with Gentilis the jus humanum from the jus divinum given in the Scriptures. The former determines, on the one hand, the legal relations of individuals, and, on the other, those of whole nations; it is jus personale and jus gentium.[1]
The distinction between natural and conventional law which has been already mentioned, finds place within both: the positive law of persons is called jus civile, and the positive law of nations, jus gentium voluntarium. Positive law has its origin in regard for utility, while unwritten law finds its source neither in this nor (directly) in the will of God,[2] but in the rational nature of man. Man is by nature social, and, as a rational being, possesses the impulse toward ordered association. Unlawful means whatever renders such association of rational beings impossible, as the violation of promises or the taking away and retention of the property of others. In the (pre-social) state of nature, all belonged to all, but through the act of taking possession (occupatio) property arises (sea and air are excluded from appropriation). In the state of nature everyone has the right to defend himself against attack and to revenge himself on the evil-doer; but in the political community, founded by contract, personal revenge is replaced by punishment decreed by the civil power. The aim of punishment is not retribution, but reformation and deterrence. It belongs to God alone to punish because of sin committed, the state can punish only to prevent it. (The antithesis quia peccatum est—ne peccetur comes from Seneca.)
This energetic revival of the distinction already common in the Middle Ages between "positive and natural," which Lord Herbert of Cherbury brought forward at the same period (1624) in the philosophy of religion, gave the
- ↑ The meaning which Grotius here gives to jus gentium (=international law), departs from the customary usage of the Scholastics, with whom it denotes the law uniformly acknowledged among all nations. Thomas Aquinas understands by it, in distinction to jus naturale proper, the sum of the conclusions deduced from this as a result of the development of human culture and its departure from primitive purity. Cf. Gierke, Althusius, p. 273; Deutsches Genossenschaftsrecht, vol. iii. p. 612. On the meaning of natural law cf. Gierke's Inaugural Address as Rector at Breslau, Naturrecht und Deutsches Recht, Frankfort-on-the-Main, 1883.
- ↑ Natural law would be valid even if there were no God. With these words the alliance between the modern and the mediaeval philosophy of law is severed.
