CHAPTER V. 



The Subject of Jukisprudence Continued ; And Herein op the 

 Doctrine op Natural Right. 



§ 47. Of Prevailirig Misconceptions as to the Nature of Natural Rigid. 



The subject of natural right is one of fundamental importance, and as 

 many erroneous notions prevail with reference to it, it ■will require an ex- 

 tended consideration. 



The term natural right, or natural law, is a mere translation of the jus 

 naturale of the Roman lawyers ; and, in the Latin, the term j«s naturm is 

 precisely equivalent ; but these terms are commonly translated by us by 

 the expressions, "natural law" and "the law of nature;" and, conse- 

 quently, the same ambiguity, as in the case of the law, is presented. 

 Hence, the modern English jurists, having no other conception of law 

 than as being merely legislation, suppose that the term law is here used 

 in the same sense, and that to account for the existence of natural law, or 

 the law of nature, a legislator must be supposed, (a) But obviously, the 

 Roman lawyers, in speaking of natural law {jus naturale), which, they 

 defined as the law, or jus, " which natural reason has established among 

 all men," did not use the term, law, or jus, in the sense of legislation, or 

 conceive that a legislator was implied by it ; nor, so far as I know, has 

 any one, other than the Austinian jurists, ever done so. 



On the contrary, all that is implied by the term, natural right — which 

 is but another expression for right reason — is, that there are certain 

 natural principles, governing the jural I'elations of men, determined or 

 established by reason. (6) 



Another very common error with regard to the nature of natural right, 

 as conceived by the Roman jurists, regards it as derived from the con- 

 fessedly fictitious notion of a state of nature, or of natural society existing 

 without government. Tliis is the notion of Sir Henry Maine, who is 

 commonly regarded by English jurists as having finally established the 

 true theory of jurisprudence, by modifying, in some essential particulars, 

 that of Austin ; and whose views, on account of the reputation of the 

 writer, are given at length in the note, (c) But this notion is altogether 

 without foundation. The Roman doctrine of the jus naturale, or jus 

 gentium, as will be seen, originated with Aristotle ; and that in his mind 

 it had no connection with the impossible hypothesis of a state of nature is 

 sufficiently shown by his definition of man as being by nature a political 

 animal, and by his conception of natural right, or as he called it, the 

 nomos koinos, or common law, as being part of the law of the State. 

 Which was also the view of the Roman lawyers ; who, as the author him- 



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