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The History of Natural Law

The origins of natural law lie in the thought of the philosophers
and jurists of the ancient world. They were convinced that there
were rules for human behavior based upon objective, eternal
norms. They conceived of these norms as having been
established by nature and reason. The Romans were the first to
coin the term “natural law”(ius naturale). Medieval jurists and
theologians found the idea of natural law attractive. It was
congruent with their conception of the universe and with their
notions of human psychology. Expanding upon and developing
further the definitions of natural law they found in the ancient
sources, medieval jurists and theologians placed natural law at
the pinnacle of a hierarchy of laws that regulated and guided
human behavior. Their paradigm held sway in western
jurisprudence until the nineteenth century.
The Roman orator Cicero († 43 B.C.) summed up an important
strand of ancient thought when he argued in his De republica
3.22 that “true law was right reason that was congruent with
nature.” He concluded that “there was one eternal, immutable,
and unchangeable law” and that God had established it as the
Emperor and Master of all humankind. Later Christian
thinkers incorporated Cicero’s conception of law into their own
thought. The ancient Roman jurists dealt with two types of law
that transcended the law of the Roman Empire, the law of
peoples (or nations) (Ius gentium) and natural law (Ius
naturale). In the second century A.D. the Roman jurist Gaius
was the first to define the Ius gentium as having been
established by the natural reason of all humankind (Institutes
1.1). Later jurists did not always distinguish carefully between
natural law and the Ius gentium. This conceptual ambiguity
would long remain a problem of jurisprudential and theological
thought. In the third century the jurist Ulpian defined natural
law as what “nature teaches all animals,” including human

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beings. He distinguished natural law from the Ius gentium that

was common only to human beings and established by their
customary usages. He cited marriage and the procreation of
children as examples of natural law. Ulpian’s definition was
later included in the Emperor Justinian’s comprehensive
codification (ca. 533-536) of Roman law (Digest 1.1.3).
Justinian’s codification also included a introductory textbook
for the study of law called the Institutes. The definition of
natural law in the Institutes moved the source of natural law
from the behavior of creatures to God: “Natural laws are
established by divine providence and always remain firm and
immutable (Institutes 1.2.11).” A little later the authors of the
Institutes asserted that the Ius gentium is identical with natural
law (Institutes 2.1.11). In every European law school from the
eleventh to the seventeenth century, professors and students
studied and pondered Ulpian’s and the Institute’s definitions —
and their contradictions.
Although some late antique Christian theologians mentioned
natural law in their writings, they did so infrequently. Natural
law never became an important concept in the theological
thought of the early church fathers. When Isidore of Seville
composed (ca. 620) his encyclopedic Etymologies (5.4) he
combined the two traditions that had circulated in the ancient
world. He defined natural law as being the law common to all
nations that was established by the instigation (instinctus) of
nature, not by human legislation. Examples of natural law were
marriage and the procreation of children, “one liberty of all
human beings (una libertas omnium),” and the acquisition of
property taken from the heavens, earth, and sea.
From Isidore to the jurist Gratian in the twelfth century there
was virtually no discussion of natural law as a norm for human
society. As part of his plan to bring order to the chaotic state of
church law, Gratian(ca. 1140) compiled a legal collection of
ecclesiastical norms. At the beginning of his canonical

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collection, called the Decretum, he discussed the various types

of laws that regulated and guided the behavior of human
beings. In the opening sentence of his collection Gratian
brought natural law to the forefront of all future discussions
about the structure of all human law: “The human race is ruled
by two things, namely, natural law and customary usages.
Natural law is what is contained in the law (lex sic) and
Gospels.” Gratian concluded that natural law dictated that
“Each person is commanded to do to others what he wants done
to himself,” connecting natural law with the biblical injunction
to do unto others what you would have them do unto you
(Matthew 7.12). By defining natural law as the duty to treat
other human beings with care and dignity, Gratian stimulated
jurists to reflect upon a central values of natural law: the
rendering of justice and the administering of equity in the legal
system. To define the contents of natural law he placed Isidore’s
definition of natural law on the first page of his Decretum (D.1
c.7). Together with the texts of Roman law in Justinian’s
compilation, Gratian’s Decretum became one of the standard
introductory texts for the study of law (the Ius commune) in
European law schools, and Isidore’s definition became one of
the most important starting points for all medieval discussions
of natural law.
Medieval jurists and theologians found several natural laws in
their sources. During the twelfth century when the jurists
subjected these definitions of natural law to careful analysis,
they brought out these contradictions. They pointed out that
natural law could be the natural instinctive behavior of all
God’s creatures. It could be the rules and norms of behavior
that governed primitive human beings before human societies
established their own particular laws. It could be the common
sense of justice and equity that one could find in all human
laws. They also argued that human reason might be a source of
knowledge about the norms of natural law. It could be divine

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law. It could be the Ius gentium.

The jurists discussed all these possible types of natural law and
did not, at first, give primacy of place to one. They distinguished
between a natural law that was established by nature and one
that was established by the natural order of the world. If nature
can be said to create natural law, some jurists concluded, then
“nature is God” (natura, id est Deus). They did not embrace a
juristic pantheism but simply acknowledged that the word
“nature” in this sense could be used for the creator. The jurists
who commented on Gratian’s Decretum developed the most
elaborate analysis of natural law. The most important of the
twelfth-century jurists, Huguccio (ca. 1190), located the origin
of natural law in human beings. Natural law is reason, and that
reason is a natural power of the soul (naturalis vis animi) that
permits them to distinguish good from evil. This reason is called
“law”(ius) because it commands and “law” (lex) because it
binds. Huguccio also summed up twelfth-century juristic
opinion on the force of natural law in human affairs. Natural
law, he observed, consisted of three levels of authority:
commands, prohibitions, and indications or declarations
(demonstrationes). An example of a command was the precept
to “love your Lord God.” A prohibition of natural law may be
taken from the Ten Commandments, “Thou shalt not steal.”
The third level of natural law leads human beings to choose
what is licit and good over what is bad and evil. For example, in
Gratian’s excerpt from Isidore of Seville liberty is a state that
should be granted to all human beings. Huggucio noted,
however, that all men are not free. Natural law leads men to
liberty but does not command it. Huguccio explained that
although liberty has its roots in natural law, God introduced
slavery into the world because of human sins. Although
medieval thinkers had to confront Isidore’s elegant and stirring
maxim that expressed the basic norm of human freedom (una
libertas omnium) constantly, they could not overturn the

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institution of slavery that was endemic in their world or

undermine the rights of slave owners.
Medieval ideas about natural law were transmitted to the
modern world primarily through the vehicle of theology,
especially the theology of St. Thomas Aquinas (ca. 1225-1274).
Thomas treated natural law comprehensively in his Summa
theologica in Book One, part two, questions 91 and 94. His
conclusions drew heavily on the thought of the jurists. Natural
law has its origins in human nature. This nature is the same in
all human beings. Reason is the foundation upon which all
natural law is based. The primary goal of natural law is to
direct human beings toward the good. Men follow the dictates
of natural law in three ways: following the order that exists in
nature, obeying what nature has taught all animals, and, finally,
pursuing the inclinations and tendencies of human reason.
When Thomas asked the question “Can natural law be
changed? (Summa theologica I-II q.94 a.5), he augmented the
thought of the jurists when he explained why some elements of
natural law are immutable and some are not. Natural law
consisted of first principles that cannot be changed and
secondary principles that can be. Thomas explained how
slavery could be justified slavery by noting that it did not arise
from nature but from human reason for the benefit of human
life.
Natural law became an integral part of medieval legal and
theological thought. In private law the jurists used natural law
in creative ways to justify and regulate particular legal
institutions. Twelfth- and thirteenth-century jurists of the Ius
commune argued that property rights were protected by
natural law because when God forbade stealing, he sanctioned
private property. Since natural law protected private property,
they concluded that even the emperor, king or prince could not
deprive a person of their property except for just and necessary
reasons. By the end of the twelfth century, the jurists included

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contractual rights under the provisions of natural law.

Consequently, they even concluded that the emperor was bound
by the contracts that he might make with his subjects. The
prince was not exempt from the precepts of natural law. In the
fourteenth century the jurists argued that the norms that
governed judicial procedure were also derived from natural
law. Consequently every person had an absolute right to be
summoned, present witnesses, and have a public trial. In an
ingenious use of the story of God’s condemnation of Adam and
Eve in Genesis 3.9-12, the jurists decided that God had
established the norms of procedure when he conducted the first
trial in the Garden of Eden. By the end of the Middle Ages the
Spanish theologian and jurist Francisco de Vitoria (1492-1546)
put forward the remarkable argument that the right of the
majority of people to render their consent in political matters
was also a norm of natural law.
In this short and far from complete catalogue of rights that
theologians and jurists grounded in the norms of natural law,
an important point must be emphasized. In some cases, like the
norms of procedure, they found justifications for their
arguments in sacred scripture. In others, like the inviolability of
contracts, they could discover no precedents in sacred scripture.
Instead they relied on norms that had evolved in the Ius
commune. These norms conformed to reason, reason so
compelling that they expressed eternal truths, Huguccio’s and
Aquinas’ “the reason of natural law.”
By the end of the Middle Ages jurists and theologians had
reached general agreement about the structure and content of
natural law. Gradually these ideas about natural law migrated
from the Ius commune into the customary, local legal systems of
Europe, and jurists incorporated natural law into their
discussions of local customary law. The thirteenth-century
commentary on English law that circulated under the name of
“Bracton” borrowed word for word the definitions of natural

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law from the jurists of the Ius commune. Bracton’s discussion

of natural law did not bear fruit in English legal thought until
the fifteenth and sixteenth century, but the seeds of a natural
law tradition in the common law were planted early.
The Iberian legal compilation, Las siete partitas, published
during the reign of Alfonso X the Wise (1221-1284), devoted the
second title of book one to natural law and the Ius gentium.
This summary of natural law and its handmaiden, the Ius
gentium, also reflected the thought of the jurists. Natural law
governs all men and animals. Its precepts regulate the
institutions of marriage and the raising of children. The Ius
gentium is law that is common for all men but not animals. Its
two fundamental principles are the rights of property and
self-defense. These two laws, the compilers stated, inform all the
ordinances that deal with those issues in this law book. Gregorio
López de Tovar (ca. 1496-1560) wrote an extensive commentary
on Las siete partidas in the sixteenth century. He emphasized
that Aquinas’ natural reason was fundamental for knowing and
understanding the contents of natural law. “Natural reason
‘inclines’ human beings to marry.” Marriage is, therefore,
founded on natural law. Even the natives in the new world have
a true marriage because natural reason instigates them to form
this bond. By the end of the Middle Ages the support,
education, and inheritance of children were generally
considered to be precepts of natural law, and López made the
point that a child’s right of inheritance could not be taken away
by contract or custom. Spanish thinkers in the sixteenth and
seventeenth centuries made significant contributions to the
development of natural law thought.
Medieval natural law provided the basis of all discussions of
natural law in early modern juristic and philosophical thought.
When Thomas Jefferson wrote in the Declaration of
Independence that “We hold these truths to be self-evident, that
all men are created equal, that they are endowed by their

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Creator with certain unalienable rights, that among these are

life, liberty, and the pursuit of happiness,” the ultimate origins
of his ideas lay in medieval juristic and theological thought.

Bibliography

Ennio Cortese, La norma giuridica: Spunti teorici nel diritto comune classico (2 Vols.
1962) 1.1-141. Brian Tierney, “Natura id est Deus: A Case of Juristic Pantheism?”
Journal of the History of Ideas 24 (1963) 307-322, reprinted in Church Law and
Constitutional Thought in the Middle Ages (1979). Rudolf Weigand, Die
Naturrechtslehre der Legisten und Dekretisten von Irnerius bis Accursius und von
Gratian bis Johannes Teutonicus (1967). Daniel John O'Connor, Aquinas and
Natural Law (1968 [1967]). Francis Oakley, Natural law, Conciliarism and Consent
in the late Middle Ages: Studies in Ecclesiastical and Intellectual History (1984).
Anthony J. Lisska, Aquinas's Theory of Natural Law: An Analytic Reconstruction
(1996). Robert A. Greene, “Instinct of Nature: Natural Law, Synderesis, and the
Moral Sense,” Journal of the History of Ideas 58 (1997) 173-198. Brian Tierney, The
Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law
1150-1625 (1997).

Kenneth Pennington
The Catholic University of America
Washington, D.C.

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