THE LAW OF NATURE Theories of the law of nature have varied, but they conform in the main to one or other of two types. On the one hand there is the idea which embodies the reaction against the conventions and artificiality of social life. On the other, the scientific ideal in accordance with which the development of the law may be regu lated. Of the former type was the law Pindar extolled, the law of the strong right arm with Hercules for hero. This was in essence the conception of Hobbes. Rousseau's name on the other hand has always been linked with the Romantics who, equally resenting the "restraints imposed by the weak and the rabble," sigh for the Golden Age. The two types are subtly interlinked, for this con ception also flourished at the time when the Roman jurists were perfecting the scientific conception, their most original contribu tion to the world's stock of moral ideas. These jurists generalized their own jus gentium and sought in the fundamental features of similar or universal legal institutions suggestions for the simplifi cation of their own rules and an ideal towards which they might converge. Under the influence of this movement distinctions based on privilege fell away one by one, Quirites and plebeians, Romans and Latins, citizens and colonials and many another, till by the light of the law of nature a man was "a man for a' that" and civis Romanus was his boast. This scientific conception has played at all times, the mediaeval period included, a very great role in the development of law; and at no time, perhaps, more significdntly than in the 17th and i8th centuries when it gave rise to the modern law of nations. This is not the place to esti mate the debt the world owes to Grotius, but the beginnings of international law must always be associated with his name. The idea of the law of nature itself is too vast for adequate treatment here. The reader will find an excellent approach to the subject in Pollock's Essays in the Law. Two current phases however are of more than passing interest.
In England, the classic home of justice through juries and leg islation by laymen, it is befitting to turn first to a popular move ment, which finds expression simply as an impatience with the law. Law is no longer the background of life. Life is something bigger than the law. To suggest that well-being or happiness whether of the individual or society is to be sought in such a di rection is to invite polite ridicule. This derisory note, by no means always so light hearted, is well caught in a widely fashion able anthology, "The law may be likened to a whimsical lady. It is an advantage to have a knowledge of her character but her embraces are to be avoided" (The Week End Book 16th Imp. 1926, p. 318). Allowing for the graver atmosphere of the House of Commons, we have Sir J. Simon saying : "I am not spending my time in discussing some miserable legal technicality . . . I know . . . that I have been talking law but I am the last per son in this House to suppose that law is the whole of life. I have never thought so. . . . There are considerations involved in this whole story which are vastly more important than any merely legal proposition . . . apart from the legal question there is a social question, an industrial question and a human question" (Sir J. Simon on The General Strike, 1926, p. 15, 26). No less significant is the feeling that finds expression on the stage. St. Joan is surely indicative of its age. It is hard to say whether the play or its popularity is the more remarkable phenomenon. There is no more faithful representation of a trial in the whole of liter ature, and the audience may be forgiven for believing that they have had revealed to them the last secrets of justice. It may be remembered that in the epilogue the president of the court is brought on to make his avowal as well. This is what he says : "The
judges in the blindness and bondage of the law praise thee, for thou hast vindicated the freedom and the vision of the living soul." If this is not of the quintessence of the law of nature English political thought since Wyclif is wholly without meaning. The other conception of the law of nature also has its modern counterpart. In the words of a notable American judge, one of the great needs of the law to-day is "a philosophy that will mediate between the conflicting claims of stability and progress and supply a principle of growth" (Cardozo J., 37 H.L.R., p. 279). To meet this need a great body of European speculation and con troversy has come into being. There is the work of Saleilles, with which for its lucidity and good sense the revival in France is worthily associated. For Saleilles natural law finally spells the comparative method (cf. "Ecole Historique et Droit Naturel," 20 Rev. Trim. de Droit Civil, i. [1902] p. 8o). Then there is Stammler, a name to conjure with abroad. He dissociates himself from traditional Naturrecht, though his peculiar cast of mind sets him in the right line of that tradition. When is what purports to be law really law? When can we be certain that what is law is also just? Every jurist must face problems such as these. For Stammler they presented themselves as essentially theoretical questions. A formal criterion of legal validity, characterized by unity and universality was at once his need and his aim. "Our purpose is to find a universally valid formal method by means of which the necessarily changing material of empirically con ditioned legal rules may be so worked out, judged and determined that it shall have the quality of objective justice" (Theory of Justice, p. 89). Hence the slogan of his school, "natural law with a variable content." Impressive though this may be, one is apt to turn in the end to Oliver Wendell Holmes : "Natural Law" (Collected Legal Papers, p. 310).
As law involves a reference to uniformities of human conduct it is tempting to see some connection between this law (and a fortiori the law of nature) and law in the scientist's sense (espe cially in its more abstract forms). And at no time more so than in the 19th century when ideas borrowed from scientific thinking played so large a part in popular morality. Natural law came to reinforce the authority of social law, behind the social order lay the world order. It was only a step to identifying the two (as in H. H. Bancroft's Popular Tribunals [San Francisco 1887] I p. 3o-34, a fine "period piece") ; B. J. Gilman's Logical Study of Law (scientists' use) 34 Mind No. 135 will serve as a sufficient corrective, or even Croce's pithballs (Philosophy of the Practical [Ainslie] p. 481 ff.) for a class-room test. Maclver's Community is the usual reference for the systematic identification. J. E. G. de Montmorency's Natural History of Law presents a more sug gestive thesis, but it is best read along with Morris R. Cohen's The Social Sciences and the Natural Sciences (in Ogburn and Goldenweisser's The Social Sciences, 1927) even though the logic there is perhaps a shade too rigorous and less negative compari sons might be warranted. There are notable contributions to method by recent German writers. Cf. e.g. Emil Lask, Rechts philosophie in the Festschrift fur Kuno Fischer; English (Briinn) Grundlagen des wirtschaftlichen Denkens; L. Nelson, System der philosophischen Rechtslehre; S. Marck, Substanz and Funktions begriff in der Rechtsphilosophie; M. Solomon, Grundlegung zur Rechtsphilosophie. For the views of F. Kaufmann, C. A. Emge, J. Kraft and others see the Archiv fur Rechtsphilosophie.