by Autumn Rose
Number three of the Twelve Keltrian Beliefs states: We believe that Natural Law reflects the will of the Gods and Goddesses. Most pagans would agree with that assertion--- but what exactly do we mean by “natural law”? The question is not a new one. It has been explored and debated at least since the time of the ancient Greeks. Nearly everyone who has tackled the subject has agreed that natural law is law that is fundamental, universal and unchangeable, and that it informs and helps to shape manmade law. But Heinrich A. Rommen, in his work The Natural Law: A Study in Legal and Social History and Philosophy, points out that manmade laws occasionally become inadequate due to changing circumstances or evolution in human understanding. At such times, he says, the natural law reasserts itself and guides the reformulation of manmade law. All well and good--- but it still doesn’t tell us what constitutes natural law.
It will come as no surprise that there has been little agreement on that issue. Most thinkers on the topic have simply held up their own religious precepts as natural law; and since such precepts vary from faith to faith, human thinking has never produced a description of natural law that is truly universal. However, in all the lengthy discourse on the subject, there is one consistent element. When philosophers have talked about natural law, it was always human social law that they meant: the rules by which we best interact with one another. If the concept of natural law, understood thus, were introduced today for the first time, we might well regard it as a branch of social psychology. That being the case, perhaps the place to discover the content of natural law is not in religious codes, but in manmade legal codes. If we could determine what legal codes have had in common in all times and places, might that not give us a clearer picture of what is truly fundamental, universal and unchangeable in our social nature?
I set out to test this hypothesis. Needless to say, it was not practical to review all the legal codes ever written. However, I examined in minute detail what I hope is a representative sampling, starting with the earliest known legal code, that of Hammurabi, promulgated nearly 4000 years ago. Rather than confining my research to European law and its roots and offshoots - which might or might not represent human law as a whole.
I included works on Bedouin law, the laws of the Muskogee tribe of Native Americans, and the legal code of the Ming dynasty of old China. I did not consult a modern American code, feeling that a lifetime of living in the context of modern American law provided knowledge enough for purposes of comparison.
What, then, did these studies reveal? First of all, without exception every legal code consulted contained a set of prohibitions. In all cases these included murder, rape, assault, kidnapping, theft, arson, trespass, perjury, fraud, bribery, and malfeasance in office. About half the codes mentioned treason. Cases where it was not mentioned usually involved an absolute monarch; perhaps in those cases the penalty for disloyalty lay within the discretion of the king, so that there was no need to encode it precisely. All the codes maintained a pattern of stating a prohibition and following it immediately with a statement of the punishment(s) for violating it. Of all aspects of the law, punishments showed the greatest variety, from fairly humane ones to some that we would now consider barbaric. In addition to prohibitions and penalties for violating them, all the consulted codes regulated certain categories of human interaction: sexual behavior and marriage (to varying degrees); commerce, including coinage, contracts and labor; and the use and transfer of property, especially real estate.
Besides these three categories of law--- prohibition, punishment and regulation--- human law as represented by the examined codes has displayed three characteristics worthy of comment. The first is an attempt to establish a connection with Deity, however understood and defined. Every consulted code without exception made reference to a Supreme Being or Beings, as the direct source, the inspiration, or the honoree(s) of the laws. Almost all law codes punished crimes against the temple or church more harshly than crimes against individuals or secular institutions. Some societies still do. Even in American law, where the U.S. Constitution famously lacks any reference to a Supreme Being, it’s noteworthy that every one of the 50 state constitutions does contain such a reference.
The second notable characteristic of the studied codes was a universal attempt at fairness--- one side of the coin of justice, so to speak, where vengeance is the other. This sense of fairness expressed itself in various ways. For example, in all codes the penalty for harm caused by neglect or ignorance was less than that for intentional harm, and less still or lacking entirely for harm caused by accident. The very young, the very old, and the mentally incapacitated, in every case enjoyed reduced accountability for the harm they did, and often were not held accountable at all. Lastly, every code examined made allowance for redress of grievances in the form of institutions where a citizen could make a civil or criminal complaint against a neighbor, or appeal what he considered an incorrect decision by a judge.
In one respect this universal sense of fairness failed, and that failure constitutes the third noteworthy characteristic of human law: the conspicuous lack, throughout most of history, of equal protection of the law for everyone. Slaves, foreigners and women in particular have had fewer rights and protections than others. In societies with multiple tiers of social rank, punishments for crimes were typically meted out in proportion to the rank of the victim. Of the legal codes consulted, until modern times only one applied the law without regard to gender or social status--- that of the Roman Catholic church of the Middle Ages--- and even that one stopped short of equality for members of other creeds. The very notion of human equality did not enter the discourse on natural law in any consequential way until the 18th Century, when natural-law philosophers turned their focus from faith to reason and from religion to politics. (This new version of natural law was the philosophical source of modern democracy.) The lack of legal recognition for human equality until recent times, and the fact that we still struggle so painfully with the application of the concept, suggests that the idea of equality is not inherent in human nature--- but that is another topic.
To sum up: It would be folly to suggest that all legal codes have been the same. They have shown great variety in their local interests and customs, in the severity with which they treated lawbreaking, and in the tightness or looseness of their regulation of private and public life. But, as we have seen, they have displayed an astonishing degree of uniformity in the concerns they addressed. We are probably safe in assuming that these concerns constitute an integral part of our fundamental social nature.
In Part II of this treatise we are going to examine human society within the matrix of the larger natural world. This is an aspect of natural law that has been largely neglected by philosophers. A few have acknowledged grudgingly that the larger natural world exists, but as to how human society reflects that larger world, or how Nature in general may determine our social concerns and motivate our laws, they have been mostly silent. In the Imbolc issue of Henge Happenings we will make an attempt to answer these questions.
- Arnaoutoglou, Ilias. Ancient Greek Laws. London and New York: Routledge, 1998. Law text and commentary. A comprehensive sampling from numerous Greek city-states, covering the 6th to 2nd centuries BCE.
- Bailey, Clinton. Bedouin Law from Sinai and the Negev: Justice Without Government. New Haven and London: Yale University Press, 2009. Law text and commentary. Bedouin law from late 19th to late 20th century CE.
- Brundage, James A. Medieval Canon Law. Harlow, Essex: Pearson Education Limited, 1995. Covers Church law from early Christianity to the late Middle Ages.
- ________ Constitution and Laws of the Muskogee Nation. St. Louis: The National Council, 1880. Law text. Includes U. S. laws affecting the Muskogee Nation.
- Da Ming lu. Trans. Jiang Yonglin. The Great Ming Code. Seattle and London: University of Washington Press, 2005. Law text and commentary. This code was in effect from 1397 to 1911.
- Davies, W. W. Cincinnati: Jennings and Graham, 1905; New York: Eaton and Mains, 1905. Law text and commentary.
- Drew, Katherine Fischer, trans. The Burgundian Code. Philadelphia: University of Pennsylvania Press, 1988. Law code of one of the Germanic states that succeeded the Western Roman Empire. Dates to late 5th and early 6th century. Law text.
- ________ Exodus 20:1 to 23:33 and Deuteronomy 5:1 to 26:19, The Holy Bible. Revised Standard Version. New York, Toronto, Edinburgh: National Council of Churches, 1952. The Mosaic code.
- Hogue, Arthur R. Origins of the Common Law. Bloomington: Indiana University Press, 1966. Reprinted by the Liberty Fund, Inc., 1985. English law from mid-12th to early 14th century.
- Howard, A. E. Dick. The Magna Carta. 2nd ed. Charlottesville and London: University Press of Virginia, 1998. Law text and commentary.
- Karras, Ruth Mazo, Joel Kaye and E. Ann Matter, eds. Law and the Illicit in Medieval Europe. Philadelphia: University of Pennsylvania Press, 2008. Fifteen treatises on medieval European law that illustrate how secular and canon law codes interacted.
- Kelly, Fergus. A Guide to Early Irish Law. Early Irish Series Vol. III. Dublin: Dublin Institute for Advanced Studies, 1988. Irish law dating from 7th and 8th centuries CE. Law text and commentary.
- Kolbert, C. F., trans. The Digest of Roman Law: Theft, Rapine, Damage and Insult. London, New York, Victoria (Australia), Toronto, Auckland (New Zealand): Penguin Books, 1979. The compilation of Roman laws commissioned by the Roman Emperor Justinian (527-65 CE). Commonly known as the Justinian Digest, it draws from Roman laws enacted from the 2nd century BCE to the 6th century CE. History and law text.
- Nelson, William E. Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830. 2nd ed. Athens (Georgia) and London: The University of Georgia Press, 1994.
- Rommen, Heinrich. Trans. Thomas R. Hanley. The Natural Law: A Study in Legal and Social History and Philosophy. Indianapolis: Liberty Fund, Inc., 1998. A history of natural law philosophy from ancient Greece to the present.
- Wolff, Hans Julius. Roman Law: An Historical Introduction. Norman and London: University of Oklahoma Press, 1951. History of Roman law from its beginnings, with emphasis on its influence on subsequent law codes.
Continued in A Treatise on Natural Law: Part II