Natural Law: Partie 1 - Chapitre 1 (Greeks & Latins)

Introduction to Natural Law

• Natural law leads to the idea of fundamental human rights and does not involve the state.
• The concept of natural law has evolved over time and has been defined in various ways by different thinkers.
• The course is divided into three parts: Greeks and Romans, Medieval period, and Modern times.

Why Study Natural Law

• Studying natural law helps to form a well-rounded understanding of legal philosophy.
• It is essential to be aware of one's legal philosophy, as everyone, including students and lawyers, has a legal philosophy that influences their decisions.

Key Notions and Main Issues

Nature vs. Convention

• In Greek, "nature" (phusis) refers to either an immutable order or a spontaneous development.
• Aristotle believed that nature refers to the final cause of a thing, and from this, a norm of behavior can be deduced.

The Origin of Society

• Aristotle's empirical method involves observing the origin of things and following their development.
• According to Aristotle, the origin of society lies in the coming together of two people, which gives rise to a family, then a village, and finally a city-state.
• Aristotle believed that the state is a natural fact, not just a social construct.

The Notion of Justice

• Aristotle distinguished between two types of justice: complete virtue (respecting the law) and particular virtue (respecting equality).
• Corrective justice aims to restore the original balance, while distributive justice involves giving each person what they deserve according to their merits.

Distributive Justice

• Distributive justice involves a proportionality of ratios, requiring at least four terms.
• Aristotle believed that money was invented to establish proportionality between different things.

Political Justice

• Political justice applies only to citizens, and Aristotle's justification of slavery and the treatment of women and foreigners is no longer acceptable today.

Natural Justice and Conventional Justice

• Aristotle believed that there is a natural justice that applies universally, but also admitted that natural law is subject to change.
• Natural justice is not just a matter of convention, but rather a universal principle that is fulfilled in different ways.

Equity (Epikea)

• Equity is necessary because the law always lays down a general rule, but particular cases may arise that were not foreseen.

• Equity corrects the law when it does not provide a suitable solution, much like the legislator would do if they were present.### Fairness and Justice

• Aristotle's notion of fairness is not related to his conception of natural justice, but rather to the principle of applying laws to the intended situations.

• The solution is to identify the intention of the legislator and determine what it would have decided had it been aware of the case.

The Romans

• In Rome, the law was initially strongly religious, but it gradually became secularized around the 6th and 5th centuries BC.
• The Roman ius was a technical knowledge that remained the prerogative of a restricted group of scholars (aristocrats) for a long time.
• The system of responsa of the pontiff, or oral answers to questions aimed at determining what the ius was in a concrete situation, emerged in Rome.
• The adoption of the legislation of the Twelve Tables in 451-450 BC revealed a plebeian will to defeat the aristocratic hegemony of an esoteric ius.

Cicero and Stoicism

• Cicero, influenced by Aristotle, wrote that virtue consists entirely in the uses that one makes of it and that the noblest use of virtue is the government of the Commonwealth.
• Cicero's stoicism emphasized the materialist and pantheistic view that the order of nature, an organic unity in which determinism reigns, is identified with God.
• The Stoics conceived of the natural law inherent in humanity as the expression of the divine will that governs the entire cosmos.
• The law (nomos) reigns over everything, divine and human, and determines what is good and bad, and sets the criteria for what is just and unjust.

Society and the Rule of Law

• Cicero, like Aristotle, considered that a people is not just a group of human beings but a group gathered around a community of interests.
• A second condition is necessary for a people, namely a consensus on the law ("iuris consensu"), which is rendered as a "pact of justice" or "adherence to the same law".
• The 'consensus on law' can give the impression that the foundation of society is more conventional than natural.

Natural Law

• Cicero expressed the idea that there is one and the same law, eternal, unchangeable, which is in force at all times and among all peoples.
• This natural law imposes what must be done and forbids bad behavior, and is known to all beings through the right reason.
• The natural law cannot be amended or abrogated by the legislator.

The Breach between Natural Law and Positive Law

• Cicero considered that it would be foolish to believe that everything regulated by the institutions or laws of peoples would be just.
• Only he who ignores the natural law dictated by right reason is unjust, and if we were to believe those who think that utility is the measure of all things, we risk allowing everyone to break this law.

Roman Law and its Jurists

• Gaius, a famous Roman jurist, wrote the Institutes, which had a lasting influence on continental law.

• Gaius referred to the law that natural reason establishes among all men as "ius gentium".

• The jurisconsult Paulus distinguished between civil law and natural law, with the latter being applied to what is in all circumstances just and good.

• Ulpian, another prominent Roman jurist, established the summa division between public law and private law.

• Ulpian defined natural law as what nature would have taught to all animals, including humans.### Ulpian and Roman Law

• Ulpian summarized the great precepts of law: to live honestly, to do no wrong to anyone, and to give to everyone what is due to them.

• He derived the word "ius" from the word "iustitia", which is incorrect from an etymological and chronological point of view.

• Roman law developed technically before considering justice, unlike in Greece.

• Ulpian's definition of natural law contrasts with his desire to integrate an ethical and moral dimension into Roman law.

• The phrase "Princeps legibus solutus est" (the prince is above the law) is attributed to Ulpian, justifying absolutism.

• Ulpian did not intend to defend the existence of a natural law capable of defeating positive law.

Natural Law and Slavery

• Ulpian wrote that, according to civil law, slaves were not persons, but that this was not the case with natural law, since all men were born equal.
• The Romans, influenced by Stoicism, accepted slavery, contradicting Aristotle's view.
• The reference to natural equality of men had no practical impact on Roman law.

Medieval Natural Law

• After the fall of the Western Roman Empire, Europe witnessed great population movements and invasions by various groups.
• The Christian Church dominated the intellectual world for a thousand years, ensuring the survival of natural law.
• The Bible became the main legal text during this period.
• Christian thinkers, such as Augustine, Thomas Aquinas, William of Occam, and the Spanish scholastics, played a significant role in shaping natural law.

The Passage of the Year 1000

• The year 1000 marks a decisive break in Western history, according to Marcel Gauchet.
• This period saw the division of reality between the visible and invisible worlds, allowing men to inscribe their action in a different way.
• This development implies political-religious and philosophical-legal changes.

Politico-Religious and Philosophical-Legal Changes

• The Investiture Controversy pitted the temporal and spiritual powers against each other.
• Manegold of Lautenbach argued that the Emperor's power was based on a pact with his subjects, and that the Pope didn't need such a pact.
• Marsilio of Padua defended the idea of separate spheres of temporal government and spiritual authority, and the subordination of the Church to the State in temporal matters.