A New School of Jurists 9 



manic principle that the state was bound to act by law coming 

 in contact with the revived classical idea that the state exists of 

 natural necessity for the general welfare, toward which law is 

 but a means, so that the state creates law instead of merely rec- 

 ognizing it, led men to take up once tnore the distinction of 

 natural law and positive law. 1 Positive law was the creature of 

 the sovereign. But all sovereigns were subject to natural law, 

 and their enactments in conflict therewith were simply void. 

 Thomas Aquinas made over this philosophical theory to bring it 

 into accord with theology. He divided the old ins naturale into 

 two parts, — a lex acterna and a lex naturalis, — of which the one 

 is the "reason of the divine wisdom" governing the whole uni- 

 verse, 2 the other the law of human nature, proceeding ultimately 

 from God but immediately from human reason, and governing 

 the actions of men only. Man, he held, being a rational crea- 

 ture, participates in the eternal reason, so that the must which 

 the lex acterna addresses to the rest of creation is ought to him. 

 Thus that part of the eternal law which man's reason reveals is 

 to be called natural law. 3 While this scheme made law a body of 

 enactments of the supreme law-giver of the universe, and so 

 properly to be called lex, it took from positive law its character 

 of enactment and made it a mere recognition of the lex naturalis, 

 which was above all human authority. Hence it prepared the 

 way for the more liberal notions of the humanist school of jurists 

 and for the return in the seventeenth century to the classical 

 conception of reasonableness as the source of authority in law. 

 No conception has been more fruitful in legal history than this 

 notion that the foundation of law is in ideal or natural justice. 4 



1 Gierke, Political Theories of the Middle Age, 73, 74. 



-Siiuima Theologiae, 1, 2, q. .93, art. 1. 



9 Summa Theologiae, 1, 2, q. 91, art. 2. 



4 The warfare which the historical and analytical schools have waged 

 against the abstract systems which sometimes spring Minerva-like from the 

 heads of metaphysical jurists has caused many to forget this. It is curious 

 that a masterly sketch of legal evolution, such as Kohler's Rcchisphil sophie 

 und Universal/ echtsgeschi elite ( Holtzendorff , Encyklopadie der Rechtsuissen- 

 schaft, 6 ed., i-69), should pass over it so lightly. But see Grueber, Einfuh- 

 rung in die Rechtzvissenschaft, sec. 2 (Birkmeyer, Encyklopadie der Rechts- 

 wissenschaft, 15). 



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