Encyclopedic Liberty. Jean Le Rond d'Alembert
way; they introduced into it errors and vices. Pythagoras was the first to undertake a discussion of virtue. After him Socrates gave the best and broadest treatment, but he wrote nothing, being content to teach his disciples by means of simple conversations. Nevertheless he is considered the father of moral philosophy. The entire ethics of Plato, the disciple of Socrates, is contained within ten dialogues, several
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of which deal specifically with natural law and politics. This is the case with Plato’s treatises on the republic, on laws, on politics. Aristotle, Plato’s most celebrated disciple, was the first among ancient philosophers to have given a somewhat methodical system of ethics; but he deals more with the duties of the citizen than with those of man in general and with the reciprocal duties of those who are citizens in a well-run state.
The best treatise on morality that we have from the ancients is the De Officiis by Cicero which contains a summary of the principles of natural law. Still, a great many subjects are missing. They may have been contained in his treatise on the republic of which only fragments remain. There are also some good things in his treatise on laws, where he attempts to prove that there is a natural law independent of the institutions of men, which has its origins in the will of God. He demonstrates that this is the basis of all just and reasonable laws; he shows the importance of religion in civil society and concludes at length on the reciprocal duties of citizens.
The principles of natural equity were not unknown to Roman jurisconsults: some even claimed to follow them rather than the severe laws; this was the case for the sect of the Proculeans, whereas the Sabinians followed the letter of the law rather than the principles of equity.1 But in what has remained of the works of this great number of jurisconsults, one does not see that they treated ex professo either of natural law or of the law of nations.
Even the books of Justinian contain at most a few definitions and some very rudimentary notions about these two laws. We find these in the digest De justitia et jure and in the institutes De juri naturali: gentium et civili.
Among modern authors, Melanchthon gives a sketch of natural law in his Ethics. Benedict Winkler also sometimes mentions it in his Principes de droit, but he often mistakes man-made law for natural law.2
The famous Grotius is the first to have drafted a system of natural law in a treatise in three books entitled De jure belli et pacis. The title suggests merely the subdivisions of the law of nations, and it is true that the greatest
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part of the work deals with the law of war. In spite of this, the principles of natural law are laid down in the Preliminary Discourse, on the certitude of law in general, as well as in the first chapter. In this chapter, after having given the outline of the whole work and having defined the meaning of war and the ways in which one can understand the term law, Grotius explains that law taken as meaning a certain rule can be divided into natural law and arbitrary law. Natural law, according to him, consists in certain principles of true reason, which make us realize that a certain action is honest or dishonest, depending on whether it is or is not in accord with a reasonable and sociable nature. God, who is the creator of nature, therefore approves or condemns such action. Grotius examines how many different kinds of natural law exist, and how they can be distinguished from rules to which the name is applied erroneously. He maintains that neither the instinct men have in common with animals nor the instinct characteristic of all men, properly speaking, constitutes natural law. Finally he examines how the maxims of natural law can be proven.
The remainder of his work is mainly concerned with the laws of war and therefore with political law and the law of nations. Nevertheless a few topics can also be related to natural law, such as justifiable self-defense, rights common to all peoples, the original acquisition of property, other ways of acquiring property; the law concerning paternal power, marriage, legal and religious bodies, the power of sovereigns over their subjects, and masters over their slaves; territorial possessions, alienation of property; inheritance ab intestat, promises and contracts, oaths, royal promises and oaths, public treaties promulgated by the sovereign without his order, damages caused unjustly and the obligations which result; the rights of embassies, the right of burial, penalties, and how they are transmitted.
Shortly after the appearance of Grotius’s treatise, John Selden, the famous English jurisconsult, published a treatise on all the Hebrew laws concerning natural law. He entitled it De jure naturae et gentium apud Hebraeos.3 This is an erudite but unsystematic work, written in obscure language. In addition, this author does not derive the natural principles from the light of reason only. He simply deduces them from the seven supposed precepts
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given to Noah, the number of which is uncertain and which are based on a very dubious tradition. Often he even contents himself with relating the decisions of the rabbis, without examining whether they are well founded.
Thomas Hobbes was one of the greatest geniuses of his century, though unfortunately prejudiced by the indignation aroused in him by the seditious persons then fomenting troubles in England. In 1642 he published, in Paris, a treatise about the citizen4 where, among other dangerous opinions, he tries to establish, in accordance with Epicurus’s ethics, that the basis of society is self-preservation and private interest. This leads him to conclude that men have the desire, the strength, and the power to inflict evil upon each other, and that the state of nature is a state of war of all against all. He assigns to kings a limitless authority not only in matters of state, but also in matters of religion. Lambert Velthuisen, the Dutch philosopher, published a dissertation attempting to justify the way in which natural laws are presented in the treatise about the citizen. But he could only do it by either abandoning Hobbes’s principles or attempting to give them a favorable interpretation.5 Hobbes published still another work, called Leviathan,6 which states, in summary, that without peace there can be no security in a state; that peace cannot exist without control, and control cannot exist without weapons, and that weapons are useless unless they are in the hands of one person, etc. He openly maintains that the will of the sovereign not only creates the just and the unjust but also religion; that any divine revelation can become obligatory only after the sovereign, to whom he attributes arbitrary powers, has proclaimed it as law.
Since then Spinoza had the same ideas about the state of nature and has based them on the same principles.
We shall not attempt here to refute the pernicious systems of these two philosophers. It is easy to perceive their errors.
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Baron Puffendorf, having conceived the plan of a system of the law of nature and of nations, followed the spirit of Grotius; he examined things at their origin and took advantage of the knowledge of those who preceded him. To this he added his own discoveries and published a first treatise under the title of Elements of Universal Jurisprudence. This work, even though not perfect, gave such evidence of the great quality of the author that the following year7 the Elector Palatine Charles-Louis called him to his University of Heidelberg and founded for him the chair of Professor of Natural Law and the Law of Nations.
Barbeyrac in his Preface to the translation of Puffendorf’s treatise mentions another German professor called Buddaeus, who had been Professor of Natural Law and Ethics at Hall [sic, Halle] in Saxony and who was the author of a history of natural law.8
M. Burlamaqui, author of the principles of natural law of which we shall speak in a minute, used to be Professor of Natural and Civil Law in Geneva. This gives us a chance, in passing, to note that in several states of Germany and Italy the usefulness of establishing public schools dealing with natural law and the law of nations has been recognized. This law is the basis of civil, public, and private law. It would be well if the study of natural law and the law of nations and that of public law were held in equally high esteem everywhere. Let us return to Puffendorf whom we left for a moment.
The Elements of Universal Jurisprudence is not his only work on natural law. Two years later he produced his legal treatise De jure naturae et gentium which was translated and annotated by Barbeyrac; Puffendorf has also published an abridgment of this treatise, entitled