The old Germanic state was a conglomerate of positive law and specific
custom, having no existence beyond the laws, which were its formative
constituents. Such a conception did not satisfy mediaeval publicists,
imbued with antique views of the State’s further aims and potency. Nor
were all men satisfied with the State’s divinely ordered origin in human
sinfulness. An ultimate ground for its existence was sought, commensurate
with its broadest aims. Such was found, not in positive, but in natural
law--again an antique conception. That a veritable natural law existed,
all men agreed; also that its source lay back of human conventions,
somehow in the nature of God. All admitted its absolute supremacy, binding
alike upon popes and secular monarchs, and rendering void all acts and
positive laws contravening it. It must be the State’s ultimate constituent
ground.
God was the source of natural law. Some argued that it proceeded from His
will, as a command, others that its source was eternal Reason announcing
her necessary and unalterable dictates; again its source was held to lie
more definitely in the Reason that was identical with God the _summa ratio
in Deo existens_, as Aquinas puts it. From that springs the _Lex
naturalis_, ordained to rest on the participation of man, as a rational
creature, in the moral order which he perceives by the light of natural
reason. This _lex naturalis_ (or _jus naturale_) is a true promulgated
law, since God implants it for recognition in the minds of men.[417]
Absolute unconditional supremacy was ascribed to it, and also to the _jus
divinum_, which God revealed supernaturally for a supramundane end. A
cognate supremacy was ascribed to the _jus commune gentium_, which was
composed of rules of the _jus naturale_ adapted to the conditions of
fallen human nature.
Such law was above the State, to which, on the other hand, positive law
was subject. Whenever the ruler was conceived as sovereign or absolute, he
likewise was deemed above positive law, but bound by these higher laws.
They were the source and sanction of the innate and indestructible rights
of the individual, to property and liberty and life as they were
formulated at a later period. It is evident how the recognition of such
rights fell in with the Christian revelation of the absolute value of
every individual in and for himself and his immortal life. On the other
hand, certain rights of the State, or the community, were also
indestructible and inalienable by virtue of the nature of their source in
natural law.[418]
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account