295 



familiar with the law ; and those who are not thus familiar may readily 

 satisfy themselves of the proposition by referring to the list of rights that 

 we have given above. These, as we have observed, are not only suscep- 

 tible of demonstration but are universally received in all civilized coun- 

 tries, and the principles by which they are determined are in fact rec- 

 ognized everywhere as part of the positive law. So that to this extent, 

 in the modern European world, the dream of Cicero is fully realized : 

 "Non erit alia lex Romce, alia Athenis ; alia nunc alia posthac, sed et apud 

 omnes gentes, et omnia tempora una eademque lex obtinebit." And in this 

 general recognition of natural rights is to be found the essential char- 

 acteristic of our advanced civilization. Nor is it extravagant to say 

 that this is a law written by the finger of God, or, for those who prefer 

 the expression, by the finger of nature, upon the heart of man — not 

 meaning thereby that it is written upon the heart of each man so as to 

 be discerned without reasoning, but that it is the nature and constitu- 

 tion of man in the progress of civilization to recognize and under- 

 stand it. 



(5) Our proposition, it will be observed, asserts that natural right con- 

 stitutes an integral part of the actual law of every country. Those, 

 therefore, who regard it merely as the matei'ial out of which, or the norm 

 after which, the law ought to be fashioned, in effect deny the proposi- 

 tion, and also, in effect, deny the existence of natural right, which, 

 from its essential nature, must be regarded as asserting its own para- 

 mount obligations over government as well as over individuals. But 

 to this class belong many of the theoretical or philosophical, as distin- 

 guished from the historical jurists, of modern Europe. These accept 

 the doctrine of natural right without reservation, but, owing to their 

 want of familiarity with the positive law, or to other causes, do not 

 seem fully to have grasped its significance. The true expression of the 

 doctrine, I repeat, is that justice, or natural right, so far as its princi- 

 ples are determinate, constitutes in every commonwealth, not merelj^ 

 an ideal to be attained by legislation, but an integral or component part 

 of the actual or positive law of the land, as binding on the courts and 

 the State generally, as any other part of the law, and that its violation 

 by either is not only unjust but unlawful ; and that this is to be under- 

 stood not merely as a philosophical theory but as a received principle of 

 every system of positive law. But the writers referred to, while, in 

 some respects, expounding admirably the principles of natural right, 

 and showing by actual demonstration their clear and definite character, 

 seem to assume that they are not in fact law, and can become law only 

 by some sort of legislative transmutation. 



Thus Kant — in his celebrated definition of the several powers of the 

 State, namely, the legislative, the executive, and the judiciary powers, 

 which we have already quoted — in efiect asserts that the law is alto- 

 gether the expression of the will of the legislative power. And so 

 Bluntschli, referring to the theory that the State should be merely a 



