By Autumn Rose 

Autumn Rose

Autumn Rose

In Part I of this treatise we reviewed a sampling of law codes representing societies around the world and covering almost 4000 years of history.  From this review we discovered that all the codes prohibited a uniform set of destructive acts.  All punished violations of those prohibitions with greater or lesser severity.  All regulated commerce, the use and transfer of property, and sexual conduct and marriage.  All of them assumed the existence of a Deity or Deities, and all attempted to be fair in formulating and applying the law, with one exception: Until recent centuries no law code recognized the equality of all human beings, and modern codes still struggle with the concept.

Given the uniformity of the concerns expressed in legal codes in all times and places, it seems logical that those concerns must have a single source, and equally logical that that source must be humanity’s shared social nature.  But what is the source of our social nature?  The thesis of this work is that we are part and parcel of the larger natural world, that we respond to the same imperatives operating in the rest of Nature, and that those imperatives are the source of our social nature.  What, then, are these imperatives -- these “natural laws” in which human social law is embedded?

The most fundamental natural laws are those of mathematics, physics and chemistry.  These laws govern all matter, both organic and inorganic -- but our concern here is with the organic, with life.  What we are seeking are the laws (in addition to mathematics, physics and chemistry) that apply to all life, both animal and vegetable, and from the simplest to the most complex -- including us.  In the course of this search we will speak of groups and individuals, groups being anything other than individuals - e.g., species, ecosystems, kin groups, communities, nations, and so on.

The first and most basic law of life is simple: Survive! This imperative applies to both individuals and to groups.  For individuals, of course, survival is ultimately a lost cause.  Most lifeforms live only for a season or less, and even among more complex species individuals rarely survive beyond their useful life.  At its simplest, “useful life” refers to the ability to procreate. In socially organized species it includes as well the ability to contribute work for the good of the group, which ability diminishes with an individual’s age.  But however hopeless their quest for survival may ultimately be, individuals are programmed to extend their lives as much as possible and frequently fight hard to do so.   The impulse to survive is undoubtedly the strongest biological impulse.

What are the methods of survival?  We have mentioned procreation, which is the chief means by which groups survive --and then there is acquisition.  There can be no survival without nourishment, shelter from the elements and protection from danger, and means must be found to acquire these necessities.  For plants, acquisition is almost entirely a passive process.  A plant can stretch roots down into the ground and leaves up into the air to collect nutrients, but it cannot relocate under its own power from the place where it is rooted.  If that place does not supply its needs, it probably will not survive to reproduce.  Animals, with their power of locomotion, can venture abroad in search of sustenance and safety.

And what are the methods by which lifeforms acquire what they need?  By competition and cooperation.  We sometimes hear the expression “It’s a jungle out there,” which is based on the premise that life in the wild is a state of unbridled and brutal competition.  There is competition, of course, but also a great deal of cooperation occurring in Nature.  Some of it is unintentional.  A honey bee probably has no plans to assist a plant with its reproduction, but it does so anyway in the course of flitting from flower to flower to feed.  Plants likewise probably have no idea that the oxygen they expire enables animals to breathe, and we have only recently understood that the carbon dioxide animals exhale helps to support plant life.  In the more complex forms of animal life, however, at least some cooperative acts may be consciously chosen.  We used to believe that all non-human behavior was instinctive, but studies in the past few decades have revealed that more animal behavior than we imagined is learned, either from parents or from individual experience.  Do wolf packs organize themselves to run down their prey in a certain way because they are genetically programmed to do so, or because they remember that that’s the most efficient way to do it?   Whatever the answer, there is no question that animal groups in the wild practice cooperation. On the other hand, such groups usually have an alpha male, a position that has to be competed for. This is only one example of how competition and cooperation both contribute to a group‘s survival.

It hardly needs saying that we find innumerable examples of both in human society.  Each has its positive and negative applications.  Competition among individuals has the positive effect of elevating the ablest among us to useful positions, but when it goes awry it can be destructive, as in the case of war.  And cooperation loses its usefulness when it becomes mere mindless conformism. Ironically, social groups sometimes organize (cooperate) for the purpose of competing.  War is one example of that.  Politics is another, and team sports another still.  It often happens that an individual may be in conflict (competition) with the very group or groups on which he is dependent.  When an individual’s personal interest conflicts with the interests of those around him, or with the common good, he may commit acts that are disruptive of life in his vicinity, sometimes even criminal.  Obviously the interplay of competition and cooperation in human society is complex --more complex, perhaps, than elsewhere in Nature.  Nevertheless, it is an expression of the same impulses that operate in the rest of Nature.

But what is the connection between these natural impulses and the legal codes we cited in Part I?  To answer that, we will return to a consideration of our fundamental imperative, survival.  Like individuals, groups seek to survive, and the most cursory examination reveals that social groups regard a measure of order as essential to that survival.   Order brings with it an expectation of predictability and safety, which produce in turn a sense of security --and the more secure an individual feels, the less likely he is to disrupt the social order.

Repeatedly in human society, instances occur where cooperation is desirable but absent, and other instances occur where competition is undesirable but present.  Both situations are destructive of order and need to be remedied, and manmade laws have been the answer for thousands of years.  So societies have a goal, survival; a strategy, the maintenance of order; and a tactic, laws that maximize cooperation and minimize the harmful kinds of competition.

One question remains: Is the human desire for order really a reflection of Nature?

Contemplating such natural phenomena as hurricanes, tornadoes, floods, earthquakes and volcanic eruptions, we may well wonder if Nature and order have anything to do with each other.  But then there are those previously mentioned laws of mathematics, physics and chemistry.  Even hurricanes and earthquakes and the like unfold according to these most fundamental of natural laws.

We began Part I of these reflections by citing the will of the Gods and Goddesses, and we will finish here by doing the same.  In view of the undeniable truth of the observation that concludes the previous paragraph, we may fairly say that the Gods and Goddesses of Nature do indeed ordain order --but not too much of it.  (And even in this we humans reflect Nature at large.)


by Autumn Rose

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