HISTORY OF LAW 251 



difficult to perceive now the benefit even from a philosophical stand- 

 point of an assumption for which no foundation of fact can be 

 ascertained. But to make such an assumption the basis of criticism 

 of or resistance to positive law is to introduce disorder into the 

 social system, a result wholly inconsistent with the spirit of the 

 Stoic philosophy. 



Nevertheless, it is in the assumption that the civil law as it was 

 finally developed at Rome is founded upon and embodies the natural 

 law, that superior excellence has been claimed for it by Natural 

 enthusiastic students and advocates. There are sen- Law ^ s T 

 tentious and catching phrases in the Institutes of Roman 

 Justinian with reference to law and justice borrowed, Jurists. 

 of course, from early writers, which have commended the civil law 

 to those who like to philosophize about jurisprudence. It seems not 

 to have seriously occurred to the advocates of the superiority of the 

 civil law system that it should be judged by its practical results 

 rather than by its theories, and that the notions of right and justice 

 which are expressed in general phrases by the expounders of the 

 civil law are so far common human property that they may be 

 found tersely and cogently set forth by Hammurabi or Confucius 

 or Moses or Mohammed. 



The conception of a jus gentium has been useful in the develop- 

 ment of the principles to be applied in private international law, 

 and the adaptability of the assumed natural law as Uses of Jus 

 furnishing fundamental principles for the exposition of Gentium. 

 public international law has led to a general acceptance in inter- 

 national law, public and private, of the civil law as containing the 

 law of nature. But it is doubtful if any substantially valuable por- 

 tions of the recognized international law would have been wanting 

 had there never been a civil law system or an assumed system of 

 natural law. Public international law has been developed like 

 any other system out of usage, and consists of the rules and prin- 

 ciples in accordance with which nations maintain relations to each 

 other, just as customary law is composed of like rules and principles 

 in accordance with which individuals are related to each other in 

 society. It is the general consensus as to what such rules and prin- 

 ciples ought to be so far as it has been ascertained and in an in- 

 definite way accepted. 



The assumption of a law of nature has had its most potent 

 influence, however, in politics rather than in jurisprudence. It has 

 furnished arguments and justification for the overthrow Natural 

 of tyrannical and unjust governments, and has made Law and 

 easy the way for the extension and practice of personal com act 

 liberty. Conceptions of natural rights upon which gov- Theories 

 ernments should not infringe, and of the social compact in Politics - 



