Natural Law in Court

A History of Legal Theory in Practice

R. H. Helmholz

• Publisher: Harvard University Press
• Year: 2015
• ISBN:
  9780674504615
• Topic: Law
• Subtopic: Legal History
• Index: Law

The theory of natural law grounds human laws in the universal truths of God's creation. Until very recently, lawyers in the Western tradition studied natural law as part of their training, and the task of the judicial system was to put its tenets into concrete form, building an edifice of positive law on natural law's foundations. Although much has been written about natural law in theory, surprisingly little has been said about how it has shaped legal practice. Natural Law in Court asks how lawyers and judges made and interpreted natural law arguments in England, Europe, and the United States, from the beginning of the sixteenth century to the American Civil War.R. H. Helmholz sees a remarkable consistency in how English, Continental, and early American jurisprudence understood and applied natural law in cases ranging from family law and inheritance to criminal and commercial law. Despite differences in their judicial systems, natural law was treated across the board as the source of positive law, not its rival. The idea that no person should be condemned without a day in court, or that penalties should be proportional to the crime committed, or that self-preservation confers the right to protect oneself against attacks are valuable legal rules that originate in natural law. From a historical perspective, Helmholz concludes, natural law has advanced the cause of justice.

1

Legal Education in Continental Europe

AN EXPLORATION OF the law of nature’s impact on legal argument and court practice in European lands should begin by confronting two questions. First, what (if anything) did most lawyers know about the law of nature? Second, what role (if any) did they expect what they knew should play in their professional careers? It is just as well to start by admitting that most lawyers are not given to prolonged abstract thought, even though large ideas may enter into their working lives from time to time. If they wish to succeed in their profession, they want and need to address the immediate problems of their clients, mostly practical problems that demand practical solutions. Legal philosophy does not come into it. This is true today, and it was true yesterday. It has therefore seemed sensible to many historians of the law to pass over the learning about the law of nature found in the speculative works of theologians and jurists with no more than a momentary glance. The abstract theories spun out in academic treatises could only have been irrelevant to the professional lives of the men whose lives were spent in giving advice, drafting documents, and trying cases: individuals whose livelihood was derived from the mundane practice of law.

However sensible it appears, this is too hasty a conclusion. It may be a proper way of drawing inferences about the immediate interests of practicing lawyers, but it does not prove that these men knew nothing about natural law. Still less does it prove that they regarded what they did know as no more than abstract theory. It does not even mean that natural law was of no immediate use in dealing with the legal problems they faced every day. We must look to see. And we can see with greater clarity after having taken a slight detour to examine the place of the law of nature in the education through which European lawyers passed. English and American lawyers in earlier centuries faced a somewhat different situation; most of them did not pursue formal study of the law at a university. They learned by doing and observing—by serving as clerks, attending law courts, and reading on their own.¹ The extent of their early contact with the law of nature will be explored in Chapters 3 and 5. We begin with legal education on the European Continent. It normally took place within a university’s law faculty.

The European ius commune

Although it did share some features with the training offered in modern American law schools, in important ways the legal education offered in European universities differed markedly from our own. It began with texts—the texts contained in the Corpus iuris civilis and the Corpus iuris canonici. The former, compiled at the initiative of the Emperor Justinian in the first half of the sixth century, comprised the Institutes, the Digest, the Codex, and the Novels. The latter, containing the basic law of the church, included Gratian’s Decretum (ca. 1140), the Liber extra, a collection of papal decretals sponsored by Pope Gregory IX (1234) and compiled by Raymond of Peñafort, the Liber sextus of Pope Boniface VIII (1298), and three more minor collections added toward the close of the Middle Ages.

The curriculum centered around and continued to depend on the texts contained in these great law books.² Learning derived from them was supplemented by the abundant literature of the ius commune—summae or consilia or ordines iudiciarii, for example—and also by the many specialized works on particular areas of the law that were written by the jurists, particularly in the sixteenth century and after. Most students would also have taken some part in the argument of Quaestiones disputatae, in which specific statutes and practical problems would have come into play.³ However, the texts of the two laws retained their preeminent position in the education of future lawyers. Even after partial moves toward organization of the curriculum by subject matter were made in the sixteenth and seventeenth centuries, and even when more attention began to be paid to local law during the same period, the standard texts of the ius commune preserved their hold on legal education. They remained the starting point.⁴ They were read aloud and then read aloud a second time. They were interpreted and augmented by commentaries attached to them, but they were not shunted aside.

Texts from the two laws were virtually always accompanied by the glossa ordinaria, which explained and enlarged upon their meaning. Some of these glosses took on an authority of their own, establishing a communis opinio about the meaning and scope of particular provisions in the formal law. That opinion might be added to or subtracted from by other lawyers, even with materials from customary practice of local law or from a fuller systematic understanding of the ius commune. However, the texts themselves, together with academic commentaries on their meaning, remained at the center of most law students’ education. Lecturers might criticize the contents of a text or gloss and puzzle over the meaning of a phrase found in one of them,⁵ but their primary focus remained fixed on the texts found in the Corpus iuris civilis and the Corpus iuris canonici. One sees this dominance quite clearly from the character of the authorities that were cited before the courts; the exemplary work of Alain Wijffels on the records of the court at Malines has shown this dependence in detail. The great majority of the citations in them were taken from the basic texts of the ius commune.⁶ What they said and what commentators made of them were what counted in practice.

The character of this approach to law did not vary greatly in substance from one university to another, and it did not change materially over the course of the later Middle Ages. In time, the very stability of this approach began to make it seem stale to critics. It gave rise to complaints—complaints that grew louder as the centuries passed. The system of legal education reacted only slowly to them. In time, some teachers did react, of course. Lecturers referred to local customs or special legal problems,⁷ and eventually room was made for the formal inclusion in the curriculum for lectures on contemporary statutes and customs. These partial changes began at least from a beginning in the sixteenth century.⁸ Variant approaches, such as introduction of instruction devoted directly to the law of nature that is the subject of this book or the creation of chairs for professors of national law, were also added in some places.⁹ These developments augmented the scope and design of instruction.¹⁰ However, they were “add-ons.” The basic features of the traditional legal education in law remained intact at European universities. Local and customary laws were given only a subsidiary part in the ordinary curriculum; in many places they were regarded as best learned from experience in practice. European legal education was thus insulated from many of the fashions of public intellectual life. It was resistant to change in the fundamental authorities upon which it relied—hence the complaints.¹¹ Comic writers could lampoon its misuse of learned texts.¹² Reformers could lament that legal education had not kept up with the times. It had stagnated. Hastings Rashdall once described it as “the dreary routine of expiring scholasticism.”¹³

Rashdall had a point, but the traditional features of legal education, sometimes referred to as the mos italicus, had great strengths, too.¹⁴ The usus modernus pandectarum, beginning in the sixteenth century, if not earlier, also helped reinvigorate this approach by seeking and finding meanings in the ancient texts that earlier jurists might not themselves have seen.¹⁵ By its application, texts from the Digest could be interpreted creatively enough to meet situations undreamt of in ancient Rome. Embracing this method was a reasonable choice to have made. Critics of traditional methods of learning—the legal humanists, for example—rarely put forward realistic doctrinal alternatives to replace them.¹⁶ In some ways, their own attention to the texts themselves was actually greater than that of their opponents. For purposes of this survey of legal practice, however, the important point to consider is that, unlike modern legal education in the United States, the curriculum began with standard texts, some of which dealt with the basic character and purposes of law and had a close connection with the law of nature. Instructors did not plunge students immediately into the intricacies of case law. Nor did they immerse the students in complex theories of jurisprudence or social science. They began with a listing of the law’s constituent elements and a statement of its high purposes. Those purposes were meant to be achieved, in some part, by applying the tenets of the law of nature.

If this approach entailed a certain separation from current court practice the students would face after the leaving the academy, it was the reality. We must take legal education as it then existed, recognizing (as we should) that in our own day a gap between legal education and the daily work of lawyers remains. We must seek first to understand the part the law of nature played in the existing curriculum so that we can better approach the role it could play in the courts. This is not a difficult task, for even a brief examination shows that European legal education during the Middle Ages and long thereafter included a significant exposure to the subject that it is the purpose of this book to explore.

The Roman Law

Progress to a law degree for students in civil law faculties at medieval universities began with the Institutes and the Digest of Justinian. The two first titles in both of these collections were De iustitia et iure and De iure naturali et gentium et civili. Lectures given each year opened with a recitation of these titles and at least a brief exploration of their contents.¹⁷ Thus, European law students first learned what the fundamental purposes of law were. They then heard about the basic sources of law that were employed to achieve those purposes. Natural law was part of both. It was treated as a foundation for the other two basic sources of law, the ius gentium (the positive law common to all nations) and the ius civile (the positive law of particular lands).

The law of nature was referred to in numerous places in these opening titles and it appeared in the Codex as well.¹⁸ Students thus began with texts that stated the assumption that God had implanted certain principles of conduct and justice in the hearts of men and that these principles furnished a correct foundation for all positive law. Probably it would not have been the first time students had heard this stated. The Bible repeatedly proclaimed it to be so (e.g., Ps 40:8, Jer 31:33, Heb 8:10), and most students would have known of this connection between law and justice from their own reading, if not also from repeated experience and the lives of their ancestors. The assumptions that established a law of nature were widely recognized,¹⁹ as readily assumed to be normal parts of life as the assumption of the human appetite for material gain is today.

The law so implanted in men’s hearts was meant to teach them the way to justice. The positive law, customary or statutory, was meant to build upon it, implementing the law of nature’s general prescriptions with specific rules and sanctions. A basic purpose of law, students would have heard, was to do right and secure to each person what was due to him. That is what the law said. It is also what the teachers said.²⁰ Determining what was due in fact to each person might not have been immediately obvious to beginning law students. Indeed, it is not obvious today. However, the students would have heard that a fuller understanding of the law would come if they drew conclusions from principles of morality fashioned from the law of nature and if they looked behind the positive law for those same principles. One function of legal education was to teach students how to do this.

To judge from the contents of the glossa ordinaria that accompanied the texts and clarified the substance of what was being taught, students would also have heard the threefold division of the law found both in the Digest and the Institutes being discussed with examples.²¹ Of these three basic kinds of law, natural law came first. Surviving notes show that lecturers gave the definitions and the attributes appropriate to it and to the two other sources of law in some detail. In reading the glosses and hearing the lectures, students would also have been directed to subsequent texts in the Digest or the Codex where they could see how the laws of nature as well as the ius gentium and the ius civile had been put into practice. They would have heard connections made between the three, and they would also have discovered where refinements in the reach of natural law principles had been made by the other two principal sources of law.

So, for example, the text of the Institutes stated that it was an obligation under the law of nature for parents to provide care and sustenance for their children (Inst. 1.2). Without nurture, all children would quickly perish. This was so natural an obligation that even wild animals followed it by instinct, an illustration of Ulpian’s famous statement that the law of nature was common to both animals and human beings (Dig. 1.1.3). The medieval gloss to the Institutes then added a reference to another text in the Digest.²² That text recognized the obligation but stated that it might not apply in practice if the child was capable of supporting himself, except in the special situation where illness prevented an otherwise prosperous child from meeting his own obligations. If such an illness intervened, it said, the parental obligation based upon the law of nature was revived, at least until the child had recovered from his illness. That text would thus have suggested to the student both that the parent’s natural obligation lasted beyond infancy and that it was not necessarily absolute. Had the student looked further, examining the gloss to the text from the Digest, he would have found more references of the same sort, places where the natural obligation was expanded or contracted in light of attending circumstances. These references led to still more texts and glosses, dealing, for instance, with whether or not the obligation extended to illegitimate children and even to a discussion of whether prosperous children were themselves obliged to support needy parents.²³ This process could continue from one text with its gloss to another, always allowing students fuller access to the learning found in the ius commune. It could be augmented by consulting one of the many general works written for law students that gradually became available from the later Middle Ages, particularly after the invention of printing.²⁴ If carried out conscientiously, the search could last until all but the most enthusiastic students were exhausted.²⁵ However, in the process students would have more fully understood both the reach of the parental obligation toward their children and the place occupied by the law of nature in fashioning it.

Besides these basic texts, law lecturers regularly made reference to what might be described loosely as further reading.²⁶ A huge store of it existed. If students working through the texts paid any h...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Preface
• Abbreviations
• Table of Citations to the ius commune
• Table of English Cases
• Table of American Cases
• Introduction
• 1. Legal Education in Continental Europe
• 2. The Law of Nature in European Courts
• 3. Legal Education in England
• 4. The Law of Nature in English Courts
• 5. Legal Education in the United States
• 6. The Law of Nature in American Courts
• Conclusion
• Notes
• Bibliography
• Index