Natural Law Syllabus PDF

Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni INTRODUCTION 1. Why Natural law ? Leads us to the idea of fundamental human rights + it does not involve the state (≠Pos...

Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni INTRODUCTION 1. Why Natural law ? Leads us to the idea of fundamental human rights + it does not involve the state (≠Positive law) o natural law means has evolved through the years : there are many definition of natural law (in regards of each thinkers) o the notion has the capacity to change, the understanding but also the content. Some thinkers think the law is immutable and eternal but some don’t like Aristotle The course is divided in three parts : 1. Greeks and Romans : natural law = natural justice, conform to the natural order 2. Medieval period where natural law is associated with the will of God 3. Modern times period where natural law is identified with natural rights, fundamental rights 2. Why study it ? « Tels croient pouvoir, grâce à une attitude pragmatique, se passer entièrement de philosophie ou de théorie générale, qui ne parviennent en réalité qu’à faire de la philosophie ou de la théorie sans le savoir, par conséquent d’une manière peu soigneuse. Un effet particulier de cette inertie philosophique (…) est le préjugé selon lequel la philosophie ou théorie du droit serait inutile pour le métier de juriste et n’offrirait d’intérêt que pour les esprits spéculatifs. Préjugé très répandu chez les praticiens et même chez ceux qui enseignent le droit. (…) Il est d’ailleurs vrai que l’utilité de la théorie du droit pour le praticien est indirecte, ce qui la rend peu visible : elle tient surtout à la formation de l’esprit que cette théorie procure. (…) Pour remédier à une incuriosité dommageable, il faut d’abord prendre conscience d’un phénomène assez général : quand nous avons à traiter une affaire ou à trancher une question particulière, nous faisons facilement de la théorie à notre insu. La théorie du droit en général ne se cantonne pas dans la littérature spécialisée, que la plupart des praticiens ne lisent guère. Ceux-ci se trouvent plus qu’on ne pense en contact avec elle. Elle affleure en effet dans de nombreux traités de droit positif et même, plus souvent qu’il ne semble à première vue, dans la motivation de décisions judiciaires, de manière implicite plus souvent qu’explicite ». (written by Lucien François) Two ideas : 1. everyone has an idea of what is natural law, each of us adhere to some kind of legal philosophy: if you believe that there is such thing as HR that exist independently of the will of the legislator it makes you a natural defender or if you think you need the parliament to make law you’re a positivist or if you think that law is only politics you belong to the movement of critical legal studies. 2. Not only students but also lawyers share some kinds of legal philosophy, there is a legal theory that can be defined when you read a judgement such for instance in the case of arrêt Leski. Here it establish the principle of primacy of international law with direct effect over national law bc “By nature, international law prevails over national law. ”But is not obvious for example the GE CC the principle will apply only if there is no >< to the main values of their C° 3. Key Notions and Main Issues 1. Nature v. Convention a) Nature In Greek, nature is phusis but is also a polysemic notion, it can refer to either an immutable order, as something never changed, either more like a spontaneous development. Aristotle for instance consider that nature refer to the final cause of a thing (e.g as a citizen if you don’t complete your duties, you’ll not achieve your final cause). if man's final cause, his nature, is to become a virtuous citizen, we can more easily deduce a norm of behavior, namely the obligation to act virtuously. Page 1 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni b) Convention/law (Nomos): the social contract The sophist established the distinction between nature and law/norm back in the 5th c. BCN. The notion of law or convention refers to the notion of will of the legislator or the parties of the contract For the sophist the origin of law is purely conventional. - They needed to distinguish between nature and convention and concluded either that justice was identified with the natural law of the strongest or that law was reduced to pure conventions. In >< Plato believed that judges should literally follow written laws, Aristotle asserted that the rule cannot foresee everything, nor account for its application, and considered that the function of judging required phronesis, which is that quality of the man of action that enables him to adapt his decisions to the circumstances, without losing sight of the ends pursued by the rule. Aristotle philosophy is the archetype of teleological thinking : each being has a goal (telos), the pursuit of which allows the fulfilment of its nature and contributes to the preordained harmony of things, only human beings being capable of grasping this natural order once they are endowed with logos. Two concepts can be further clarified to fully grasp this teleological conception: the potency/act distinction and the theory of causes, already mentioned in the introduction The potency refers to a modality of being in a potential state, whereas the act aims at the realization of this state He also distinguish the final cause and the efficient cause : - Efficient cause : since it refers to the mechanical notions of cause and effect: it is the cause of change, which produces, destroys or modifies the thing. - Final cause : what every being tends towards, what it is in potency and is called to become in act, in other words its nature. The final cause of every human being is to become a virtuous, justice-loving citizen 2. The origin of society (Voy Text pg 20 sylla) Aristotle empirical method : in order to observe properly, we must go back to the origin of things and carefully follow their development. As far as the origin of society is concerned, it lies in the coming together of two people, which gives rise to a family. When families live together, a village is created, and finally a city- state emerges. The obvious conclusion for Aristotle is that the state is a fact of nature and not, as the sophists (or, much later, the social contract theories) might argue, the pure result of a convention. In other words: man is a political animal. Men’s final cause is to live in a society, to create and live in a City and becoming potential citizens and by choice, refuses to live in society can only be considered inferior... or superior to the human species Aristotle insists that man is not just a social being, like bees, but a political being, which can be explained by the fact that nature, which does nothing in vain (which reminds us in passing of the teleological conception), has endowed man with the logos that enables him to conceive of right and wrong, justice and injustice, concepts that are at the heart of political organization: "the virtue of justice is of the essence of civil society" and "the administration of justice is the very order of the political community". In Book V of the Nicomachean Ethics, Aristotle’s moral theory is based on the idea that things tend towards the good and that the ultimate good is happiness (eudaimonia, i.e. a definitive state that can only really be achieved at the end of one's life). The virtues that are indispensable for the realization of happiness are courage, temperance, kindness, friendliness, but also justice. For Aristotle, virtue is neither a passion (emotional state) nor a capacity (innate) but a habit, a way of reacting to the passions: it is worked on, made concrete. 3. The notion of justice (Voy Pg 22 text sylla) Starting from the notion of the unjust man, Aristotle distinguishes between those who do not respect the law, on the one hand, and those who take more than their share, on the other hand. Page 7 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni  Therefore, the just man is law-abiding and does not take more than his share. Let us note at the outset that the French translation refers to the notion of “equality” to define what a just man is (« Le juste donc, est ce qui est conforme à la loi et ce qui respecte l’égalité, et l’injuste ce qui est contraire à la loi et ce qui manque à l’égalité »).  But in Athens the Greeks were fundamentally unequal in regards of women, slaves, foreigners who we’re not put on the same level of equality 2 types of justice - A complete virtue : respecting the law. It is "a complete virtue” in the highest degree because it is directed at others, it accomplishes what is advantageous to another, either to a leader or to a member of the community. Let us note already that the first form of justice according to Aristotle is that which consists in respecting the law: we find the Greek attachment to respect for the law and the idea that, with the possible exception of Antigone , natural law according to the Greek philosophers was not thought of in opposition to positive law. Laws, which are adopted by the people of the city, by men whose very nature leads them to become virtuous citizens, are presumed to be just and in harmony with natural justice. - A particular virtue : respecting equality. it includes distributive justice, which consists of giving each person what he or she is entitled to according to his or her merits, and corrective justice, which aims to restore the original balance, by redressing the imbalance resulting, for example, from the poor performance of a contract or the harm caused to someone in an extra-contractual matter. While the latter follows an arithmetical formula (we put back in the pristine state), distributive justice is conceived according to a geometrical proportion. >< Corrective justice : tends to re-establish the pre-existing balance, even if this balance was not fair. It does not matter, Aristotle continues, whether it is a good man who did wrong to a bad person, or the other way around because the law is concerned only with the “difference in wrongs" and restores equality in such a way that what the parties possess neither increase nor decrease. It is subdivided into a justice which concerns relationships contracted voluntarily (sale, deposit, rental), and a justice which concerns non-consensual matters (theft, adultery, murder, assault). In our modern legal language, the exercise of corrective justice could be translated as the response that a judge could give when seized of an action for extra-contractual liability (involuntary transaction in Aristotle's terms) or contractual liability (voluntary transaction). 4. Distributive justice Distributive justice involves, writes Aristotle, a “proportion meaning equality of ratios, and requiring four terms at least”. Thus, someone who is twice as deserving could only be granted twice as much, otherwise the rule of proportionality would be violated. Similarly, the work of an architect in comparison with the work of a shoemaker should be paid for in the same proportion as the difference between the price of a house and the price of a pair of shoes. In mathematical form, this gives : Price of a house = architectural work Price of a pair of shoes = work of a shoemaker The idea of proportion is to make different things commensurable. Aristotle goes on to say that money was invented precisely for this purpose.. Since it constitutes the measure of everything, he writes, it makes it possible to establish how many shoes are equivalent to a house. It is indeed a substitute for need set up by convention, which explains why its name, "nomisma", derives not from nature but from the law (nomos). For Aristotle, , justice requires taking into account social relationships. One cannot determine what is due to each person if one does not take into account the situation of the other persons concerned. Page 8 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni Since law is first and foremost a way of organising social interaction, it cannot ignore the relationships between people 5. Political justice (Voy Text pg 24-25 sylla) As mentioned, Greek society was not, even in Athens, an egalitarian society: the Stagirite makes it very clear that the principles of justice mentioned above apply only to citizens, i.e. “men who associate together in order to supply their deficiencies, being free men, and upon a footing of equality, either absolute or proportionate”. With regard to those who do not have this status, there could be no question of political justice properly so called, but only of a kind of justice in a metaphorical sense, read: an ersatz of justice, an attenuated, less binding version of the political justice. This is the case of the relationship between father and child, or between master and slave. The child and the slave belong to the father/master citizen, so they are part of him. However, no one deliberately chooses to be unjust to himself or herself, so this type of relationship cannot be called 'political justice'. Aristotle's justification on this point is obviously no longer convincing today. Aristotle admits that the relationship between husband and wife is of a different nature, so that the justice governing it is close to political justice, but it cannot be equated with it: it is domestic justice or, according to another translation, what “is just in a family”. Here too, the Aristotelian distinction is no longer acceptable. This promotes inequality but we should note that it respects the logic of the modern legal principle of equality (in the formal sense): the latter requires that persons belonging to the same category be treated in a comparable manner, but also, as is too often forgotten, that different persons be treated differently. For the Greeks of the time, however, citizens constituted a category quite distinct from that of other human beings, so that it was justified to treat them differently. Children, for Aristotle, have the logos only in potency, its actualisation only operating perfectly when they come of age. Women are endowed with the logos but do not have sufficient authority to govern. As for the foreigners, the barbaros: the men of the North are brave but hardly intelligent, the Asians intelligent but cowardly, so that only the Greeks have the excellence that justifies their quality of citizens. Finally, in order to justify slavery as a natural institution (and not a conventional one, since all men are born free, as the Roman legal scholars would argue), Aristotle proposes an analogy with the soul and the body: just as the body needs to be commanded by man, so the slave, who has neither the faculty of commanding nor of foreseeing, needs to be commanded by the master, who knows better than the slave what is good for him. This justification of slavery was taken up again, as we shall see, by Thomas Aquinas and then by Sepulveda in the controversy between him and Las Casas in the 16th century concerning the status of the American Indians 6. Natural justice and conventional justice Text pg 26 sylla Political justice, i.e. the justice that applies to citizens, comprises a subdivision, namely legal justice on the one hand and natural justice on the other. The notion of legal justice does not pose a problem: it is purely conventional positive law, the rule that could have been different but which, once adopted, becomes binding. Thus, it is easy to understand that a political authority can decide that one should drive on the left or on the right, but that, once this choice has been made, it must be respected. But here Aristotle attacks head-on the positions of the sophists For them, he writes, all legal rules are a matter of legal justice: if fire burns in the same way in Athens and Persia, it is not the same for legal prescriptions. Now, to say that law is variable “is not altogether true, though it is true in a way”. This excerpt is one of the most complicated texts of Aristotle on the subject and has been the subject of many interpretations, not always compatible with each other. Page 9 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni The main difficulty lies in the fact that Aristotle seems to admit a certain variability of natural law. He writes that natural things, like positive laws, are subject to change, like the right-handed man who trains to become ambidextrous. The variability of the rules that result from the will of men is easily explained by the fact that there are different forms of government, but, he points out in somewhat cryptic terms, that “there is but one constitution that is naturally the best everywhere”. The key seems to lie in the relationship between the universal and the particular: thus, the same universal prescription can be fulfilled in multiple ways. What Aristotle even seems to suggest is that justice, a universal idea, is always embodied, concretised and that, rather than reflecting on the idea of justice in the abstract (as Plato would do), it is from these concrete experiences that a reflection on justice should be induced. This variability of natural law is also an effective response to the sophists' argument that nature is unchanging while law is clearly variable, which demonstrates that there is no natural law; if there is some variability in natural law (and nature), the sophist opposition falls apart. BUT Variability does not imply relativism: there is only one form of government which is everywhere naturally the best... is this to understand that there is, for each people, or each city, only one form of government which is the best for this people or this city? 7. Equity or epikea (Pg 27 sylla) Equity is indispensable for the simple reason that the law always lays down a general rule, while particular cases may arise that could not be foreseen. The legislature has no choice but to determine its rules on the basis of the most frequent cases, but it is always possible that a case may arise which, although it may at first sight fall within the scope of the law, is not intended to be governed by the solution adopted by the legislature. In this case, where the legislator has sinned by oversimplification, one has the right to correct this omission "just as the lawgiver himself would do if he were present, and as he would have provided in the law itself if the case had occurred to him". It is in this respect that the equitable would be superior to the legal just, insofar as it corrects it when justified, a more 'tailor-made' solution, as it were. In other words, the equitable is not superior to the 'absolute' just, but to the solution that would result from a mechanical application of the law to a case that does not 'fall well'. Fairness, Aristotle concludes, is thus “a sort of justice, and not a different kind of character” An important clarification: the Aristotelian notion of fairness is not related to his conception of natural justice, except perhaps for the very principle that a law should not be applied to a case that it is clearly not intended to govern. The preferred solution in such a situation is not to adopt a just decision by virtue of universal principles of justice but to identify the intention of the legislator and to try to determine what it would have decided had it been aware of the case. It is in other words, a matter of avoiding the unjust solution that would result from the application to a particular case of a law which, because of its generality, could give the impression that it governs that situation despite not being the intention of the legislator. §2. The Romans Some Background : Greece and Rome In Rome : At first, the law was strongly religious: it was the priests who pronounced the law and ritual had a predominant place. Around the 6th and 5th centuries BC, the ius gradually became secularised but retained, at least until the third century AD, its particular features: a jurisprudential, casuistic law, marked by ritual and guided by experts. Whereas in Greece, the legal issue was inseparable from the law and politics, the Roman ius had the singularity of being built as a technical knowledge that would long remain the prerogative of a restricted group of scholars (aristocrats) - System of responsa of the pontiff, i.e oral answers to questions aimed at determining what the ius was in a concrete situation. Explain the emergence of an autonomous legal function in Rome and a real science of law, absent from the Greek world Page 10 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni - The adoption of the legislation of the Twelve Tables, in 451-450 BC, reveals a plebeian will to defeat the aristocratic hegemony of an esoteric ius and to replace it with the Greek and democratic paradigm of the lex/nomos known to all. During the 4th century, the Roman experience of ius as a jurisprudential law constructed by specialists rather than derived from a general law adopted by an assembly (or imposed by a tyrant) was confirmed. The same trend continued with the development of the role of the praetors, magistrates of slightly lower rank than the consuls. They gradually developed a system of formulae for action less onerous than the lege agere, first granted on a case-by-case basis in disputes between Romans and foreigners before being the subject of a more general edict issued at the beginning of their term. Soon, a proper commercial law emerged (the ius gentium) that was supposed to be shared by all peoples. - The 4th and 3th BC also saw the growth of Rome's power (alongside the political decline of Greece). Plato, Aristotle and the Stoic philosophers had a particular impact on Roman thinkers such as Cicero and Seneca, allowing the question of natural law to enter, eventually, the Roman intellectual landscape. The reference to natural law and equity in the anonymous text Rhetoric to Herrenius, which appeared in the course of the 1st century BC, appears as an almost absolute novelty in Roman language. Law is defined as including “nature, law, custom, precedent, equity, contract”. The notion of equity (aequum) was not non-existent before but referred to a more flexible application of civil ius, more adapted to the cases submitted to the praetors and not to a natural justice. Integrated into the notion of aequitas, it will however allow to import (in part) the Greek reflections on justice. a) cicero (-106-43) 1. A few words about him and stoicism In De Republica, he wrote, in line with Aristotle, 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, and the carrying-out in real action, not in words only, of all those identical theories which those philosophers discuss at every corner”. What will make his glory will also cause his exile since, a few years later, a law is adopted at the instigation of his enemy Clodus, punishing any magistrate having made execute a citizen without preliminary judgment. He will be assassinated by Mark Antony Cicero’s stoicism : In short, according to the Stoics, philosophy includes logic, natural science and ethics, the latter playing a primordial role. Their thought is materialist (everything is matter, even the soul) and pantheistic: the order of nature, an organic unity in which determinism reigns, is identified with God, considered as a substance immanent to the world. The supreme good is virtue, the ideal of the wise man, which is closely associated with reason (and not with the emotions) and with nature. o This is a normative conception of nature, seen not only as an autonomous force that leads to the perfection of beings, but also as a higher intelligence or reason that governs the world as a whole and ensures an intelligible order. Stoic thought is based on the principle that everything in nature must be explained by reason and that every act must be justified by reason. o The Stoics conceived of the natural law inherent in humanity as the expression of the divine will that permeates and organises the entire cosmos, defending, in contrast to the Sophists, a radical identification of nomos and phusis, law and nature o 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, commands what must be done and forbids what must not be done o The most important contribution of Stoic thought to the doctrine of natural law, however, lies in the idea of a universal human nature underlying the various social conventions and extending beyond the city: the notion of a natural equality between men was born. Page 11 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni 2. About society and the rule of Law (Voy Text pg 31 sylla) Firstly, Cicero, through Scipio, explains that the public thing (res publica) is the “thing” of the people. Like Aristotle, he considers that a people is not just a group of human beings but a group gathered around a community of interests, Aristotle would say: a common good. o Cicero adds an important clarification: a second condition is necessary, namely a consensus on the law ("iuris consensu"), which some translations render as a "pact of justice" or "adherence to the same law". o Later in the text, Scipio insists: who would call a “thing of the people” (a “republic”) a “state in which all would suffer the cruel oppression of one, in which there would be no bond of law, no agreement, no will to live together, in which what makes a people would be missing?”. o This legal bond and this will to live together are therefore at the heart of what makes a republic, the thing of the people. o Siding with Aristotle against the sophists, Cicero argues that it is not so much man's weakness as a natural instinct that leads him to live in society: man is a political animal. Conversely, the 'consensus on law' can also give the impression that the foundation of society is more conventional than natural. Secondly, the notion of rule of law: o Laws are the soul of the state, those in power must apply them and all must be subject to them. The law is therefore a guarantee against arbitrariness from the public authority; a state without law is a state without a soul. ▪ Princeps legibus solutus est (Ulpian), the prince is above the law, a formula whose spirit we will find centuries later in Machiavelli and which could be the slogan of any dictatorship. It is undoubtedly by this opposite situation that we can understand the apparent paradox stated by Cicero, namely that freedom requires subservience to the law. Indeed, only clear rules known in advance can allow us to act freely, albeit within a certain framework, whereas no freedom can flourish when a tyrant changes the rules at will, thwarting the legitimate expectations of his subjects. 3. About natural law (Voy Text pg 32 sylla) In the first excerpt, Cicero expresses himself through the voice of Leilius, responding to Philus who denied the existence of natural law and who, taking over the discourse of the Greek sophists, asserted that it was not nature that had engendered justice but weakness, even going so far as to defend the idea that it was best to commit injustice with impunity. On the other hand, Aelius is convinced that there is one and the same law, eternal, unchangeable, which is in force at all times and among all peoples. It imposes what must be done and forbids bad behaviour (he who refuses to obey it will go against his own nature and, even if he/she escapes punishment here on earth, will suffer the greatest punishment, namely divine punishment). o This natural law cannot be amended, let alone abrogated by the legislator. All beings can know it because in each one is spread the right reason which gives direct access to it, without it being necessary to go through authorized interpreters. We can see here, in the wake of the Stoic doctrine, the idea that all human beings have a common humanity, which gives them access to the natural law. However, this remains a philosophical statement and Cicero did not unconditionally condemn slavery. Similarly, the reference to a divine punishment that would not be accompanied by a punishment here on earth confirms the limited practical impact that natural law has in relation to positive law. o In other works, Cicero will specify the content of natural law, which includes the right to self-defence, the prohibition of acting fraudulently or harming anyone, in particular by depriving others of property in order to enrich himself. He even goes so far as to consider it an injustice not to protect those who are harmed. Example with the art 51 of the UN Charter. The second extract: Asked by Atticus about civil law, Cicero asks him if he wants him to tell them about the legislation applicable to gutters or about universal law, knowledge of which is mediocre, because it “does not have the same practical necessity”. Page 12 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni o When Atticus asks him if, in fact, it is not in the edict of the praetor or in the Twelve Tables that one must draw the true science of law but in the deepest sources of philosophy, Cicero opines and confirms that civil law can occupy only a small and narrow place in law considered according to its nature for it is the nature of law that they want to expose, and it is to the nature of man that it is necessary to ask. Cicero then repeats that the law is the supreme reason, engraved in our nature, which prescribes what we should do and forbids what we should avoid doing. It is not to be confused with the written laws adopted by men: prior to all time, Cicero explains, it preceded every written law and the constitution of every city. o The origin of law, he points out, is therefore in nature, and the most important idea is that which makes it clear to us that we are born for justice, and that law has its foundation in nature, not in convention. o For Cicero, there are no beings who, compared to each other, are as similar, as equal as we are. Reason is indeed common to all men and only the strangeness of customs and the vanity of opinions have distracted "our sheepish souls" and masked this fundamental equality: there is no man, whatever his nation, who, having nature for his guide, cannot achieve virtue. With reason, nature has given man the right reason, and thus the right to act justly and to avoid injustice. And Atticus sums up Cicero's thinking: "the gods have provided and armed us with their blessings; then (...) men have a similar and common rule of life which reason teaches; finally (...) united to each other by natural sympathy and goodwill, they are also united by the bonds of right". 4. The breach between natural law and positive law Cicero considers 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 if he/she finds an advantage in it: if law is not based on nature, Cicero concludes, "all the virtues disappear", virtues that "arise from the inclination we have to love men, which is the foundation of law” The second extract quoted crowns the demonstration. The law that forbids adultery and rape does not need to be written down to exist from time immemorial: it is contemporary with divine intelligence, it is the natural law that imposes just actions and forbids injustices. The name of law is not enough to constitute a law, any more than the deadly recipe of an ignorant man can be called a medical prescription. It is not difficult to understand how easily this type of text will be recuperated by Christian thinkers: it is almost enough to replace "supreme Jupiter" by "God" for it to work. o The idea of a common humanity, of a right reason that will be transformed into a grace accessible to all, of a natural equality, of an inclination to love men as a foundation of law, all this will ensure the transition between Greek jusnaturalist thought and medieval Christian jusnaturalism. o However, it is important to bear in mind that, despite the terms used, Cicero was not a monotheistic believer. When he speaks of God, he is referring to an entirely abstract force, a cause, a source (the immortal gods) /!\ Cicero is not a thinker of civil disobedience or revolution. He does not encourage anyone to revolt against laws that are unjust. Perhaps what he lacked, a notion that would not appear until many centuries later, was the idea of a natural (subjective) right that the individual could exercise against the public authorities? The third caveat, already mentioned, is that one should not jump to the conclusion that Cicero's thought was even remotely representative of that of the Roman jurists of the time. b) Roman law and its Jurists (Voy Text pg 35 sylla) Gaius (120-180).Famous for his Institutes (A veritable law manual whose tripartite distinction between persons, property and actions was to have a lasting influence on continental law (and in particular the French Civil Code, therefore our code)) In the excerpt, Gaius does not explicitly refer to natural law, but the reference to 'the law which natural reason establishes among all men' and which is 'common to all peoples' smells of Ciceronian Stoicism and jusnaturalism. However, Gaius calls this law common to all peoples "ius gentium". Page 13 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni o As we have seen, it was originally a law developed by the jurisprudence of (peregrine) praetors faced with situations involving (at least) one party who was not a Roman citizen and resolved on a case-by-case basis using common customs, common sense and a principle of good faith. Gradually, this 'common' law of different peoples came closer to the notion of natural law, and in Gaius it became what natural reason established between all men. o The jurisconsult Paulus, writing shortly afterwards, distinguishes between civil law, which refers to law 'available for the benefit of all or most persons in a particular state', and natural law (ius naturale), which is 'applied to what is in all circumstances just and good, as in the case of natural law'. Here, the 'ius gentium' is not repeated, but it clearly appears to be closely related to the notion of natural law Ulpian (170-223) : establish summa division between public law and private law. o From the first page of Justinian's Digest, we learn that, according to Ulpian, the study of law is divided into two parts, the public and the private: "Public law is that which has reference to the administration of the Roman government; private law is that which concerns the interests of individuals; for there are some things which are useful to the public, and others which are of benefit to private persons. Public law has reference to sacred ceremonies, and to the duties of priests and magistrates. Private law is threefold in its nature, for it is derived either from precepts of natural law, from those of nations (ius gentium), or from those of the Civil Law.” + ( voy text pg 36) It seems difficult at first sight to determine what could have inspired this definition of natural law as what nature would have taught to all animals (including humans), whereas it was clear to Aristotle, the Stoics and Cicero that natural law was intimately linked to the human race, the only one endowed with the reason that gives it access to natural law. The answer may lie in the pragmatic approach of the Roman jurists. o Roman jurists did not deny the existence of natural law but, being practical-minded, they did not recognise it as having any special status. Thus, for most Roman jurists, natural law corresponded to the nature of things or men, to what seemed to correspond to the normal and reasonable order of human interests. ▪ Ex: contractual promises to do what was impossible in physical nature (such as selling a slave who was already dead at the time the promise was made, or committing to build a house for the next day) were to be considered void. Gradually, the reference to nature was used to defend rules derived from legal rather than physical principles. Thus, according to natural reason, a person's legal situation can only be improved and not degraded without his consent. In the same vein, in Ulpian, no reference is made to notions of justice, equity or virtue: we fall largely into the purely biological register. This 'amoralist' conception of natural law evokes the position of Callicles or, many years later, Hobbes' state of nature. This definition is all the more curious given that the Digest of Justinian also contains other quotations from Ulpian, which, on the contrary, give an important place to the notion of justice. He is said to have written: " Those who apply themselves to the study of law (ius) should know, in the first place, from whence the science is derived. The law obtains its name from justice (iustitia); for (as Celsus elegantly says), law is the art of knowing what is good and just (ars boni et aequi)”. It is also Ulpian who defines justice, following Cicero and the Greek philosophers before him, as the “steady and constant will to give each one what is his by law” ('constans et perpetua voluntas ius suum cuique tribuendi'). Finally, it was he who summarised the great precepts of law: to live honestly, to do no wrong to anyone and, again, to give to everyone what is due to him/her. It should be noted that to derive, as Ulpian did, the word "ius" from the word "iustitia" is correct neither from an etymological point of view nor, in Roman history and as we have seen, from a chronological point of view: unlike the situation in Greece, Roman law was first developed in a technical manner, the theme of justice only emerging quite late with, in particular, Cicero and the anonymous text Rhetoric to Herrenius. The very "down-to-earth" definition of natural law thus contrasts strongly with Ulpian's desire to integrate an ethical and moral dimension into Roman law. o This does not mean that Ulpian was an early advocate of the rule of law, since it is also to him that the Digest lends the famous phrase: "Princeps legibus solutus est", the prince is above the law. Such a justification of absolutism may seem irreconcilable with the fine declarations of the beginning of the Digest. It is probably an attempt by Ulpian, a jurist of the Empire, to give the public authority room for manoeuvre while protecting the Page 14 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni jurists: the prince can decide what he wants, but the jurists will interpret it in the light of what is right according to natural law. o In any case, this shows that Ulpian did not intend to defend the existence of a natural law capable of defeating positive law. The subversive dimension of natural law, evoked theoretically by Cicero, finds little support in the great text collected later by Justinian. For example, the Romans, nourished by Stoicism, fully accepted that slavery was not, contrary to Aristotle's view, a matter of natural law. o 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, specifying that it was the ius gentium that introduced slavery. Despite this contradiction between natural law and positive law, there is no question of calling this institution into question. So, the reference to the natural equality of men had no practical impact on Roman law. Centuries later, as we shall see, the same theoretical assertion was to be found in the American Declaration of Independence of 1776: no one is unaware of the difficulty of putting it into practice, even today. Chapter 2.Medieval Natural Law §1. Introduction a) general context In 476, after the overthrow of the Western Roman Empire by the Germanic peoples, Europe witnessed great population movements for five centuries, following invasions by Germans, Slavs, Arabs, Vikings and Hungarians. For a thousand years after the fall of the Western Roman Empire, the intellectual world was essentially dominated by the Christian Church, which helped natural law to survive the Middle Ages, but above all ensured that the Bible became the main legal text. The importance of this phenomenon should not be underestimated. After having been placed at the service of Roman political imperialism, Christian monotheism became the ultimate spiritual and legal reference. The primary provider of certainty is no longer, as it was for the Greeks, nature, immutable, immanent, objective and determined, but God, a subjective entity, endowed with intention and transcendent, who has granted freedom to men while imposing his divine commandments on them. It is no coincidence that the authors who will mainly hold our attention during this period are Christian thinkers: Augustine (4 th century), Thomas Aquinas (13th century), William of Occam (14th century) and the Spanish scholastics (16th century). o According to Marcel Gauchet, the passage of the year 1000 constitutes a decisive break that will determine the continuation of Western history. At that time, what had been in the making since the monotheistic invention, particularly the Christian one, was realised, namely the division of the orders of reality between the visible and invisible worlds, which would allow men to inscribe their action in this world in a different way. For the first time in history, according to him, our world becomes a horizon in itself, marking the beginning of man's autonomy from the heavens and the birth of the notion of material growth. As one might expect, such a development implies political-religious and philosophical-legal changes. On the politico-religious level, there was a permanent tension between the temporal and spiritual powers, illustrated by the famous Investiture Controversy, which essentially aimed to determine whether the Emperor or the Pope was in charge of the investiture of bishops. At the end of the 11th century, the monk Manegold of Lautenbach (1030-1103) took a position on the conflict between Pope Gregory VII and the German Emperor Henry IV, considering that the latter owed his power only to the pact concluded with his subjects and that in the event of a breach of this pact (idea of social contract and asymmetry between the Pope and the Emperor because the latter is chosen by the its subject and there is a convention between them, whereas the Pope doesn’t need this pact, his statute is given by God), the latter were relieved of their duty of allegiance. In 1324, the physician and philosopher Marsilio of Padua, in his Defensor Pacis, defended the idea of completely different spheres of temporal government and spiritual authority, and even the subordination of the Church to the State in temporal matters, for which he was forced to flee to Paris and condemned as a heretic by two popes. If the empowerment of the earthly world justified the Church's mediating position, it also limited its political claims and prepared the way for the kingdoms to come to the fore, entities more territorially limited than empires but aspiring to complete power within this limited sphere. Kings ceased to be the direct agents of spiritual government Page 15 sur 73