that governments were designed primarily to preserve them. Legislative enactments contrary to natural
law or natural justice were regarded as ipso facto void and it was
declared to be the duty of all persons to resist their enforcement. The view of
the English philosopher that "that which is not just is not law and that
which is not law ought not to be obeyed," was not infrequently taken as the starting
point in the application of legal rules. Moreover, the belief in natural law
and in inalienable rights aided materially in giving support to the courts when
they were asserting the right to declare void enactments which interfered with
these natural rights or contravened the express terms of written
The natural law philosophy, as a background for legal thinking, which was a
part of the heritage of Western Europe and of America in the eighteenth
century, was extensively used in America, where it was transformed into
laissez faire individualistic dogmas under frontier methods of
administering justice. It was also identified with the immemorial rights of
Englishmen as declared by Coke and Blackstone. Into the philosophical mold of
Grotius, Pufendorf, Burlamaqui, and Vattel was injected some of the
characteristic ideas of Coke's Second Institute and of Blackstone's
Commentaries and there was created a unique form of natural law,
supposed to be universal in its applications.
American political and legal theorists made use of every phase of natural
law thinking. Judges with little legal training and with a scarcity of law
books, when precepts from the Bible were not applicable, turned to natural law
as a convenient symbol for the divine sanction of laws, after the fashion of
the mediaeval canonists. To Paine and Jefferson, as with certain Greek
thinkers, there was a disposition to recur to the deistic emphasis upon the
laws of nature and to associate the concept with underlying principles of
natural phenomena. Others identified the rights of nature with the rights of
Englishmen. Though not so well known, Coke's appeal to natural law and to the
higher reason of the common law was called upon by legal advocates when
attacking obnoxious acts of the colonial legislatures, just as higher laws were
appealed to in resisting the arbitrary acts of the King or of Parliament. The
appeal to natural rights and natural law as a justification for the right of
revolution was one of the chief features of the formative period of American
Natural law was also conceived as an ideal to which all just laws must
conform, as from the viewpoint of
certain Greek and Roman jurists, and, in this sense, it was a convenient
doctrine to temper the arbitrary features of a system of strict legal rules. It
thus became an instrument of legal growth. Conceptions of a state of nature
wherein men enjoyed natural freedom and equality conditioned the thinking of
most of the Revolutionary leaders and through them a principle was announced
which has proved to be one of the most insistent and fertile concepts of
American legal thought, namely, that each individual is entitled to the equal
protection of the laws.
Assuming a state of nature antedating organized political life wherein man
was possessed of inherent and inalienable rights arising from the laws of
nature, and basing government on a social compact resulting from this
condition, there was formulated in the representative American constitution a
group of rights belonging to the individual and of such superior sanctity that
political society was formed primarily to preserve them. Out of a state of
nature and emanating from the laws of nature arose the familiar inalienable
rights which were superior to the state itself and, in fact, above all forms of
political or social control. The theory of natural rights, which is the
characteristic American interpretation of natural law, became the foundation
for the concept of limited government which gained such a strong foothold in
the United States. It gave the theoretical basis for the American doctrine of
civil liberty which set the rights of the individual against the government and
insisted on the formulation of limits on all forms of political
Thus the democratic ideas of the monarchomachs and of the representative
theorists of England and of Continental Europe were made more concrete and more
directly applicable to human affairs. It seems strange that this revival of the
general acceptance of ideas of natural law and natural rights should have
preceded by only a few decades a marked decline of the belief in natural laws
of superior sanctity. Before considering the causes for this decline, it is
necessary to trace briefly a similar revival of ancient superior law notions in
3. French Natural Law Concepts. The French system of law, arising as
a direct development from the Roman law, was molded in its transmission through
mediaeval channels in the light of the Roman and mediaeval concepts of natural
law. Each variety of the concept characteristic of these periods had advocates
in France. The divine sources and sanctions of natural law were particularly
emphasized by French jurists of the Catholic faith. When human reason was given
an important rôle in discovering natural law, it was in France that this
rationalized natural law found many interpreters. The French attitude was well
stated by Guizot, who said: "Any action, or any authority of man over man
is legitimate only if it is in accord with reason, justice and truth, which are
based on the law of God." It
was not until the modern period that mediaeval canon law, with its natural law
principles, and local customs, often arising from similar sources, were
replaced by laws emanating from a king or assembly. Fostering ideas of
permanence and uniformity amidst the variations in the customary law and in the
diversities of the provincial practices the natural law theories were looked
upon as a factor of unity; and those favoring a united France became devoted
exponents of the law of nature philosophy.
When the French kings in their conflict with the Papacy fell back on the
practices of the Roman imperialists, they asserted principles of political
supremacy which were destined to weaken the controlling force of natural law.
Bodin, as we have seen, became the philosopher of royal absolutism and he
relegated natural law to principles which were merely a guide to the king's
conscience. To those bent upon establishing an unlimited political sovereign,
superior natural laws were an obstacle to be obliterated. But higher law ideas
were too well established in the legal background of French thought to be
entirely discarded. Moreover, the efforts to make of the king a ruler without
limits on his authority soon brought an inevitable reaction in which natural
law ideas again came to the forefront. The economic and political conditions of
the Ancien Regime prepared the way for the French Declaration of the Rights of
Prior to the French Revolution the Physiocrats advocated the doctrine of
natural rights. There is, in effect, observed Quesnay, above positive laws, a
body of laws, sovereign, immutable, and inviolable. Legal rules which conform
to this body of laws are valid; those which are contrary thereto are
void. The natural rights of the
individual, they contended, comprised three species of property. "First,
the property of his person which includes the right to use all his faculties,
and hence the right to labor; Second, movable property which consists of the
results of his labor; Third, landed property." To the Physiocrats laws were rules of
justice and morality; they were not made by men but were merely discovered.
They believed that certain laws, especially those relating to liberty and
property, were essential to the social order and that only ordinances to carry
out such laws could be made by legislatures or executives. The essence of the Physiocratic doctrine was
laissez faire in character, or to the effect that "economic law
might be depended upon to bring about the best good of men and nations, if
governments kept their hands off." They insisted that governmental action ought
to be restricted within the narrowest limits and individual activity ought to
have every possible opportunity for expression — a doctrine which has left
its impress on many of the aspects of American legal thinking. But in certain
respects the ideas of the Physiocrats, as those of their predecessors, tended
to favor state absolutism.
The French kings of the seventeenth and eighteenth centuries sought to
assert complete control over the social and political life of the nation.
Bossuet, the defender of this regime, followed Bodin and Hobbes and based the
origin of all governments on force. Emerging doctrines of nationalism gave
encouragement to the assertion of principles of state absolutism. The doctrine
of individual rights as a basis to check the public powers had not yet
impregnated French legal thought. Mediaeval doctrines of a superior natural
law, however, served to give a sanction to the assertion of a theory of
individual natural rights. Extreme instances of the use of arbitrary authority
by the kings were paving the way for resistance sanctioned again by appeals to
higher laws. Political theories often take their peculiar forms because of
attempts on the part of those interested to defend a cause. And in this case
Protestants and Catholics following theories earlier formulated in Europe
advocated limits on royal authority in the interest of the people.
Though the old French parlements performed in the main judicial
functions as courts of the king over which he presided and whose judgments he
might reverse, the natural division of powers which resulted led to the
assumption of a share of the political powers by these bodies. To them was accorded the duty of registering
the royal edicts and in doing so they began to question the validity of the
acts of the king or of his agents. As early as 1648 the parlements had
proclaimed the necessity of "a legal order" and as a basis for such
an order proposed certain fundamental laws or fundamental principles which were
so essential that the king could not change them. "Thus there appeared in an absolute
monarchy, by the simple fact of the separation of powers, an organ of
resistance and of control. The parlement, recruited from the higher
middle class, claimed to be the guardian of the fundamental laws of the kingdom
and considered itself as a moderating power designed to curb the excesses of
royal absolutism." A
convenient vagueness in the term "fundamental laws" encouraged the
members of the parlements to intervene on behalf of the people whenever
a favorable opportunity occurred.
If need be the king could in the end secure his way by arresting and banishing
the leaders of the parlements, but these bodies regarded themselves as
mediators between the king and the people and served to keep before the public
a belief in fundamental laws which the king could not change.
Some of the cahiers issued preceding the French Revolution in
resisting certain decrees frankly based their protests on the doctrine of
fundamental and superior laws.
These mild protests accomplished little toward checking the tendencies in the
direction of royal absolutism. But they strengthened the insistence on higher
law ideas which were soon to find expression in the Declaration of the Rights
of Man and of the Citizen.
Just as the leaders of the American Revolution appealed to the doctrine of
natural and inalienable rights, so those who directed the French Revolution
recognized as a fundamental truth the existence of similar rights. A controversy has ensued among scholars as
to whether the draftsmen of the French declaration were guided by the doctrines
of Montesquieu and of Rousseau as well as of their predecessors or by the
previous American declarations.
Whatever may be the merits of the claims of the partisans on each side it was
the French Declaration which heralded to the world the great principles of
natural and inalienable rights which were considered superior to all
governments and which it was the prime duty of all democratic states to
protect. The doctrine of natural
rights again based on the natural and necessary laws of a state of nature was
made the very cornerstone of a political system. Differing from the major
portions of the bills of rights of the American constitutions, which were
comprised mainly of some of the hard-won privileges which Englishmen had
acquired in centuries of conflict with their rulers, the French provisions were
rather in the nature of vague theories or platitudes which had little practical
meaning to the Frenchmen of the time. Similar theories were, of course,
included in the Declaration of Independence and in certain provisions of the
Though the Declaration of the Rights of Man and the political and social
philosophy involved therein left a permanent impression upon European thought,
the conservative reaction which followed the French Revolution brought into
disrepute natural and inalienable rights concepts which were regarded akin to
ideas of violence and terrorism. It became unpopular in certain quarters to
support the law of nature doctrines or to appeal to higher laws than those
promulgated by the rulers. But Roman law principles and various ideas connected
therewith were conducive to the continuance of natural law doctrines. And
during the nineteenth century many treatises appeared, the object of which was
to adapt natural law phrases prevalent in codes and in the customary legal
terminology to the peculiar conditions of the time. Various schools of legal
philosophy continued to be protagonists of natural law theories when in
political circles these theories were regarded as exploded vagaries. To the
efforts to keep alive natural law doctrines attention will be directed later.
But these efforts for the time being seemed to be obscured by the persistent
influences designed to discredit natural law theories.
4. The Decline of the Natural Rights Philosophy. As the enthusiasm
waned which fostered eighteenth-century political radicalism in America and in
France and the radical movement came into disrepute in all countries it became
popular to discredit the natural rights thinking. To the conservative leaders
who took charge of the political destinies of the European nations after the
French Revolution the inalienable rights doctrine was "an invitation to
insurrection and a persistent cause of anarchy." And when the reaction from the practices and
the political philosophy of the American and the French Revolutions gained
ascendency in the United States one of the chief objectives was to discredit
Thomas Jefferson and the tenets of the Declaration of Independence. Both in politics and in religion,
conservatism was in control, and men were disposed to welcome theories which
made for social stability. It is
well to note that it was the politicians who were seeking greater political
authority and those who were inclined to support absolutism in government who
were chiefly concerned in the repudiation of natural rights and related natural
law theories. Local justices in the application of the law to concrete cases
and the people generally clung to natural law concepts long after they were
thought to be repudiated in high political circles.
The anti-natural rights doctrine, according to Mr. Becker, became the
accepted creed of all those who wished to be classed neither with the
reactionaries nor the revolutionists, those liberal-conservatives and
conservative-liberals who realized that they lived in a changing world but
ardently prayed that it might not change too rapidly.
To prevent the world from changing too rapidly, nothing is more effective
than to look with admiration on the past.
A combination of factors tended to discredit the natural rights doctrine.
Politically the doctrine was used to justify not alone political democracy but
also the free right of the people to change their governments — namely, as
a sanction for the right of revolution. When the right to revolt led to the Reign of
Terror and its aftermath the political reaction that followed in Europe placed
the stamp of disgrace on the much-heralded doctrines of the revolutionary
period. Michel finds that the
reaction against the individualistic doctrines of the French Revolution was
fairly complete by 1825. French political thought with the exception of small
groups had turned away from the belief in natural rights, anterior and superior
to the state. Rights were the result of laws and laws came from a state or
political power with supreme authority. Public powers were limited only by the
personal God of De Bonald or the Absolute of Hegel, but the sovereign alone was
to be judge of the nature of these limits. The attack on eighteenth-century
individualism was encouraged and strengthened also by the economic doctrines
advocated by Saint Simon and his followers. There is no place in his system for
the idea of rights but instead of rights he directs attention to interests.
In America the conservative reaction which followed the periods of the
Revolution and of the Confederation did not so quickly discredit the natural
rights philosophy of the Declaration of Independence, but the defenders of this
philosophy grew fewer in number while the critics and opponents
increased. Some authors, Dr.
like Chipman, Hurlbut, Lieber, and Gerrit Smith, retain almost
unchanged the traditional American theory that the basis of all laws and of all
rights is to be found in the immutable truths taught by nature and to be
learned by men through the use of reason, conscience, and the revealed work of
God. Others, like Calhoun, Brownson, Fitzhugh, and Hildreth, discard the idea
that there are certain inalienable rights derived from nature, although in
every case holding that there are basic laws or principles which underlie all
government and all of the social and economic relationships of men.
He finds only one writer, Thomas Cooper, who attempts to refute the whole
natural law theory.
In England the natural rights theories were attacked also quite vigorously
by the Social-Utilitarians who repudiated the foremost eighteenth-century
political theories and made social utility the test of political institutions.
Bentham, one of the leaders of this school, lent the weight of his influence
against the natural law doctrines. For the idea that men had rights by nature
which the sovereign was compelled to respect Bentham felt great contempt, nor
did he have any confidence in the effort to place limitations on the supreme
authority in a state. "To
maintain," says Bentham, "that there is a natural right and to impose
it as a limit to positive laws, to say that law cannot go against natural
right, to recognize, in consequence, the right which attacks law, which
overturns and annuls it, is at once to render all government impossible and to
defy reason." He and his
associates could see no limits to the sovereign power except restraints through
the judgment of those in whom this power was reposed.
The historic method which grew in favor in history and in politics admitted
that rights were founded in nature but identified nature with history and
affirmed that the institutions of any nation were properly but an expression of
the life of the people. By a change in the definition of nature the former
concepts were made the basis for anti-revolutionary philosophies.
Historians such as Ranke and
Renan, the philosopher,
Hegel, and the sociologist Auguste
Comte also joined the ranks of
those who sought effectively to dispose of the ideas of natural rights superior
to man-made regulations. And the historical school of jurists led by Savigny
repudiated the eighteenth-century doctrines of natural rights and of a law of
nature. To this school law existed independently of the state. It was the
creation of the national consciousness or the spirit of the people and was
evidenced by their customary habits. It was merely the function of the state to
discover and enforce these customary laws. Rights do not belong to man, as such,
Savigny maintained, they are the result of positive laws. And positive laws,
like language, morals, social and religious institutions, develop through the
customs, habits, and traditions of a people. And with the aid of the historical
jurists the older concepts of the law of nature and of natural rights were to
give way to legal ideas as an outgrowth of history. Law was conceived as the
unfolding of ideas of right through the customs and traditions to which people
give obedience. The philosophic
forces at work in this development are suggestively characterized by Justice
Cardozo, who observes that
the seventeenth and eighteenth centuries put their faith in
Nature, and "their dominant philosophy was that of natural law."
Preordained and immutable were the patterns to which conformity was due. The
nineteenth century put its faith in unconscious and undirected growth; and
Nature dethroned as an exemplar, was made to yield place to History. "None
of the nineteenth-century interpretations will hear of an element of creative
activity of men as lawyers, judges, writers of books, legislators. They have
nothing to say about juristic endeavors to reconcile or harmonize or compromise
overlapping claims by creative reason or an inventive process of trial and
error. They think of the phenomena of legal development as events, as if men
were not acting in the bringing about of every one of them." In the
thought of this school, law is in the grip of forces stronger than itself,
which shape the path of its advance.
Thus the historical school of jurisprudence set about to destroy all
vestiges of the ideas of natural law or natural rights.
The natural rights philosophy received its most direct blow from the jurist
John Austin and his successors who founded the analytical school of
jurisprudence, and the advocates of the German theory that the state is the
sole source and sanction of law, such as Ihering, Laband, and Jellinek. The
Austinians conceived as the essence of the state a sovereign — a supreme,
irresistible, absolute, and uncontrolled authority. The rules made or
sanctioned by this authority were laws — all other rules were merely
customs, habits, or moral practices. Questions relative to justice and to the
aims of the law were consigned to the domain of positive morality. Thus much of public law was denied the
status of law, and the familiar dogmas of natural law and of inalienable rights
were utterly repudiated. To the followers of Austin the attack upon natural
rights, so far as such rights are accorded legal significance, is one which
must be continued until no trace of the concept is left. Similar views were
advocated by the supporters of the Macht Politik in Germany.
Many factors and influences combined, therefore, to discredit political
theorizing based on the doctrine of natural rights until it was referred to as
"an exploded theory no longer believed in by any one of
Natural law was absorbed as a feature of American public and private law at
a time when the theories on which such a law was based were declining in
Europe. The decadence of natural law concepts which affected the political
circles mainly and which was characteristic of the decades in the middle of the
nineteenth century in most European countries had its counterpart in the United
States in somewhat narrowing the scope of the law of nature thinking and in
giving the term a rigidity which tended to support the existing legal order. It
was under these conditions that the courts fostered the gradual acceptance of
some principles of natural law in the public law of the United States.
1. See De Jure Belli ac Pacis, Book I, chap. 1.
2. Recognizing that the formulation and classification
of the inborn and indestructible rights of the individual belonged to a later
stage in the growth of the theory of natural law, Gierke observed that
mediaeval thought was filled with such ideas. Political Theories of the
Middle Ages, p. 81; cf. also, Gierke, Johannes Althusius, pp. 107
ff. It is obvious that to attribute the origin of the theory of natural rights
to the Protestant revolt is incorrect. Cf. David G. Ritchie, Natural Rights:
A criticism of some political and ethical conceptions (3d ed., London,
1916), p. 6.
3. Gierke, Johannes Althusius, p. 175. For the
effort to distinguish between immutable laws which do or do not admit of
exceptions, see Domat, The Civil Law in its Natural Order, trans. by Wm.
Strahan (2d ed., London, 1737), I, 64.
4. M. de Vattel, Le droit des gens ou principes de
la loi naturelle appliques a la conduite et aux affaires des Nations et des
Souverains (ed. of 1758) reproduced in the Classics of International
Law, edited by James Brown Scott and published by the Carnegie Institution
of Washington (1916).
5. Vattel, The Law of Nations, III, 3, 4.
Professor Reeves thinks that the "impress of the law of nature upon the
American ideas of the law of nations seems upon the whole not to be
great." His view is apparently influenced by the tendency of American
lawyers to depreciate natural law ideas. J. S. Reeves, "The Influence of
the Law of Nature upon International Law in the United States,"
American Journal of International Law, III (1909), 547.
6. The Law of Nations, III, chap. 3.
7. Cf. Introduction by Albert de Lapradelle, in
Vattel, op. cit.. III, viii. John Milton claimed, in the Gangreana, that
"all men are by nature the sons of Adam, and from him have legitimately
derived natural propriety [property], right and freedom. By natural birth all
men are equally and alike born to like propriety, liberty and freedom."
8. One reason why Englishmen have given less
consideration to natural rights, it is claimed, is that they have regarded
their liberties as due to acquired rights rather than to natural rights. To
them the concept "natural" became identical with the term
"traditional." Jones, Cambridge Legal Essays (Cambridge,
1926), p. 228.
9. According to the classical natural law theory
prevalent in colonial times all positive law was "a reflection of an ideal
body of perfect rules demonstrable by reason, and valid for all times, all
places and all men. Positive legal precepts got their validity from their
conformity to these ideals" Pound, "The Theory of Judicial
Decision," Harvard Law Review, XXXVI (May, 1923), 802.
10. P. S. Reinsch, "Colonial Common Law,"
Select Essays in Anglo-American Legal History, I, 376, 413; Professor
Reinsch observes that "the analytical theory of Hobbes, making positive
law independent of moral considerations and basing it on a sovereign will, was
not accepted at that time. The law of God, the law of nature, was looked upon
as the true law." For citations of representative colonial opinions see B
F. Wright, Jr , "Natural Law in American Political Theory,"
Southwestern Political and Social Science Quarterly, IV (December,
1923), 202, 206. Cf. for example, John Wise, "A Vindication of the
Government of New England Churches" — a pre-revolutionary treatise
based on the natural law doctrines of Pufendorf.
11. Professor McIlwain maintains that the colonists
based their argument for freedom from control by Parliament, first on their
charters; second, on the contention "that the English constitution,
founded on natural law, was a free constitution, guaranteeing to all its
subjects wherever they might be the fundamental rights incident to free
government"; and third, on a "non-constitutional appeal to natural
law, no longer as a part of the British constitution, but as the rights of man
in general." The American Revolution. A constitutional
interpretation (New York, 1923), p. 152.
12. John Adams thought there were "rights
antecedent to all earthly government — Rights, that cannot be repealed or
restrained by human laws — Rights, derived from the great Legislator of
the Universe." Works, ed. by C. F. Adams (Boston, 1865), III, 449.
See also Otis, The Rights of the British Colonies Asserted and Proved,
pp. 11, 16.; Wells, Life of Samuel Adams (Boston, 1865), I, 16-23,
70-77; and Thomas Paine, The Rights of Man.
13. For Jefferson's views, see Writings (Ford's
ed.), V, 147, 329; VI, 87, 88, 102, 517; VII, 172, 406.
It was asserted that colonial rights were based on "the immutable laws
of nature, the principles of the English Constitution and the several charters
or compacts." Journals of the Continental Congress, ed. by Ford
(Washington, 1004), I, 67.
James Otis in his argument against writs of assistance relied on natural
rights and fundamental law. Cf. The Rights of the British Colonies; also
C. H. McIlwain, op. cit., and my article "The Law of Nature in
State and Federal Judicial Decisions," Yale Law Journal, XXV (June,
1916), 617, 623.
Jefferson in the Declaration of Independence in qualifying the inalienable
rights used the English formula "life, liberty and the pursuit of
happiness." The Virginia constitution asserted that: "All men are by
nature equally free and independent, and have certain inherent rights, of
which, when they enter into a state of society, they cannot, by any compact,
deprive or divest their posterity; namely, the enjoyment of life and liberty,
with the means of acquiring and possessing property, and pursuing and obtaining
happiness and safety." Constitution of Virginia, June 12, 1776.
The right to revolt was characterized in the Massachusetts declaration as
"incontestable, unalienable and undefeasible."
14. See B. F. Wright, Jr , "American
Interpretations of Natural Law," American Political Science Review,
XX (Aug. 1926), 524 ff.
15. Samuel Adams, Writings (ed. by H. A.
Cushing, 1904), I, 65. "The primary, absolute, natural rights of
Englishmen as frequently declared in acts of Parliament from Magna Carta to
this day, are personal security, personal liberty, and private property."
Wells, Life of Samuel Adams, I, 75-77.
16. Works (ed. by Andrews), 1, 106, 117, 124.
Wilson expressed the current opinion among lawyers and judges during the
Revolutionary period when he wrote: "The law of nature is immutable; not
by the effect of an arbitrary disposition, but because it has its foundation in
the nature, constitution, and mutual relations of men and things."
17. Jefferson believed that the "will of the
majority is in all cases to prevail, but that will to be rightful, must be
reasonable; that the minority possess equal rights, which equal laws must
protect, and to violate would be oppression" Legitimate restraints on the
rule of the majority were inalienable rights and the laws of reason.
Works, VIII, 2. When Secretary of State and President, Jefferson
continued to apply doctrines of natural right and natural law. "The
evidence of this natural right [expatriation], like that of our right to life,
liberty, the use of our faculties, the pursuit of happiness, is not left to the
feeble and sophisticated investigations of reason but is impressed on the sense
of every man." The Writings of Thomas Jefferson (ed. by H. A.
Washington), VII, 73. He also defended the right of navigation on the
Mississippi on the broad ground of the law of nature and of nations.
18. Sydney, Discourses Concerning Government,
Book III, chap. 11 See also, Pound, "Comparative Law in the Formation of
American Common Law," Acta Academiae Universalis Jurisprudentiae
Comparativae (1928), I, 183 ff.
19. The American Doctrine of Judicial
Supremacy, pp. 18 ff., and D. O. Wagner, "Some Antecedents of the
American Doctrine of Judicial Review," Political Science Quarterly,
XL (December, 1925), 561 ff.
20. Pound, "The Theory of Judicial
Decision," Harv. Law Rev., XXXVI, pp. 804, 805. Hamilton identified
the common law and natural law. Works (ed by Lodge), VIII, 421.
In the disputes between the English political leaders and the colonists of
America, Dr. Wright notes that those "who had read the orations of Cicero,
the writings of Grotius and Vattel, Pufendorf and Burlamaqui, Locke and
Blackstone, who had listened to sermons upon the eternal supremacy of the laws
of God or had perused the arguments of the deists found in such philosophy
controversial weapons suited to their needs" See, "American
Interpretations of Natural Law," Amer. Pol. Sci. Rev, XX, 526 And
he observes, "In the writings of all of the most influential theorists of
the time the concept of a superior law of nature, from which are derived the
basic rights of men, holds a very prominent place."
21. Natural rights and natural law, as an ideal form
of the actual law were in the seventeenth and eighteenth centuries "guides
to lead growth into definite channels and insure continuity and permanence in
the development of rules and doctrines." Pound, An Introduction to the
Philosophy of Law (New Haven, 1922), p. 44.
22. "The constitutional doctrine of the
seventeenth and eighteenth centuries, working with the tools of natural law,
erected constitutional limitations into legal obligations founded on
unimpairable contract, gave a vis coactiva to constitutional
limitations, enforceable if necessary by the right of resistance, and posited
for every state an implied constitution founded on the natural law rights of
the individual and having as much force as a written constitution." Edwin
M. Borchard," Government Responsibility in Tort," Yale Law
Jour., XXXVI (April, 1927), 794.
23. See, F. P. Guizot, Works, V, 60, 399, 519,
and Histoire des origines du gouvernement représentatif en Europe
(Brussels, 1851), II, Lecture X.
24. Voltaire referred to natural laws and natural
rights which have a fundamental and immutable character. Oeuvres
Completes, (new ed., Paris, 1883). In speaking of intolerance and natural
law he wrote: "Natural law is that law which nature has indicated to all
men." XXV, 39. At another time he referred to rights as never being
established only by necessity, or force, or custom. XV, 452.
25. Quesnay, Traité du droit naturel,
chap. 5, p 376. A dictum to which the Physiocrats referred was: "Ex natura
jus, ordo et leges, ex hominare bitrium, regimen et coercitio."
26. William A. Dunning, Political Theories from
Luther to Montesquieu, p. 59.
27. Cf. Henry Michel, L'ldée de
l'état (2d ed , Paris, 1896) 17 ff.
28. Ibid., p 62. For the natural law doctrines
of the Physiocrats see Quesnay, Traité du droit naturel (1765),
L'ordre naturel et essential des sociétés politiques
(1767). Physiocrates, Par. I, 41 and Par. II, 445.
29. Henry Michel, op. cit., pp 4 ff.
30. Glasson, Parlement de Paris et son rôle
31. A. Esmein, Cours élémentaire
histoire du droit français (11 ed., Paris, 1912), pp. 582 ff., and
V. Marcaggi, Les origines de la déclaration des droits de l'homme de
1789 (2e ed., Paris, 1912), p. 85. Marcaggi observes that the
history of the états généraux (States-General) is
replete with illustrations of the assertion of the rights of man in opposition
to the rights of the state.
32. Jean Brissaud, A History of French Public
Law, trans. by James W. Gamer in Continental Legal History Series (Boston,
1915), p. 447.
33. V. Marcaggi, op. cit. p., 98. The
remonstrance of March the 4th, 1776 cited the fundamental rule of natural law
which protects the rights of person and property. Ibid., p. 101.
34. Jean Brissaud, op. cit., pp. 448 ff.;
Esmein, op. cit., pp. 595 ff.
35. Marcaggi, op. cit., chap. 8.
36. Article I of the Declaration of the Rights of Man
and of the Citizen, states that "Men are born and remain free and equal in
rights. Social distinctions may be founded only upon the general will."
"The aim of all political association is the preservation of the natural
and indefeasible rights of man. These rights are liberty, ownership, security,
and resistance to oppression." See also article I of the Declaration of
Rights of 1793. See Robert Redslob, Die Staatstheorien der franzosischen
nationalversammlung von 1789 (Leipzig, 1912).
The extent to which the ideas of the Declaration of Rights are based upon
the political philosophy of Grotius, Pufendorf, Burlamaqui, and Vattel,
concerning the natural equality and freedom of the individual, the right to own
and use property, the liberty of conscience, and the consent of the people as
the source of government, is considered by Marcaggi, op. cit., pp. 109
37. Sir Paul Vinogradoff regards the French
declarations as only "the last consequences of a movement which is
preeminently English and American." Yale Law Jour., XXXIV, 65.
George Jellinek defended the thesis that the impetus for the French Declaration
was given by Rousseau and its prototype was the American Declaration of
Independence. The Declaration of the Rights of Man and of the Citizens,
trans. by Max Farrand (New York, 1901). For reply to Jellinek, see Boutmy,
Annales des sciences politiques, July 15, 1902. See claim that the
Declaration of Rights comes from Rousseau, Paul Janet, Histoire des
doctrines politiques (2d ed.), II, 612 and Tchernoff, Revue du droit
public (1903), II, 96. For denial of this claim cf. Léon Duguit,
"The Law and the State," Harv. Law Rev., XXXI (Nov. 1917), 27
ff. See also E. Doumergue," Les origines historiques de la Declaration des
droits de l'homme et du citizen," Revue du droit public, XXI
(1904), 673; and Fritz Klovekorn, Zur Entstehung der Erklärung der
Menschen und Bürgerrechte (Berlin, 1910).
38. Jellinek, op. cit., p. 88. Marcaggi deals
fully with different phases of this controversy. He concludes that the
Declaration of 1789 was essentially a French product — the French
Declaration presenting an interpretation, philosophic in character, of superior
laws, universal and immutable, whereas the English and American bills of rights
were traditional and practical in character. Jellinek declares that
"whatever may be the value or worthlessness of its general phrases it is
under the influence of this document that the conception of the public rights
of the individual has developed in the positive law of the states of the
European continent." Op. cit., p. 2.
39. Carl Becker, The Declaration of
Independence (New York, 1922), pp 256, 257. Edmund Burke styled the French
Constitution of 1793 a "digest of anarchy."
40. At the time of the adoption of the federal
Constitution, Professor McMaster states that "we see that very scanty
recognition seems to have been given to the equality of men, or to their
inalienable rights to life, liberty and the pursuit of happiness." John
Bach McMaster, The Acquisition of Political, Social and Industrial Rights of
Man in America (Cleveland, 1903), p. 40.
41. Becker, op. cit., p. 258. The chief object
at this time was "to make terms with political democracy without opening
the door to social upheaval." Ibid., p. 238.
Eighteenth-century natural law developed anti-social tendencies by making
the individual conscience the ultimate arbiter of political and legal
obligations. Cf. Pound, Law and Morals (2d ed.), 88, and Justice
Wilson's dictum that "The consent of those whose obedience the law
requires ... I conceive to be the true origin of the obligation of human
laws." Works (Andrew's ed.), I, 192. David G. Ritchie set about in
an extensive treatise to demolish the theories of natural rights. "I had a
certain fear," he wrote, "that in criticising that famous theory I
might be occupied in slaying the already slain. Recent experience has, however,
convinced me that the theory is still, in a sense, alive or at least capable of
mischief. ... The real significance of the appeal to nature is, in the first
place, the negative element in the appeal, it is an appeal against authorities
that had lost their sacredness, against institutions that had outlived their
usefulness." Natural Rights: A Criticism of some Political and Ethical
Conceptions (London, 1895), IX, 13.
As is the case with other opponents of the doctrine the gist of Ritchie's
argument centers about the use of the terms "natural" and
"necessary" and some who refuse to accept his version of the use of
these terms regard his criticism as largely futile and overdrawn. For instance,
A. Inglis Clark believes that Ritchie's work contains "the materials for a
perfect defense of the doctrine which it was written to confute."
"Natural Rights," in The Annals of the American Academy of
Political and Social Science, XVI (1900), 221.
42. Becker, op. cit., p. 266.
43. Justice Wilson, an exponent of natural rights
theories, believed that "no exterior human authority can bind a free and
independent man." Works (Andrew's ed.), I, 192; cf. also, Letters
of Jefferson, Writings (Ford's ed.), V, 115-124; X, 37, 42-45.
44. For English reactionary views, see H. J. Laski,
English Political Thought from Locke to Bentham, pp. 243-256 and for the
reaction of the historical school of jurisprudence, consult Savigny, Vom
Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (1814).
45. Michel, op. cit., pp. 164-168.
46.Professor Becker thinks "the political ideas
which in the United States discredited the doctrines of the Declaration of
Independence were similar in essentials to those which in Europe had already
deprived the Declaration of the Rights of Man of its former high
prestige." The Declaration of Independence, p. 256.
47. "American Interpretations of Natural
Law," Amer. Pol. Sci. Rev., XX, 536; see also Wright, "George
Fitzhugh on the Failure of Liberty," Southwestern Pol. and Soc. Sci.
Quar., VI (December, 1025), 219.
48. "American Interpretations of Natural
Law," Amer. Pol. Sci Rev., XX., 537.
49. William A. Dunning, op. cit., p. 217.
50. Works, 1, 136. "The founders use this
phrase [natural law] as if there were a code of natural laws, they appeal to
these laws, they cite them, they literally oppose them to the laws of the
legislators, and they do not perceive that these natural laws are of their own
invention." Bentham, in Principles of Legislation, Part I, XIII,
46. Cf. chapter by Michel on "La reaction en Allemagne et en
Angleterre," pp. 134 ff.
Sir Frederick Pollock charges Bentham with being a follower of a form of
Naturrecht which is "no more congenial to the positive law which
lawyers discuss and administer than that of Ahrens or Kant." Science of
Politics, p. 111.
For Burke's criticism of the French theories of the rights of men consult
his Reflections on the French Revolution (1790).
51. Cf. Friedrich Meinicke, Die Idee der
Staatsräson (2d ed. Berlin, 1925), pp. 468, 480; also Renan,
L'Avenir de la science.
52. Renan believed that the individuals who insisted
on natural or inherent rights were rarely able to appreciate them if guaranteed
protection by the state, and he thought the needs of society should take
precedence over individual rights. Op. cit., p. 357, and Questions
contemporaines, p. 477; cf. also, Philip G. Neserius, "The Political
and Social Philosophy of Renan," Southwestern Pol. and Soc. Sci.
Quar. VIII (June, 1927), 40, 41. Natural rights or rights belonging to the
individual were to be replaced by "the right of reason to govern humanity
and by rights which are the result of history."
53. Grundlegung der Philosophie des Rechts,
secs. 104-114; Reyburn, Hegel's Ethical Theory, pp. 118-121; Michel,
op. cit., pp. 154 ff. Hegel repudiated the ideas of a state of nature
and of natural rights resulting therefrom. He believed that the ultimate
sanction of a state's power is force and that the prince or sovereign cannot be
bound by a higher law.
54. "No man has any rights properly called. No
one possesses any other right than that of always doing his duty." Comte,
Politique positive, II, 361.
55. Vom Beruf unserer Zeit für Gestezgebung
und Rechtswissenschaft (1814), pp. 5 ff., and System des heutigen
Romischenrechts, sec. 7. Consult also followers of Savigny, G. F. Puchta,
Kursus Institutionem and F. J. Stahl, Die Philosophie des Rechts
"Glorification of the positive law that is, to the disparagement of the
natural law that ought to be, is characteristic of the reaction that has
followed the rationalistic liberalism of the Age of Enlightenment. It may be
that this positivism is largely due to the expansion of modern industry and
commerce which has caused lawyers to be more concerned with the protection of
private economic interests than with the larger issues of social well-being. In
any case it is true that since the French Revolution, authoritarian
reactionaries like De Maistre, romantic historicists like Savigny, idealizers
of the actual like Hegel, utilitarians like Bentham, and positivists like
Comte, have all united to heap scorn on the old liberal doctrine that men can
and should change law to conform to their idea of natural law or justice."
From Morris R. Cohen, "Positivism and the Limits of Idealism in the
Law," Columbia Law Review, XXVII (March, 1927), 237.
56. Cf. Pound, Law and Morals, 2d ed., pp.
15-25. Dean Pound observes that "the historical jurist merely gave us a
new natural law on a new basis." Ibid., p. 21.
57. Review of "Interpretations of Legal
History," by Pound, Harv. Law Rev., XXXVII (December, 1923), 280.
58. R. Saleilles, "Ecole historique et droit
naturel d'après quelques ouvrages recents," Revue trimestrielle
de droit civil, I (1902), 80 ff.
59. See John Austin, Lectures on Jurisprudence,
5th ed., edited by Robert Campbell (London, 1885), I, 86, 178; II, 567 ff.
"The whole or a portion of the laws set by God to men is frequently
styled the law of nature, or natural law; being, in truth, the only natural law
of which it is possible to speak without a metaphor, or without a blending of
objects which ought to be distinguished. But, rejecting the appellation Law of
Nature as ambiguous and misleading, I name those laws or rules as considered
collectively or in a mass, the Divine Law, or the Law of
God." Ibid., 1, 86. Austin regarded the laws of God as laws In
the proper sense because they were commands. I, 89, 175, 183, 338; also,
Vinogradoff, Historical Jurisprudence, I, 115 ff.
60. Duguit, "The Law and the State,"
Harv. Law Rev., XXXI (November, 1917), 126 ff.
61. George Lawrence Scherger, The Evolution of
Liberty (New York, 1904), p. 11.
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