Quotes of the day

From Bracton on the Laws and Customs of England, 1220-1230 with revisions in 1250:

What natural law is.

[019] 21Natural law is defined in many ways. It may first be said to denote a certain
[020] instinctive impulse arising out of animate nature by which individual living things
[021] are led to act in certain ways. Hence it is thus defined: Natural law is that which
[022] nature, that is, God himself, taught all living things. The word ‘quod’ is then in
[023] the accusative case and the word ‘natura’ in the nominative. On the other hand,
[024] it may be said that the word ‘quod’ is in the nominative case, so that the definition
[025] will be this: Natural law is that taught all living things by nature, that is, by
[026] natural instinct. The word ‘natura’ will then be in the ablative case.22 This is what
[027] is meant when we say that our first instinctive impulses are not under our control,
[028] but our second impulses are. That is why, if a matter proceeds only as far as simple
[029] sensual pleasure, not beyond, only a venial sin is committed. But if it proceeds
[030] farther, to the contriving of something, as where one puts into practice what he
[031] has shamefully thought, it will then be called a third impulse and a mortal sin is
[032] committed.23 And note that for the reason that justice is will, taking into account
[033] rational beings only, natural law is impulse, regard being had to

[001] all creatures, rational and irrational. There are some who say that neither will nor
[002] impulse may be called jus, jus naturale or jus gentium, for they exist in [the realm of]
[003] fact; will or impulse are the means by which natural law or justice disclose or manifest
[004] their effect, for virtues and jura exist in the soul.24 This perhaps is said more clearly,
[005] that natural law is a certain due which nature allows to each man. Natural law is also
[006] said to be the most equitable law, since it is said that erring minors are to be restored
[007] in accordance with [natural] equity.25

From this we do understand that there is the Law of Nature, that thing which exists around us and all things in the Universe. Natural Law is self-evident in that it exists, functions and continues without our help, oversight or reason. We cannot change Natural Law but must understand it and come to terms with it. And like all good laws it is applied equally, without favor, without prejudice, and constantly obeyed as there is no choice in that matter. Even if we change the form of ourselves in outward appearance, so long as we partake of the Natural Law we are ruled by it.

After Natural Law comes the first Law we make as rational beings as part of Nature. It is, not surprisingly, not civil law at all:

What the jus gentium is.

[017] 33The jus gentium is the law which men of all nations use, which falls short of
[018] natural law since that is common to all animate things born on the earth in the
[019] sea or in the air. From it comes the union of man and woman, entered into by the
[020] mutual consent of both, which is called marriage. Mere physical union is [in the
[021] realm] of fact and cannot properly be called jus since it is corporeal and may be
[022] seen;34 all jura are incorporeal and cannot be seen. From that same law there
[023] also35 comes the procreation and rearing of children. The jus gentium is common
[024] to men alone, as religion observed toward God, the duty of submission to parents
[025] and country, or the right to repel violence and injuria. For it is by virtue of this
[026] law that whatever a man does in defence of his own person he is held to do lawfully;
[027] since nature makes us all in a sense akin to one another it follows that for one to
[028] attack another is forbidden.36

What manumission is.

[030] 37Manumissions also come from the jus gentium. Manumission is the giving of
[031] liberty, that is, the revelation of liberty, according to some, for liberty, which
[032] proceeds from the law of

[001] nature, cannot be taken away by the jus gentium but only obscured by it,38 for
[002] natural rights are immutable. But say that he who manumits does properly give
[003] liberty, though he does not give his own but another’s, for one may give what he
[004] does not have, as is apparent in the case of a creditor, who [may alienate a pledge
[005] though the thing is not his,39 and in that of one who] constitutes a usufruct in his
[006] property.40 For natural rights are said to be immutable because they cannot be
[007] abrogated or taken away completely, though they may be restricted or diminished
[008] in kind41 or in part. 42It was by virtue of this jus gentium that wars were introduced
[009] (that is, when declared43 by the prince for the defence of his country44 or to repel
[010] an attack) and nations separated, kingdoms established and rights of ownership
[011] distinguished. Individual ownership was not effected de novo by the jus gentium but
[012] existed of old, for in the Old Testament things were already mine and thine, theft
[013] was prohibited45 and it was decreed that one not retain his servant’s wages.46 By
[014] the jus gentium boundaries were set to holdings, buildings erected next to one
[015] another, from which cities, boroughs and vills were formed.47 And generally, the
[016] jus gentium is the source of all contracts48 and of many other things. What long
[017] custom is will be explained below.49

Thus Nations do not arise from towns and villages, nor does civil law they all rest upon jus gentium: the Law of Nations. That source of law comes out of the Natural Law and abides by it and creates space within it for us to experience liberty. Liberty gives us definition to its positive and negative aspects of things when we apply rational thought to it. Thus we have positive and negative liberty in all things we can do as natural beings, and by reason we can then decide on which is best to exercise and which we must not exercise to maintain relationships with others. It is the act of setting aside certain negative liberties and overseeing them amongst ourselves that allow our positive liberties to flourish, to nurture us and to give us insight into our nature and the Natural Law.

The Law of Nations is universal in that wherever man comes to woman to form family, it instantly appears when they no longer exercise their liberties in full but use reason to decide which is best for them both and their family to prosper using their liberty. Any Nation, State or other higher form of governance rests upon this platform and any attempt to disregard it, corrode it or otherwise put it in jeopardy does not enhance our reason or our liberty, but denigrates it and pushes us more towards Natural Law.

Law of Nations does not need to be written for it to be mandatory and universally understood. Societies will partake in it differntly, as is their wont, and their right to defend themselves is absolute not only due to the Natural Law but from the Law of Nations. To understand the universality of Law of Nations find any text describing how one Nation or State then communicates with another and you will find ambassadores, understandings about delineations of territory, of reciprocity of actions, of agreements that can be entered into and that cannot be entered into: this happens from the oldest texts in China and Korea through the Incans and Mayans through the Ancient Bronze Age through to this very day as we still create families. There is common and unspoken law that exists universally because not only of who we are, creatures of Nature, but what we do, utilize rational thought to define our liberties and use the creative ones and relegate the destructive ones to common oversight. We create government because we must ensure our negative liberties are not used to our common ill.

When individuals partake of their negative liberties against us, when they partake in Private War, we can refer to them as reverting to a state of savagery as they now reclaim all their natural liberties to themselves. Thus any terrorist or pirate is not just a common criminal, but a criminal against all mankind by Law of Nations. They endanger the very structure and fabric we create to protect our families, our neighbors and our Nations. Abolish the top and the rest fractures into chaos and yet can be reborn by the simple act of marriage, of reaching out to our fellow man and woman to abide by utilizing our positive liberties to our benefit and keeping a wary eye upon our negative ones in common.

Some day we will remember this lesson.

As it is we argue ignoring it and thus lose contact with the Law of Nations and find our squabblings decending to the Law of Nature and savagery. No good can come of this.

ajacksonian on June 30, 2010 at 7:49 AM