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the science of navigation ought to teach what are the essential conditions of a ship; the science of architecture, what are the essential conditions of a house, a bridge, or any other structure; the science of banking, what are the essential conditions of a bank, and so on-before they respectively proceed to consider what it is that constitutes the excellency or defects of a ship, a building, or a bank.
$ 3 11. After we leave the certain and universally true propositions of positive politics, we come to another class of general propositions, lying on the confines of positive politics, but nevertheless essentially distinct in their nature. These are the propositions which may be styled the principles of universal jurisprudence.
These principles were called by the Greeks unwritten laws.(0) That is to say, they were political or moral maxims, which were recognised as having a binding force almost equivalent to a positive law, but which had not been reduced into writing by any lawgiver. They were conceived as rules obligatory upon mankind, of universal application, emanating from a Divine source, and sometimes too strong to be repealed by any human ordinance. Thus Antigone, in the tragedy of Sophocles, describes herself as bound, by the unwritten and immutable laws of the
(6) The expression unwritten laws (ãypadol vóuoi) first occurs in the funeral oration of Pericles, in Thucyd. ii. 37, where it appears to denote those laws of the state which are corroborated by the moral sanction. It next occurs in a conversation between Socrates and Hippias, reported in the Memorabilia of Xenophon, iv. 4, § 19-25. In this passage,
it signifies moral rules of universal application, such as the duty of honouring parents. Compare Xen. (Econ. 7, § 30-1. The expression was doubtless adopted by Socrates from popular usage. Thus, Plato speaks of tà καλούμενα υπό των πολλών άγραφα νόμιμα.-Leg. vii. p. 793. It occurs frequently in this sense in the Greek writers, see Demosth. cont. Aristocrat. p. 639; and the passages cited by Ast ad Plat. Rep. viii. p. 563. In Plato, Politicus, c. 37, ãypapa márpia con are opposed to written laws. Dionysius, Ant. Rom. vii. 41, speaks of ãypadov kal ávouodérntov púoews dikalov. On the opposition of con and vópoi, i. e. of customs and written laws, see Ast ad Plat. Leg. i. 8, p. 636. Aristotle, however (Rhet. i. 13, § 2), makes unwritten law a species of jus civile, or of the law peculiar to each state ; and opposes it to the universal law of nature. See the notes to the passage in Dr. Gaisford's collection. This use of the word agrees exactly with that of the Roman law. See Inst. i. 2, § 3, where reference is made to the Greeks.
gods, to bury the dead body of her brother, notwithstanding the prohibitory decree issued by the king. (*)
As examples of these universal principles of government, we may take the seven axioms laid down by Plato in his Laws, which he declares to be applicable to every state, great or small, and likewise to families; to be of necessary obligation, and to be according to nature. These are
1. That parents should rule over children. (0)
miss it.('') Of these seven principles, Plato declares the sixth to be the most important, in which view of government he is supported by the general voice of the ancient philosophers. His seventh principle affords a remarkable instance of the danger of generalizing institutions with which the writer himself is familiar ;(12) for election by lot, though universal in the Greek democracies,(13) is rarely used in the free governments of modern
(7) Antig. 454.
(8) It is laid down to be a law of nature (κοινός ανθρώπων νόμος, ον η púois čowkev ätaoiv), that progenitors should rule over descendants, in the speech of Fufetius in Dion. Hal. Ant. Rom. iii
. 10. The existence of any such necessary institute of nature is denied by Tullus Hostilius, ib. c. 11. Fufetius afterwards (c. 23), in a speech to the Alban officers, describes the Romans as violating the natural law, common to Greeks and Barbarians, that fathers should rule over their descendants, and mother-states over their colonies. He treats their conduct as an attempt to supplant divine by human laws.
(9) Servius Tullius, in Dionys. iv. 23, denies that the distinction between master and slave is natural. Compare the doctrine of the Roman law, cited above, vol. i. p. 429, n. 115.
(10) The same law of nature is laid down by Dionysius, ib. i. 5. (11) De Leg. iii. 10, p. 690. He calls these principles átlápata.
(12) For Plato's more detailed doctrine respecting appointment by lot, see Leg. vi. 5. He considers it in the light of a necessary evil.
(13) In the Rhetoric, Aristotle defines democracy to be a government in which the offices are distributed by lot (i. 8, § 4). Concerning the natural law of Zeno, see Minucius Felix, c. 19.
times. A similar remark applies, though in a less degree, to the subject of slavery.
The Romans called those legal principles and institutions, which were deemed to be common to all nations, by the appellation of jus gentium, as distinguished from the jus civile, or the law peculiar to each state. As the Romans extended their conquests, and incorporated into their empire a larger number of independent states, each possessing a peculiar system of law, they formed, by this experience, an idea of certain abstract principles and rules of jurisprudence, which were common to all, or most of these states. To this abstract collection of rules they gave the name of jus gentium—the law common to all nations. Afterwards, as their legal relations with their subjects increased, it acquired in some measure a positive character, and was engrafted into the practical jurisprudence of the empire. It became a sort of lingua franca-a medium of communication between persons of different countries—in which the peculiarities of their respective languages were rubbed off, and they were thus enabled to meet on a common ground.
There were certain principles or institutions which all systems of law, in countries with which the Romans came in contact, agreed in recognising, such as dominion or ownership, buying and selling, hiring, partnership, marriage, slavery. These, independently of the peculiar form in which they were clothed by the jurisprudence of each state, were juris gentium ; any peculiar form of them, such as the Roman marriage, belonged to the jus civile.(-4)
The jus gentium of the Roman jurists was equivalent to their jus naturale, to those positive institutions and laws, which
(14) Inst. i. 2; i. 1, § 11. See the subject explained with remarkable clearness and precision by Savigny, System des heut. Römischen Rechts, vol. i. p. 108-116, and aph. i. p. 413-20. As to Ulpian's fanciful doctrine of a law common to men and animals, see above, vol. i. p. 16. Compare also Austin, Prov. of Jurisp. p. 188-91.
The patria potestas is an example of a right peculiar to the jus civile of Rome, and not a right juris gentium. Jus autem potestatis, quod in liberos habemus, propriumi est civium Romanorum. Nulli enim alii sunt homines, qui talem in liberos habeant potestatem, qualem nos habemus.' -Inst. i. 9, § 2. Compare Dig. i. 6, § 3.
were substantially common to all nations enjoying a certain degree of civilization.(15) Taking man, with the conditions of his nature, physical and mental, and of society, as they exist, he naturally establishes certain laws and institutions; and, hence, the law common to all nations and natural law become equivalent.(16) Thus, as soon as regular judicatories are in operation, the principle of hearing the defence of an accused man before he is condemned,(7) and the principle of hearing both parties in a suit before the decision is given in favour of either, can scarcely fail to be recognised. Other elementary principles of this sort, having a very wide application, (such as that ‘no man ought to be a judge in his own cause,') might be adduced.
Such practical principles, however recommended by an obvious and strong utility, are not acknowledged by all nations; and Savigny properly remarks, that when the Romans speak of the jus gentium as being recognised by all men,' and 'all nations,'(18) they were doubtless aware that their induction was
(15) · Neque vero hoc solum naturâ, id est jure gentium, sed etiam legibus populorum, quibus in singulis civitatibus respublica continetur, eodem modo constitutum est, ut non liceat sui commodi caussâ nocere alteri.'—Cic. de Off. ii. 5. Societas est enim latissime quidem quæ pateat, hominum inter homines ; interior eorum, qui ejusdem gentis sunt; propior eorum, qui ejusdem civitatis. Itaque majores aliud jus gentium, aliud jus civile esse voluerunt. Quod civile, non idem continuo gentium ; quod autem gentium, idem civile esse debet.-Ib. c. 17. Æquissima vox est, et jus gentium præ se ferens, Redde quod debes.'--Seneca de Ben. iii. 14.
Gentium jus est quod acceperis reddere,' in a passage attributed to Seneca, vol. v. p. 427 ; ed. Rukkopf.
(16) Cicero, referring to the belief in the existence of the gods, says: • Omni autem in re consensio omnium gentium lex naturæ putanda est.' Tusc. Disp. i. 13. Also in the speech, De Harusp. Resp. c. 14: 'Quanquam hoc si minus civili jure perscriptum est, lege tamen naturæ, communi jure gentium, sancitum est,' &c. Commune jus gentium.'-Nepos, Themist. 7. (17) μηδε δίκην δικάσης πριν αμφοίν μύθον ακούσης,
Ap. Pseudo.-Plat. Demodoc. $ 4. Aristoph. Vesp. 725. Compare Param. Gr. vol. ii. p. 759; ed. Leutsch. In Latin, Audi alteram partem. The putting of persons to death without a trial (Kreivelv åkpitous) is always spoken of with severe reprobation by the Greek writers ; and as if, in condemning such a practice, they appealed to a recognised principle.-See, e.g., Dion. Hal. A. R. . 22.
(18) • Omnes homines,' omnes gentes,' 'gentes humanæ.'- Gaius, Savigny, ib. p. 110. Thus Ovid said of himself
• Mihi fama perennis
Quæritur, in toto semper ut orbe canar- -(Amor. i. 15) yet he knew that there were parts of the world, inhabited by savage
incomplete. In the first place, they were not acquainted with all nations; and, in the next, they did not inquire very narrowly if a certain law was really common to all the nations with which they were acquainted.
As soon as we travel beyond the limits of the nations partaking of the Greek and Roman civilization in antiquity, and those partaking of the civilization of Western Europe in modern times, we arrive at nations which adopt different practical principles in the fundamental departments of civil law, and reject those principles of jurisprudence which theoretical writers denominate universal. All nations above the savage state recognise a right of possession; but tribes in the nomad state do not recognise a right of property or ownership in land ;(19) and there
tribes, where his name would be unheard. The whole world is a hy. perbole, as in the account of the temptation in St. Matthew, iv. 8—the high mountain from which all the kingdoms of the world' could be seen. • All Asia and the world' is said to worship Diana, in the speech of Demetrius the silversmith, Acts xix. 27. Gibbon (c. 15) cites a passage of Justin Martyr, which describes Christianity as having spread over the whole world in the first century. Speaking of the 'gentium consensus tacitus,' Pliny says, that its first object was the use of the Ionic letters, the second was the practice of shaving the beard, the third was the division of hours. -N. H. vii. 58-60. From the instances given, it is clear that he means to limit himself to the states enjoying the Hellenic civilization. By a natural hyperbole, the orbis Romanus has often been identified with the entire inhabited world. Thus Florus : Ita late per orbem terrarum arma cir. cumtulit, ut, qui res ejus legunt, non unius populi, sed generis humani facta discant (i. 1, § 2). Compare Gibbon: • Dazzled with the extensive sway, the irresistible strength, and the real or affected moderation of the emperors, they permitted themselves to despise, and sometimes to forget, the outlying countries which had been left in the enjoyment of a barbarous independence; and they gradually usurped the licence of founding the Roman monarchy with the globe of the earth.'— Decl. and Fall, c. i. ad fin., who refers to Bergier, Hist. des Grands Chemins de l'Empire Romain, liv. ii. c. 1. (19) See Horace, Carm. iii. 24:
Campestres melius Scythæ
Quorum plaustra vagas rite trahunt domos,
Immetata quibus jugera liberas
Nec cultura placet longior annuâ. Speaking of the Suevi, Cæsar says: 'Privati ac separati agri apud eos nihil est ; neque longius anno remanere uno in loco, incolendi causâ, licet.'
-B. G. iv. i. Arva per annos mutant, of the Germans.' Tacit. Germ. 26. On the nomad state of society, see Comte, Traité de Législation, 1. iv. c. 14; Gibbon, c. 26; Volney, Egypte et Syrie, tom. i. p. 351.