io Roscoe Pound 



The influence of this theological-philosophical system of juris- 

 prudence outlined by Thomas Aquinas may be seen in the for- 

 mulas of practical lawyers down to the Reformation. To give 

 but two examples: Fortescue (between 1453 and 1471), after 

 defining ins in the words of the Digest, defines lex, used in the 

 sense of positive law, as "a holy sanction (sancio sancta) com- 

 manding what is right and forbidding the contrary," 1 — that is, 

 a sanction added by the state to a rule of natural law. As this 

 natural law, however, was discoverable by reason, the obvious 

 effect of the doctrine was to require all rules of positive law to 

 be tested by reason, and accordingly we find in Doctor and Stu- 

 dent (before 1523) the significant statement that the law of 

 nature "is called by them that be learned in the law of England 

 the laiv of reason/ 32 



A new period begins with the great work of Grotius (1625). 

 Although, perhaps, he did no more than give currency to what 

 the expositors of natural law had worked out already, 3 the result 

 of his book was to emancipate jurisprudence from theology. 4 

 Soon afterward Conring (1643) overthrew the notion of the 

 statutory authority of the Corpus Juris. 5 Thus natural law 

 ceased to be lex naturalis, the enactments of a supernatural legis- 

 lator, and became once more ius natnrale, the dictates of reason 

 in view of the exigencies of human constitution and of human 

 society. And positive law became the application of reason to 

 the civil relations of men, whereof, on the Continent, the Corpus 

 Juris was the chief est exponent merely because of its inherent 

 reasonableness. 6 Thus a movement arose comparable to the clas- 



1 Ds Laud? bus Legum Avgliae, cap. 3. This goes back to Cicero (sanctio 

 iusta, iubens honesta et prohibens contraria). But the choice of this formula 

 and the pious turn given it are remarkable. Compare Bracton, I, 3. 



2 Doctor and Student. Introduction. 



3 Hinrichs, Geschichte der Rechts und Staatsprincipien seit der Reforma- 

 tion, I, 59. 



4 Lioy, Philosophy of Right (Hastie's Tr.), I, 113. 



3 De Online Juris Germanici. See Brunner, Gundzuge der Deutschen 

 Rechtsgeschichte, sec. 64; Stintzing, Geschichte der Deutschen Rechtswissen- 

 schaft, II, 3. 



6 " The grand destinies of Rome are not yet accomplished; she reigns 

 throughout the world by her reason, after having ceased to reign by her au- 

 thority." D'Aguesseau (1658-1751), quoted by Kent, Commentaries, I, 516. 



258 



