290 



self states, regarded the jus gentium, or jus naturale, "as something be- 

 longing to the present, something entwined with existing institutions." 

 And this also was the view of English lawyers prior to the advent of 

 Bentham and Austin. And of the truth of the doctrine, which simply 

 asserts that reason, justice, or right, is part of the law, no more striking 

 proof can be given than is furnished by the observation of Sir Henry 

 Maine himself, on tlie part it performed in the development of the Roman 

 law, viz.: that "the progress of the Romans in legal improvement was 

 astonishingly rapid, as soon as stimulus was applied to it by the theory of 

 natural law," and that "he knew of no reason why the law of the 

 Romans should be superior to that of the Hindus, unless the theory of 

 natural law had given it a type of excellence different from the usual 

 one " * 



§ 48. Statement of the Doctrine of Natural Right. 



The doctrine of natural right simply asserts that there are certain prin- 

 ciples of justice existing independently of human institutions, by which 

 the conduct of individuals towards each other, and also that of the State, 

 ought to be regulated. But this is also in effect to assert the existence of 

 natural rights ; for the terms, a right, and justice, are strictly correlative ; 

 whatever a man may justly do, that he has a right to do ; and hence the 

 term rights, taken collectively with reference to an individual, denotes 

 merely the sphere or province within which he may act freely without 

 injustice. The relation of the two terms is therefore precisely expressed 

 in the definition that justice consists in the observance of rights f And 

 hence, to assert the existence of justice is but another mode of asserting 

 the existence of natural rights. 



Of the existence of justice, and consequently of natural rights, it is im- 

 possible to doubt. The conviction of their existence is so universal, so 

 profoundly rooted in the belief and sentiments of mankind, and so evi- 

 dently a constant attribute of human consciousness, that the argument in 

 support of the proposition, except to those who expressly or in effect deny 

 it, is hardly necessary ; and as to those, a sufficient refutation of their 

 views may be found in the logical defects of their own arguments, to 

 which we have adverted. 



To establish the doctrine of natural right affirmatively, the most 

 efficacious argument consists in the simple enumeration of the many 

 familiar rights recognized in every system of law, such as the right to 

 personal liberty and security, or, as it may be more properly called, the 

 right of self-ownership, the right of property, the right of husband in wife, 

 and parent in child, and vice versa, and other rights of ownership ; and 

 riglits of obligation, such as to the performance of contract, and com- 

 pensation, or restitution, in cases of delict ; allof which are simply natural 

 rights recognized by the State, (rf) 



The rights above enumerated are universally recognized in all civilized 



* Ancient Law, p. 75. t V- infra, p. 299. 



