Law

LAW. - This noun, which may be called the common patrimony of the languages of civilized peoples, derives etymologically in a direct line from the Latin dirigere, but is traced back by a longer route to Sanskrit roots (rta, rgu) meaning direction, physical (geometric) and moral straightness, rectitude, order. Whatever may be the case with the Sanskrit origin, it is observed that both the Latin etymology and modern usage point clearly to the complex idea of rectitude and order.

It is further to be observed that in the Neo-Latin languages the noun "law" has replaced the original one of ius, of which almost only the adjectival form ("juridical") has been preserved, and around which the ancients had accumulated a rich flowering of very disparate and often also quite unreliable etymological derivations (from iustitia, from the verbs iubere or iurare, and then also from the very name of Jupiter, to which the verb iusare was sometimes joined). Setting aside the problem of etymological truth, which has remained difficult even for the most advanced philological science, it is appropriate to limit oneself to observing that those who indicated these derivations saw in law (ius) close ties with justice and with religion, interwoven with elements of command and of mutual help among men. Making a comparison between the old Latin name and the modern one, it is observed that among the ancients greater prominence was given to the imperative and religious character of law, whereas today the character of rectitude with an ethical coloring has acquired clearer evidence. The religious connection of the ius of the Latins is also attested by another name, fas, which always had a marked sacred flavor, and was always accompanied by ius, now as its synonym, now as its parallel or analogue.

I. GENERAL NOTIONS.

I. THE CONCEPT

The frequent use that jurists and non-jurists make of the name has ended up accumulating around it such a variety and imprecision of meanings that it becomes difficult to bring order and clarity into this tangled skein. Today the most frequent senses of the word "law" are two: "law" and "faculty." The first is called objective; the second subjective. In the objective sense, then, law is law or a body of laws. And thus its imperative nature is indicated. But not every law is law: to be such it must possess certain characteristics, which precisely constitute its juridical character. Not all authors agree in the enumeration of these characteristics. The characteristic of statehood, required by many positivists, is certainly to be excluded, as if only a law issued by the State could be juridical; the characteristic of political character also seems to be rejected, insofar as it is claimed that only political society (that is, as is sometimes explained, so-called perfect society) is the creator and bearer of law; one may instead accept the opinion, today quite widespread, that requires the characteristic of social character, with which it is affirmed that, in order to be juridical, the law must be social, that is, it must regulate interhuman relations, whereby all norms or laws that regulate human life in its individual zones and aspects are excluded from the field of law, but the laws of any society are included in it, even if not state and not perfect. The social character demands as a necessary consequence, or as its presuppositions, two other characteristics, which are the exteriority and the alterity of the matter that is the object of the juridical law; that is, it demands that what is regulated by law be an external human act and have importance or value for others, that is, for human subjects other than the agent (or the one obliged to act). Akin to alterity is bilaterality, by which those others, who have an interest in the observance of the law, can demand its execution. It should be noted that these others are not necessarily determinate individuals, but can also be society, taken as a whole. Lastly, the characteristic of coercibility should be remembered, by virtue of which the execution of the juridical law is made possible, even when the obligated subject refuses to fulfill it.

In the subjective sense, law is faculty. The conception of law as physical faculty is certainly to be rejected; a savage doctrine, which abandons the juridical world to the dark play of brute forces and ends up annihilating every human value. Subjective law must instead be conceived as a moral faculty, whose object has the characteristics of juridical character referred to above. The ethical exigency, which is thus made explicit, has three aspects: the first concerns the object of the faculty itself, which must be in harmony with the moral laws; the second touches the subject, who is obliged not to use his faculty except in the ways permitted by ethical norms; the third is directed to others, and imposes on them the duty to bow before the faculty of the subject, for its moral weight alone, even if in the concrete case the bearer of the law does not have at his disposal sufficient physical means to compel them to respect it.

To the two meanings (law and faculty) that have been said to be most frequent today, two others must be added, a little less usual, but no less important.

There is thus a third meaning, which was customary among the ancient Scholastics, including St. Thomas, who saw in law the just thing, the thing owed to others, that is, what today represents the object of the law and of the juridical faculty. Thus, through the appeal to justice, the intimate and indissoluble bond of law with morality was affirmed; and by fixing the thing as the first juridical element, it was immediately made evident that the world of law cannot be given over either to the arbitrariness of the legislator or to the unquenchable thirst of one who claims faculties, but must be modeled on objective reality, which transcends and dominates both the power of those on high and the caprice of those below.

A fourth meaning tends today to establish itself, and it is that of order, or rather of ordering, by which law comes to be conceived in a more complex way than in the three acceptations already explained. This could be called the integral concept, because it embraces the law, the faculty, the just thing; it synthesizes them in a system of relations that binds together the subject of the faculty and that of the obligation, the man who acts and the things around which his action unfolds, the individual and the social body in which the life of law is realized.

Wishing to define law from this last point of view, one will say that it is the coercible ordering of human actions in matters of justice. The emphasis on coercibility seems sufficient to recall all the other characteristics of law listed above. The mention of justice serves to define its field of action.

II. LAW AND MORALITY

Much has been written and discussed (especially after Kant) on the relations between these two orders. From what precedes it already appears that law has necessary ties with morality. These are evident to anyone who reflects that morality is the universal form or norm of human activity; and therefore every norm that claims to regulate this same activity comes to have with morality a necessary commonality of matter, and hence, through this, indestructible contacts. In the juridical world the situation is further aggravated by the fact that both morality and law are imperative; indeed law is also coercive. Which means that if the two orders were to find themselves in disagreement about the object of their commands, the subject would find himself in a tragic situation, without any possible way out. Therefore every doctrine that, like the extreme forms of positivism, digs unbridgeable abysses between the two orders and preaches their mutual independence is theoretically false and practically harmful.

But neither must they be confused. There exist between them indelible differences, both of content and of form.

As to content they differ: a) in the breadth of their matter: morality governs the whole of human life, in its four provinces, which bear the classic names of prudence, justice, fortitude, temperance; whereas law is limited to the field of justice. It must however be remembered that this field is not as narrow and as closed as it might seem at first sight, because, while not wishing to complicate things too much with the reminder of the formal distinction of the four provinces, it is easy to perceive that, in particular historical situations, many acts that we are accustomed to attribute properly to the other virtues can take on the characters of justice, and thus become matter suited to the juridical order. The name of justice, which enters into the definition of law, must therefore be understood in that broad sense which it has in the expression "social justice"; b) in the aspect of the matter that they undertake to regulate: morality and law both look to the human act, but from a different point of view: morality governs and judges it by looking at it from the point of origin, which is in the conscience of the acting subject; law, on the other hand, governs and judges it by fixing it at its point of arrival or external reference (ad alterum). This shift of viewpoint imposes on law particular criteria of evaluation: an act can be perfect in its exterior guise and in social estimation, although it is perhaps vitiated in its intimate structure by the impurity of the subject, who performs it with hypocrisy; hence the different judgment that can be pronounced on the same act in the tribunal of the ethical conscience and in that of the juridical order.

They also differ as to form. It would be false to place the formal difference in the intrinsic force of the command, as though law contained true imperatives and morality gave only counsels and suggestions, always left to the subject's discretion. Morality too is imperative; indeed, its commands often have, for the ethical conscience, greater force than juridical ones. Nor would it be exact to say that morality is the doctrine or the field of duty, while law is the realm of faculties. This way of seeing supposes the subjective definition of law to be sufficient, whereas it indicates only one of its elements. It must be recognized, however, that morality and law differ: a) in the extrinsic force of their commands, inasmuch as the juridical order is coercible, as has been said, that is, it also resorts to physical constraint to obtain what is due, whereas morality shrinks from these methods, which would be useless to it. The root of this divergence must be sought in what has been said about the different point of view regarding matter. Morality is oriented toward the interior of the subject, and therefore it would serve no purpose to constrain man: no one becomes good by force! Law, on the other hand, being oriented toward the exterior and toward others, can derive profit even from an act extorted by main force. Hence St. Thomas said that law is the just thing, considered however in its objective value, which abstracts from the internal dispositions of the acting subject: «etiam non considerato qualiter ab agente fiat» (Sum. Theol., 2ᵃ-2ᵃᵇ, q. 57, a. 1); b) in the formulation of norms: the moral norm has no need to be enunciated with that apparatus of material exactness which is instead one of the constant aspirations of the juridical norm; hence law always has, in comparison with morality, a greater heaviness of movement, a necessary cult of the formula and the letter, which often stifles the spirit; a constant need for pre-established schemes, which fragment between universal principles and concrete facts, and make judgment easier, but also less exact, less adherent to reality, modeled on artificial types; hence it is truly recognized that morality has the merit of concreteness and law the drawback of a necessary abstractness.

III. LAW AND RELIGION

The same affinities and divergences that exist between law and morality also exist between law and religion, insofar as the latter is a moral virtue. However, religion is also a social fact, and in its name particular societies are formed, which will give themselves particular juridical orders. It remains to ask whether the subject matter of such legislation is only that common to every society, or whether it can also be provided by truly religious acts. The difficulty arises from the requirement of the soul's full adherence to religious practices, without which the external act loses its value. It must be remembered, however, that religion has acts which, within certain limits, retain a social value for others, even if the good interior disposition of the one who performs them is lacking. Such is, for example, the administration of a Sacrament, which, for the one who receives it, retains all its value even if it is conferred by an unworthy minister, who resolves upon the rite solely under the threat of canonical sanctions. Thus the possibility of a religious juridical order is preserved. Nevertheless, since even the acts just mentioned, although they have value ex opere operato, require a minimum of will in the one performing them, the legislation of the religious society will necessarily impose upon itself limits, unknown to civil society, in the exercise of coercion.

Giuseppe Graneris

IV. PARTITIONS OF LAW

Since the Roman jurists it has been traditional to distinguish all objective law into two great branches: public law and private law (cf. D. 1, 1, 1, 3). This distinction has been founded on criteria that are not always uniform from country to country and from writer to writer; but, even after the critical elaborations to which it has been subjected, the criterion already substantially indicated by the Roman jurists remains fundamental (though no longer exclusive): namely, that public law consists of those norms whose direct object and end is the organization and activity of the State and of the other lesser political bodies, and therefore also the relations between private individuals and these organizations; whereas private law is the complex of norms which, having as their end the direct protection of the interest of individuals (and only indirectly and mediately the interest of society), regulate the relations of individuals among themselves.

For some time the question has been raised whether in the order of the Church there exists or not a distinction between public law and private law, analogous to that in use in the orders of States, or rather in the juridical science having such orders as its object.

The problem reduces in part to a theoretical question, all the more so since it is difficult to see what practical consequences the classification of a norm in one field rather than the other could have in the order of the Church, since in any case one cannot determine a body of principles valid for public law and not for private law, or vice versa.

But both the doctrinal principles and the positive norms of the CIC (cf. cann. 1586, 1618, 1619 § 2, 1655 § 2, 1923 § 1) lead one to hold that this distinction must be considered to exist in canon law as well (cf. P. Ciprotti, Lezioni di d. canonico, Padua 1943, pp. 64-67).

In a somewhat narrower sense the expression public law is used (since the last century) when one speaks of ecclesiastical public law, which is defined as the complex of norms (for the most part of divine law) concerning the constitution of the Church and the rights that belong to it as a perfect society having a supernatural end. It is customarily distinguished into internal ecclesiastical public law and external ecclesiastical public law: the first comprises the principles on the constitution and the rights of the Church as a perfect society considered in itself and in its relations with its subjects; the second, instead, the principles on the juridical position of the Church in its relations with other societies, especially with the State. Cf. A. Ottaviani, Institutiones iuris publici ecclesiastici, 3rd ed., I, Rome 1947, pp. 1-31.

In the law of the State it is further customary to subdivide both public law and private law into various other branches.

Public law is divided into: constitutional law, which comprises the norms that regulate the fundamental organization of the State, its supreme powers, and the supreme principles relating to the relations between the State and citizens; administrative law, which comprises the norms governing the action of the State in the exercise of its administrative or executive functions (a subdivision of it is so-called financial law); penal law; procedural law; international law (in contrast to which, all the other branches of public law are also customarily called internal public law; v. infra); ecclesiastical law (v. infra).

Private law is customarily divided into two branches (but the distinction is much debated in modern times): civil law, which comprises all the norms relating to juridical acts in general, to persons, to things and to real rights, to the family, to successions by reason of death, to non-commercial obligations; and commercial law, which regulates the juridical relations that arise in the exercise of commerce and some other that, by reason of its connection with commerce or for historical reasons, is included therein.

Pio Ciprotti

II. NATURAL AND DIVINE LAW.

The idea that positive law is not founded solely on the arbitrary will of the authorities that enact it, but on a natural law, dawned and imposed itself on human minds from the most remote ages, but it was placed in particular relief by Christian thought (for a fuller presentation of the Christian conception of natural law v. LEGGE NATURALE). Equally from the beginnings, the idea of the law of nature was often associated with that of divinity, as source and maker of nature itself in general, and more especially of human nature.

The belief in an absolute foundation of law manifests itself, implicitly or explicitly, in all religions. When critical thought awakens, especially in Greece, the possibility is conceived of an antithesis between the just "by nature" (φύσι) and the just "by law" (νάμα), by law being understood here as positive law; and the antithesis sometimes assumes an acute form, in the sense of denying outright the existence of the first term and admitting only the second: thus, for example, in Archelaus, disciple of Anaxagoras (5th century B.C.), and with greater dialectical developments in the sophists (5th-4th centuries B.C.), then in the skeptics, such as Pyrrho and Carneades, etc. But these very negations served as a stimulus for meditated reaffirmations, which came in a certain way to confirm the spontaneous manifestations of that first belief: such as, for example, the famous invocation of Sophocles' Antigone (442 B.C.), which against the unjust order of a tyrant appealed to the "unwritten and unshakeable laws of the gods" (454 ff.). To the sophistic arguments were opposed the doctrines of Socrates, Plato and Aristotle, in which the idea of a fundamental juridical truth, not subject to human arbitrary will but superior to it, stands out in harmony with the entire philosophical system respectively elaborated by them. In the Aristotelian system particular relief is given to the distinction between the natural just, which has everywhere equal force, and the positive or legal just, which is variously determined (Eth. Nicom., V, 7 [10], 1; cf. Rhet., I, 13, 2). According to the Stoics, justice is not a simple imposition (θέσις), but a dictate of right reason (ὁρθὸς λόγος), which corresponds to the supreme law of nature, and is uniformly inherent in the soul of every man.

Cicero drew inspiration from the theories of the Stoics, as well as from the Platonic and Aristotelian ones, and eloquently upheld the idea of natural law (especially against the skeptical objections of Carneades): "Est quidem vera lex recta ratio naturae congruens, diffusa in omnes, constans, sempiterna," etc. (De re publica, III, 22; cf. De legibus, I, 6, 12, 15, etc.). In general, the Roman jurists accepted the fundamental notions concerning law elaborated by Greek philosophy. These speculative concepts, and particularly those of the Stoic school (which, as is well known, also had distinguished representatives in Rome), met in a certain way with the practical experiences of the Romans themselves, who gave them numerous applications and concrete developments throughout the whole field of law (cf. on this P. Sokolowski, Die Philosophie im Privatrecht, Halle 1902-1907; P. Barth, Die Stoa, 2nd ed., Stuttgart 1908, p. 194 ff.). Thus the concept of naturalis ratio was concordantly admitted, that is, of a rationality that is not proper to the human intellect alone, but belongs to the order of nature in general: it serves as the basis of juridical institutions, and furthermore as a guide in their progressive development. The definitions that the Roman jurists gave of ius naturale are indeed somewhat varied (Paulus, frg. 11, Dig. I, 1: "Id, quod semper sequum ac bonum est, ius dicitur, ut est ius naturale"). Inst., I, 2, § 11: "Naturalia quidem iura, quae apud omnes gentes peraeque servantural, established by a certain divine providence, always remain firm and immutable." Ulpian, frg. 1, § 3, Dig. I, 1: "natural law is that which nature has taught all animals," etc.); but the divergences probably depend, more than on real contrasts, on the consideration of the different aspects of the same principle.

The advent of Christianity brought, in this matter too, a great renewal. Through it, a divine and eternal principle was recognized in the human personality, charitas was placed as the foundation of the entire moral and juridical order, and the lex naturae was conceived as an emanation of the divine will and wisdom. In this sense the treatises of St. Ambrose and St. Augustine are especially notable. But in the work of St. Thomas Christian thought found its most organic systematization. In it the lex aeterna is distinguished from the lex naturalis and from the lex humana. The first is the "ratio divinae sapientiae" that governs the world, knowable in its absoluteness only by God and by the blessed, whereas men can have only an imperfect cognition of it (Sum. Theol., 1-2ª, q. 91, 1 and 3, q. 93). The lex naturalis, on the other hand, is directly knowable by men through reason, being precisely a participation of the eternal law in the rational creature, according to its own capacity ("lex naturalis nihil aliud est quam participatio legis aeternae in rationali creatura"; "secundum proportionem capacitatis humanae naturae"; ibid., q. 91, 2 and 4, q. 94). The lex humana, finally, is an invention of man, by which, starting from the principles of the natural law, the human mind proceeds to its particular applications, "per modum conclusionum" or "per modum determinationis" (ibid., q. 91, 3; q. 93, a. 2). If the lex humana goes against its own end, which is the bonum commune, it must nevertheless be obeyed when this is necessary to avoid a greater harm ("propter vitandum scandalum vel turbationem"); not, however, if it is contrary to the divine precepts ("contra Dei mandatum"), since in that case, according to the saying of the Apostles (Act. 5, 29), "obedire oportet Deo magis quam hominibus" (ibid., q. 96, a. 4; cf. in the same sense the encyclicals Quod Apostolici muneris, of 28 Dec. 1878, and Diuturnum illud, of 29 June 1881). The law in its principle therefore has God himself as its author; and the norms emanating from the divinity, according to the ways in which they proceed from it, are distinguished into ius divinum naturale and ius divinum positivum (cf. CIC, can. 27; A. Van Hove, Pralegomena, II, Malines 1945, p. 19 ff.). In every case, the ius divinum predominates and prevails over the human.

It is worth noting that the Christian conception of natural law, while it had the Revelation as its constant basis, also drew profit from Greek philosophy and Roman jurisprudence; and this both in the period of the patristics and in that of the scholastics, thus giving rise to that tradition which was rightly called philosophia perennis, and which has demonstrated even in our own days its luxuriant vitality.

In the age of the Renaissance and in the following one, there did indeed manifest itself the tendency to treat the problem of natural law independently of theology. Already among the theologians themselves the question had been raised, with subtle disquisitions, of the possibility of a moral obligation under the condemned hypothesis of the non-existence of God. Thus Gregory of Rimini (d. 1358) had written: "Nam si per impossibile ratio divina sive Deus ipse non esset, aut ratio illa esset errans, adhuc si quis ageret contra rectam rationem angelicam vel humanam aut aliam aliquam si qua esset; peccaret" (Super secundo Sententiarum, D. XXXIV, q. 1, a. 2). The doctrines of this and of other authors were examined and discussed by F. Suarez in his great work De legibus ac Deo legislatore (1612), l. II, cap. 6, § 3. From that hypothesis, while declaring it inadmissible, Grotius drew advantage (De iure belli ac pacis, 1625, Proleg., § 11), who set about constructing his system of natural and international law on the basis of human reason alone. Adhering to concepts already elaborated by classical thought, and in particular to the Aristotelian principle of the sociability inherent in human nature, he defined the ius naturale: "dictatum rectae rationis, indicans actui alicui, ex eius convenientia aut disconvenientia cum ipsa natura rationali ac sociali, inesse moralem turpitudinem, aut necessitatem moralem" (op. cit., l. I, cap. 1, § 10, 1; cf. § 12, 1). Natural law, he adds, is immutable, because not even God could bring it about that "quod intrinseca ratione malum est, malum non sit" (ibid., § 10, 5). As a consequence of the aforementioned principle, Grotius places particular emphasis on the maxim of the inviolability of pacts ("cum iuris naturae sit stare pactis", op. cit., Proleg., § 15): from which maxim would derive the "iura civilis," that is, the validity of positive law in general, and in particular the legitimacy of existing governments, insofar as they are founded on a presumed initial pact or consent.

Grotius's work, which quickly achieved very great fame, was followed by numerous others which, despite sometimes quite considerable divergences, share certain characteristics with it; so that one may not unjustly speak of a "school of natural law" in the strict sense, which flourished precisely in the 17th century and throughout the following one. The principal characteristic of this school is an abstract rationalism, not critically examined and therefore often fallacious. Even with the commendable intention of seeking the foundation of law in human nature, the authors belonging to this school often present as universal truths the simple aspirations of their individual conscience, suggested by contingent political circumstances. Methodological uncertainty also manifests itself in the tendency to give the appearance of historical or pseudohistorical narrative to philosophical deduction, confusing logical priority with chronological priority, and representing natural law as the positive law of a supposed most remote age. This appears especially in the conception of a status naturae, which would have preceded the state of society; the passage from the one to the other would have occurred through a contract, which some of the authors of this school conceive as a single act, while others conceive it as divided into two successive acts (pactum unionis and pactum subjectionis). For the characteristics proper to the various doctrines, it is necessary to refer to the individual treatments (v. CONTRATTUALISMO). Here only some of the most significant theories after that of Grotius are mentioned. According to Th. Hobbes (De cive, 1642; Leviathan, 1651), "homo ad societatem non natura, sed disciplina aptus factus est", and the natural state of men is a war of all against all, each having by nature a ius in omnia. From mutual fear, that is, from the need for peace, the State originates, by virtue of a contract through which men, renouncing entirely the primitive natural law, subject themselves to an absolute power. Not very different are the doctrines of B. Spinoza (Tractatus theologico-politicus, 1670; Tractatus politicus, 1677), for whom also natural law extends as far as the physical power of each; the State arises when men agree to live "ex solo rationis dictamine". The conception of S. Pufendorf (De iure naturae et gentium, 1672) approaches instead that of Grotius: the fundamental law of nature is, in his view, that which imposes on every man the duty to cultivate and preserve toward others a peaceful sociability ("pacifica socialitas"), conformable to the nature and end of the human race (op. cit., l. II, cap. 3, § 15). G. Locke (Two treatises of government, 1690) maintains that the "state of nature" is not (as other natural-law theorists had understood) a condition of pre-social life, and still less of war among individuals, but rather a state of coexistence, in which men already possess certain rights (of liberty, of equality, of work, of property). But these natural rights must be guaranteed, and this happens insofar as a group of men agrees to constitute a political society, that is, a State, which has precisely as its end, and therefore also as the limit of its power, the protection of those same rights. C. Thomasius (Institutiones iurisprudentiae divinae, 1688; Fundamenta iuris naturae et gentium, 1705) continues the preceding tradition, with particular reference to the doctrines of Grotius and Pufendorf. He distinguishes a "lex divina naturalis" and a "positiva"; natural law "cognoscitur ex ratiocinatione animi tranquilli", whereas positive law "requirit revelationem et publicationem". To the same tradition, with ample and systematic developments, inspired in part by Leibnizian philosophy, C. Wolff also adhered

(Ius naturae methodo scientifica pertractatum, 1740-48). More than to the formal elaboration of juridical concepts, J. J. Rousseau (Discours sur l'origine et les fondements de l'inégalité parmi les hommes, 1753; Du contrat social, 1762) turned to the problem of the intrinsic justice of the State, maintaining principles analogous to those of Locke, but with originality of views and new dialectical vigor. According to Rousseau, the state of nature, supposing it ever existed, must be conceived as the reign of liberty and equality among men; and since these goods have in fact been lost, it is necessary to restore them as far as possible, organizing the State in such a way that it is truly the synthesis of the equal liberty of all: that is, in such a way that those natural rights reappear in it as civil rights.

Among the thinkers who, without belonging to the school of natural law in the strict sense, expounded in the same era important ideas on this subject, Leibniz and Vico are especially to be mentioned. The former (Nova methodus discendae docendaeque Iurisprudentiae, 1667; Dissertatio I, preface to the Codex iuris gentium diplomatici, 1693, etc.) in a certain way traces law back to theology, distinguishing jurisprudence into "divina, humana, civilis", with regard to the bond of subordination of man with respect to God, then with respect to the human race, and finally to the State. Correspondingly, natural law would comprise, according to Leibniz, three degrees: pietas, aequitas and ius strictum. Vico (De universi iuris uno principio et fine uno, 1720; Principi di una scienza nuova intorno alla comune natura delle nazioni, 1725) affirms that natural law "aeterno vero constat", and has its principle in God; but, if the true is an essential element of law, there is in it also another element, the certain; the first constitutes the "ratio legis", the second represents its authority. Vico thus wishes in a certain way to reconcile natural law with positive law, opening the way to that synthetic vision of history which is the characteristic motif of his Scienza nuova. In this he distinguishes three kinds of natural law: the first divine, the second heroic, the third human; and he also traces other distinctions, according to various criteria, which do not, however, destroy the unity of his conception of a law both ideal and historical. A conception undoubtedly profound, but in part obscure and not free from difficulties, as appears from the different interpretations that have been and still are given of it in our own day.

The natural-law school, after Rousseau, had a further development and a partial renewal through the work of E. Kant, who, while accepting not a few of the doctrines of that school, introduced notable corrections into it, eliminating above all the equivocation (in truth already in part corrected by Locke and Rousseau) deriving from the ambiguity of some of its formulas. For Kant (Principi metafisici della dottrina del diritto, 1797), natural law is founded exclusively on a priori principles, that is, it has a purely ethical and deontological value, independent of experience. Every man, as such, has an innate right to liberty. The school of natural law (Naturrecht) thus asserts itself as the school of rational law (Vernunftrecht), and the two denominations are used, from this point on, almost as synonyms; it being necessary, however, to note that even the second denomination, in a less rigorous sense, had sometimes already been used in the preceding period. Kant's doctrine was followed, with greater or lesser adherence, by those of numerous other authors, among whom Fichte has special importance; one may also recall, for example, the works of Zeiller, Rotteck, Baroli, Tolomei, etc.

A strong reaction against the theories of natural law in general began to manifest itself from the beginning of the 19th century, both because those theories were blamed for the excesses of the French Revolution, which had announced itself with a natural-law program, and, above all, because of the preference generally accorded, even by jurists, to historical or positive studies as compared with purely speculative inquiries. It is true that historicism itself sometimes assumed an idealistic aspect (it suffices to mention Hegel's system, which identifies the rational and the real, and declares the relation between natural and positive law to be analogous to that between the Institutes and the Pandects). But the opposition to natural law became for many a kind of dogma, under the influence of Comtean positivism, of evolutionism and of relativism in their various forms. It is noteworthy, however, that, while the new theory of evolution was understood by most as incompatible with the idea of an absolute natural law, its foremost author, Spencer, explicitly admitted, alongside a relative ethics, an absolute ethics, and became an upholder of the natural rights of the individual. It may further be recalled that the principal representative of Italian positivism, R. Ardigò, admitted in his system a certain "natural law," but only in the sense of a psychological fact, which would prepare the positive law of the future.

None of the numerous "deniers" of natural law (among whom one may cite, for example, Bergbohm and Vanni) ever gave, however, a demonstration of that assumption, according to which law should be studied exclusively as a positive phenomenon, and not also as an eternal idea. That this exclusive thesis rests upon a mere prejudice was clearly demonstrated by various recent students of the philosophy of law.

The idea of natural law thus continued to be validly maintained and defended, albeit in different ways, even in the most recent age, both by the followers of scholastic philosophy and by others who, starting from a critical analysis of knowledge, arrived at results substantially in conformity with those of the philosophia perennis.

III. CANON LAW.

I. NOTION

The body of juridical norms established, directly or indirectly, by the Church through its organs, to regulate matters within its competence, is called canon law.

It has been said "directly or indirectly," in order to include both the norms formulated directly by the organs of the Church and those which, although already formulated otherwise, are approved by the aforesaid organs and made to prevail as norms emanating from the Church: this second category of norms consists especially of customary norms (v. CONSUETUDINE) and of norms emanating from the State (v. CANONIZZAZIONE DELLE LEGGI); and in a certain sense those of divine law can also be included in it.

The limitation "to regulate matters within its competence" has been added, because sometimes, especially in past epochs, the Church found itself in the necessity of issuing norms in matters within the competence of the civil authority, in cases of the latter's deficiency: these, issued by the Church for the attainment of ends extraneous to it, and by virtue of a power deriving from situations of fact (devolutive power), do not form part of canon law. Likewise, those norms do not form part of it which are issued by organs of the Church, not as such, but insofar as they are at the same time organs of a State or of another lay organization (Papal State, Vatican City State, fief, etc.).

The name of canon law (ius canonicum) derives from the fact that the juridical norms, or, as it is also customary to say, the disciplinary decisions (as opposed to doctrinal ones) issued by the most ancient ecumenical councils, which were among the most important sources of canon law, were called canons (κακόνες), as opposed to the laws (νόμοι) of the emperors, which were instead the most important sources of the law of the State.

Not always, however, was this the only name by which the juridical order of the Church was designated. The most common among the other denominations used is that of ius ecclesiasticum, which is found, in this sense, even today in the CIC, sometimes however to indicate only a part of canon law, and precisely human law as opposed to divine law (cf. cann. 27 § 1, 727 § 1, 1043, 1133 § 2, 1139 § 1, 1513 § 1, 1926, 2364). Less common were other denominations, which today are almost out of use, or have other meanings: for example, ius sacrum, ius pontificium, ius divinum, ius decretalium.

Canon law is one of the means (though not the only nor the principal one) that the Church uses for the attainment of its supernatural end, which is the salvation of souls or the eternal happiness of men. And therefore the object of canon law will be to determine, by means of obligatory precepts, the conduct of men in relation to the aforesaid end, that is, to regulate the activity of men in the best way for the attainment of that end. It therefore has its foundation in the power of jurisdiction in the external forum, which by divine will belongs to the Church (v. CHIESA; FÓRO; GIURISDIZIONE; POTESTÀ DELLA CHIESA).

II. CHARACTERISTICS

The essential characteristics of canon law are the same as those of law issued by the State, namely, besides its social character (its author being the Church), imperativeness or obligatoriness, alterity or intersubjectivity (which distinguishes it from moral theology), and enforceability.

How these characteristics (which some have wrongly denied to canon law) are reconciled with the Church's otherworldly end can easily be understood if one considers that obstacles to the salvation of the soul may come not only from the souls to be saved themselves, but also (though only as indirect and not insurmountable obstacles) from other causes: that is, causes that either influence the will of each person more or less intensely, inducing him to behave differently from what would be most useful for the salvation of his soul, or prevent him from carrying out the will to behave in this more useful way.

Now when the Church, in order to try to remove such obstacles as far as possible, forbids or commands certain behaviors that could hinder or make difficult for others the attainment of the ultimate end, or respectively can facilitate it; when she provides the means to ensure in advance obedience to such commands or prohibitions, and to repress their possible transgressions; when, in other words, she protects, by means of commands, what may be called the supernatural interest of each homo viator in relation to others, it is evident that she issues commands that have all the essential characteristics required to be qualified as juridical commands.

And if, moreover, in the very legislative texts in which the Church issues such commands, and in the same CIC which now contains the most important of them, there are found commands lacking the aforesaid characteristics, or even statements that are not truly commands at all, this does not mean that canon law lacks the essential characteristics of law, but rather that those commands and those statements are not part of canon law.

III. DIVINE LAW IN THE ORDERING OF THE CHURCH

Divine law, whether natural or positive (v. above), constitutes a source of canon law insofar as it relates to the matter that forms the object of the latter. Moreover, all divine precepts, whether or not they are juridical, constitute a limit on the activity of the Church, since they must be observed even by the highest authorities of the Church, any commands issued by these in conflict with them being devoid of any juridical value.

It should be noted, however, that precepts of divine law which are not explicitly or implicitly reproduced in positive norms do not form part of canon law in the strict sense, even though they are equally binding.

From what has been said it is clear that in the juridical ordering of the Church two fundamental functions can be recognized in divine law: one positive and the other negative. It has in fact a positive function insofar as it determines the content of norms of the canonical ordering, which are the reproduction or the determination of norms of divine law; among these norms special mention should be made, but not only, of those (of positive law) that regulate the constitution and the fundamental powers of the Church, and the essential grades of the hierarchy. It has, on the other hand, a negative function insofar as it constitutes a limit on the activity of producing law, commands that are in conflict with divine precepts having no juridical value, just as the commands of an inferior that are in conflict with those of a superior have no juridical value; and as regards this second function, both divine precepts that have a juridical character (that is, regulating the relations of men among themselves) and those that do not have such a character are of equal importance, even from the juridical point of view — the latter too being customarily included under the designation of divine law, although, properly speaking, they cannot be considered juridical precepts; and likewise of equal importance for this second function are both those precepts of divine law that are expressly reproduced in a norm issued by the Church and those that are not. To any precept of divine law, therefore, the Church cannot make derogations, nor can it grant dispensations from them, even though it has the power and the duty to interpret them infallibly.

In contrast to the norms of divine law, all the other norms of canon law are customarily called norms of ecclesiastical law (or merely ecclesiastical law, or human law).

The distinction between norms of divine law and norms of ecclesiastical law produces certain practical results analogous to the distinction, in force in certain state juridical orders, between constitutional norms and ordinary legislative norms, insofar as in the Church the organs of the legislative power cannot issue norms in conflict with those of divine law, just as in the State the organs of ordinary legislative power cannot issue norms in conflict with constitutional ones. The analogy between the two distinctions is, however, only partial, since, while the juridical order of a State in which constitutional laws are distinguished from ordinary laws always provides for a special procedure by which constitutional laws too can be modified, in the Church there exist no organs that, even by extraordinary procedures, can modify norms of divine law or derogate from them.

Furthermore, the existence of norms of divine law means that, if in the Church the ancient conception of the princeps legibus solutus (D. 1, 3, 31) is still found, there is nonetheless this limitation, namely that the supreme pontiff is not released from all juridical norms, since there exist some (divine law) to which he too is subject, even though the juridical order lacks the means or technical procedure to ascertain the conformity of his acts to those norms, and to obtain from him coercively their observance.

The CIC repeatedly refers to natural law, either to reproduce its commands or prohibitions (cann. 6 n. 6, 1068 § 1, 1405 § 1, 1509 n. 1, 1935 § 2), or by denying value to positive precepts that conflict with the precepts of natural law (cann. 27 § 1, 1499 § 1, 1513 § 1); in the same sense the CIC sometimes speaks of the "nature of things" (cann. 1110 and 2198), while at other times this expression is used in a literal sense, that is, to indicate the true nature of things, on which the law makes juridical effects depend.

Positive divine law is sometimes expressly mentioned in the CIC (cann. 6 n. 6, 27 § 1, 1499 § 1, 1509 n. 1) or indicated with sufficient clarity (cann. 731 § 1, 948, 1012 § 1, 1322 § 1); at other times it is designated generically by the expression ius divinum (cann. 219, 727 § 1), or divina institutio or ordinatio (cann. 100, 107, 196, 329 § 1).

There are, moreover, some canons in which the expression ius divinum is used to indicate together both positive divine law and natural divine law, but rather the latter than the former (cann. 1038 § 1, 1529, 1926). Finally, various canons reproduce divine precepts without saying so expressly (cann. 1495 § 1, 1512, 1543).

IV. SOURCES

Canon law was born with the founding of the Church, which, being a society of men, could never do without being organized juridically. At its origins, however, it was constituted by the fundamental norms of divine law, and it developed gradually, at first in a fragmentary and rather rudimentary manner, and then in an ever more complete manner, as the laws issued by the supreme pontiffs and the councils increased (the former later called decretals [v.], the latter canons), and as the organization of the Church became ever more complex and perfected.

Omitting here to set forth, even summarily, the outlines of that development, one notes that, immediately after the sources of Revelation, that is, the Bible (v.) and Tradition (v.), traces of norms of canon law are found in the writings of the Apostolic Fathers, then also in the pseudo-apostolic sources, while at the same time true and proper laws valid for the whole Church or for determined territories were being issued by the popes, by the bishops, and even more by the councils, and sometimes also by emperors. These laws, having grown ever more numerous and important, were very many times gathered into collections, either to facilitate knowledge of them, or to coordinate and update them (v. COLLEZIONI CANONICHE, and the entries referred to there).

In the 12th century a notable development of canon law began, also because it may be said that in that century the science of canon law was born: from the first decades of the 12th century, in the Studium (University) of Bologna, alongside the teaching of Roman law, that of practical theology had been instituted; and around the middle of the same century, the monk Gratian, who taught precisely practical theology at Bologna, with his Concordia discordantium canonum gave life to the science of canon law (v. CORPUS IURIS CANONICI; DECRETALISTI; DECRETISTI; GRAZIANO, DECRETO di).

For information on the sources of canon law and on their history see also BOLLARIO; CODEX IURIS CANONICI; PONTI DEL DIRITTO; LEGGE. Here it is added only that, until the promulgation of the CIC (1917), it was customary to call ius antiquum the canon law prior to Gratian, ius novum that of the Corpus iuris canonici and that subsequent to it down to the Council of Trent, ius novissimum that which came after; at present, instead, almost exclusively the distinction has remained between ius vetus (that is, prior to the CIC) and ius novum (that is, in force), a distinction hinted at in the CIC itself (can. 6 n. 2).

For the distinctions between universal and particular law, general and special, v. LEGGE.

On some sources of a special nature v. LIBER DIURNUS; LIBRI LITURGICI; PENITENZIALI, LIBRI; REGESTO; REGULAE CANCELLARIAE APOSTOLICAE.

IV. ROMAN AND GERMANIC LAW.

Roman law and Germanic law were the most important bodies of law with which the Roman Church came into contact in the age preceding the creation of a canon order, autonomous and sufficient unto itself, erected into a system with the dignity of a juridical doctrine of its own and with a tendency to separate from itself moral, theological and ceremonial norms, with which before that time it had been indiscriminately intermixed.

This came about especially in the 12th century through the work of Gratian and his followers.

The detachment of the law of the Church from Roman law and from the remaining civil law, in which Germanic law had prevailed, had occurred before that time in individual points; but from then on it occurred in a more determined form, inasmuch as canon law was precisely in a position to replace with its own juridical principles even a good part of the civil law accepted to complete its own body of norms. Certainly the movement of independence of canon law was due also to pontifical legislation, which became more intense from the time of Gratian's work, coming to constitute an important and more numerous source of norms in the law of the Church.

In the ancient age, the Roman one, it is undoubted that Roman law and the very civilization in which the Church of Rome found itself inserted as a religious organism and an order of norms, had a certain determining action on the formulation of the juridical principles first laid down by the Church, alongside the divine precepts of its governance. It is true, however, that the Roman Church resisted certain maxims and the application of institutions for which it demanded, by reason of the principles of the doctrine of Christ, its founder, a different regulation. Patristic doctrine, conciliar and pontifical legislation are ample testimony of this work of slow and continuous mutation of Roman principles and of their adaptation.

This did not happen, however, without influence also for Roman law, which, after the recognition of the Church and of the Christian religion by the authority of the Empire, was bent by that same imperial authority, and by the direction of a jurisprudence already set in a more moral sense by the Stoic conception, to broaden certain norms and to modify its own institutions according to a more direct inspiration from Christian principles.

It cannot be said, on the other hand, that in the ancient epoch Germanic law had an equal influence on the law of the Church, given the scanty contacts that the latter could have at that time with the Germanic populations, except for some border groups and those introduced into the Empire as settled and auxiliary nuclei. Through these there occurred, especially in the late Empire, and also through the influence of some important military leader whom fortune led to the imperial throne, some infiltration of Germanic principles into late Roman law, especially the patrimonial and military law.

For some regions of the Empire, on the other hand, the invasions and conquests by the Germanic peoples began before the fall of the Western Empire (476 A.D.). And therefore from that time, for those regions, a more direct coming together of Germanic law and Roman law had to occur, and a more direct penetration of Roman norms and juridical principles into the Germanic customs prevailing there.

Quite different, however, because more general, is the situation that arises with the collapse of the Western Roman Empire. Germanic law then represented more freely and generally the law of the victors and, while it aimed on the one hand to superimpose itself on Roman law, it set itself on the other hand, with particular authority, over against the very law of the Church. So that while Roman law became, at least at first, the personal law of the Roman people, the Church began its continuous and tireless work to hold back the impetus of barbarian customs, opposing to these both Roman law, which it had in fact adopted as its own, and those norms that constitute the first nucleus of canon law.

In the historical epoch, when Germanic law (7th century A.D.) is set down in the written redactions of the laws and customs of the various peoples of that stock, it has already undergone a profound mutation and a drawing closer to the principles and institutions of Roman law.

In the gradual passage of the Germanic peoples to the Catholic faith, Germanic law likewise bent to the principles and rules of life proposed directly by the Church in its own law. A typical example of that evolution in a Roman and Christian direction is offered by Lombard law, which had particular importance for Italy and a specific influence on the more direct relations with the center of the Church of Rome. In that law, while the influence of Roman law can be traced as far back as its first written monument (the edict of Rothari of 643), the slow penetration of Christian principles is likewise visible. It may be said that that Roman and Christian evolution of Lombard law reaches its culmination with the last Lombard legislators, above all with Liutprand. Under a more direct Christian influence one perceives the prevalence of consent in obligatory relations, the introduction of Christian principles into the regulation of marriage, the introduction of dispositions of last will with bequests for the soul, and so on.

The work of the Church in its Christianization of the Roman and barbarian West in the first period of the Germanic dominations is represented by luminous examples. Contemporary with the first Lombard domination is the pontiff St. Gregory the Great, who was a valiant bulwark in the defense of Roman law in the new Christian spirit. He sent the Roman texts, suitably transformed in a Christian sense, to England and to Spain. In the latter country, on the other hand, through the work of Isidore, bishop of Seville, author of the book on the Etymologiae, many norms and institutions of Roman law were received, while the new concept of binding law was decisively affirmed, insofar as it answers to the moral requirements of intrinsic honesty and goodness, and the original source of law was determined to lie in ratio, which must likewise inform custom itself. With the constitution of the Holy Roman Empire there was a greater consideration of Roman law and a better disposition of the national laws, proper to the various Germanic peoples subject to the authority of the new emperor, to receive the norms proper to the Church, and this is brought about above all through the imperial legislation of the capitularia.

Nevertheless it would be necessary to reach the 11th century, and still more the 12th century, for Germanic law to encounter a more vigorous hostility on the part of the new interpreters of Roman law (they are also ecclesiastics, such as St. Peter Damian, who illustrates the Romanist orientation of Ravenna, who give the first order to the rediscovered Justinianic sources). But that work of revision was due still more to the creators of the common law, who worked on the basis of the Justinianic texts to create a complex system suited to the life of their time. The use of Germanic customs became ever more restricted to particular and isolated zones.

Principles of Germanic law also passed into the regulation of the fief of the Frankish or Lombard type in the respective texts of the so-called assizes of Jerusalem and of the books or consuetudines feudorum, and in part they were received into the ecclesiastical fief.

Roman law and the Church with its own law thus emerge victorious from the struggle, and yet Germanic principles pervade the new construction of Roman law and pass into the still dogmatic construction of canon law.

Interesting is the reflection wrought upon the law of the Church by Germanic customs from time to time. Some of those influences were of brief moment and were afterward overcome, such as the acceptance, even among ecclesiastics, of certain proofs of the Germanic process, such as that of the judgments of God, or contaminations, for example, of the institutions of property and possession.

It must be noted, however, that of the numerous Germanic infiltrations into the juridical practice of the Church we are given an account above all by the records of monasteries living under Germanic law, such as, in our country, above all those of Farfa and Nonantola. Other changes, on the other hand, likewise due to Germanic influence, took root in canon law, such as the defense of the simple pact, the computation of kinship, and certain features of the process with the form of the inquisitio and of the proofs proper to the Germanic tradition, and the more accelerated form of the extraordinary process or de plano et sine strepitu figurae, afterward definitively consecrated in the Clementina Saepe.

The Church therefore kept what was most vital in Germanic law, but its law turns out in its principal framework to be a construction conformable to Christian morality, which is based on the divine precepts and is vivified by the spirit of equity, while its structure and the technique of its elaboration remained more closely adherent to Roman law. And if pontiffs and ecclesiastical jurists sometimes rose against it, it was only to condemn some point unsuited and not conformable to Christian life and morality.

The law of the Church may therefore be considered as the most spiritual derivation of the further evolution of Roman law, relived by the Christian conscience.

Antonio Rota

V. COMMON LAW.

Common law was the name given to that law which was formed, beginning in the 12th century, through the work of the schools of glossators, post-glossators, commentators and treatise-writers, from the interpretive elaboration of the Corpus iuris civilis (v.).

The common law was therefore fundamentally a "renewed and modernized Roman law" and came to constitute a general civil law, in whose formation jurists of all those countries that opened themselves to the communion of the use of this law collaborated. It had the force of general law for the various Christian States of Europe in which it spread and which in the modern period introduced it, with their political expansion and affirmation, also into the other continents. It endured in that function of general law until the age of the codifications (19th century), and its regulatory action did not everywhere cease with the application of the codes.

The idea that Roman law constituted a general law binding above the political divisions brought about on the territory of the ancient sovereignty of the Roman Empire was produced in the very first epoch of the formation of this new law (12th-13th centuries), although the exegetical orientation of the gloss preferred to keep itself closely adherent to the conceptions expressed in the Roman sources.

Thus it appears to us on the one hand that the gloss used the term and the idea of common law to indicate, in the wake of the Roman tradition, rather the greatest general laws taken into consideration in ancient times, that is, the ius naturale and the ius gentium, while it tended to regard Roman law as the ius proprium of the Roman political unity.

But alongside, and in opposition to, this traditional conception, a new conception concerning Roman law was put forward in the same Bolognese school, according to which this law is understood as a law valid for all. Now it is precisely this idea of indiscriminate extension, from the point of view of the existing political fragmentation, that in the conception of the glossators serves to attribute to a law that is capable of such an overcoming the technical qualification of common law, although the glossators themselves do not seem to arrive at the express proclamation of Roman law as common law.

Nevertheless, immediately afterward, one arrives at that technical designation of ius commune for the new law created upon the Roman sources by the Bolognese masters, as appears in the Statutes of Bologna of 1288; there, in ch. 8 of book VIII, it is provided that the contracts and last wills of the students shall be valid si facte fuerint iure communi etiam si careant solemnitatibus que viderentur requiri ex forma alicuius statuti seu iuris municipalis.

In the term ius commune there is recognizable here the Roman law, in contrast with any statute, the latter being valid as the ius proprium of the homeland of the individual students, who had come together from everywhere to the Bolognese Studium.

Common law therefore consists as a substantial entity of norms solely in the law that arose from the interpretation of the Justinian sources by the school of jurists, beginning with the glossators.

Such law did not embrace, nor could it embrace, within its substantive body the other general laws that came along with their own ratio and their own sphere of application (canon law, feudal law), and the other particular forms of law (statutes, particular laws, customs) that presented themselves as an obstacle to the full application of common law.

The opinion most radically opposed to this historical recognition of the substantive content of common law was recently formulated by Calasso, who holds that from the substantial encounter especially of Roman law and canon law there followed the formation of a universal law proper to the new Christian people. Nor, according to Calasso, does the substantive content of common law stop there, since this would have absorbed into itself even the particular elements of opposition, by reason of the system of mechanism that linked the general law to the particular one.

As for the supposed substantial union of the various general laws, one may oppose to it first of all the motive of the different rationes that presided over the formation both of canon law and of feudal law, in comparison with Roman law. Especially the canonical one, moreover, was a law whose reasons appear to transcend the earthly consideration of life, in view of the supernatural end that presided over the society regulated by it. It was a law that could never be joined with secular law, not only because of its own ratio, but also because of the different authority that presided over its formulation and its interpretation and because of the different field of its prevailing application.

Furthermore, one must note the historical testimony of the strident clash of the two powers, the lay and the ecclesiastical, and the insistent struggle of the two laws, of which there is an echo at every step in the testimony of the jurists and of the legislation of the time.

The separation of civil law from canon law, at least as substantive content, is then demonstrated by the very declaration of the interpreters who presided over the elaboration of common law, and who proudly declared that everything necessary for the regulation of juridical life and for the formation of the jurist was contained in the Corpus iuris civilis.

This does not detract, however, from the fact that canon law influenced as a factor in the transformation of the norms of Roman law through the interpretation of at least a part of the jurists of common law, as is observed in the acceptance of the principles of the faith, in the improvement of personal laws, in the regulation of marriage and of other institutions. By the same path of interpretation some element of the feudal conception flowed back as a modification of principles and institutions of civil law.

This does not, however, in any way imply a substantial unity of the various general laws, which was entirely lacking, because of their fundamental irreconcilability. As for the systematic reason of common law that could have induced, according to the opposing thesis, the particularistic elements of statutory law and of local custom into the substantive content of common law, it seems to us that one must distinguish the reason for the linking of common law with particular law from the fact of the substantive and historical content of common law itself.

This in fact remained what it was, and that indifferently from the fact of the linking of common law with particular law, so true is it that, even granting that common law could be disapplied by a particular norm to which a derogatory value with respect to it had been recognized, this does not authorize one to affirm, against the reality of historical testimony, that the particular norm thereby came to form a stable part of the body of common law. It remained a norm of particular law, restricted and transient, just as the norms of particular law were restricted and transient. And on the other hand, it could happen that the same norm of common law, disapplied in one place because of the presence of a derogating particular norm, was instead applied in another place, where it encountered no obstacle to application on the part of particular law.

A divergent conception would serve to indicate the phenomenon of common law in the application of a determined place and not common law in suo esse.

That the historical content of common law then always maintained itself on the basis of the law arising from the Roman sources alone is shown to us, still in the full seventeenth century, by the great Cardinal Giovanni Battista De Luca, who was one of the most acute and ingenious theorists and systematizers of the now mature production of common law.

He specifies the ius civile commune by indicating it as illud Romanorum ius quod civile commune dicitur (De officiis venulibus, ch. 1, n. 3), and sees it recorded in the texts of the Roman sources as follows: Ius civile commune est proprie illud, quod ex auctoritate Romanae reipublicae, seu Romani Imperii conditum est, atque registratum iuxta compilationem Iustiniani (Theatrum verit. et inst., I. XV, part 1 [*de iudiciis*], disc. 35, n. 15).

Antonio Rota

VI. INTERNATIONAL LAW.

I. DEFINITION

The body of norms intended to regulate the conduct of the subjects of international society is most commonly called international law. The same terminology has not always been used. Vitoria, who was one of the first theorists of this branch of law, called it ius inter gentes; Grotius defined it as a law that inter plures populos intercedit. For a long time, especially by French-speaking writers such as Vattel, it was called the law of nations, and the term is still in use among German writers as well. The opinion that would attribute to the term international law the boundaries of contractual or positive law alone, while assigning to the law of nations as its content the more general and common norms of justice, must be regarded as unfounded. The distinction has no support in doctrine, where the two denominations are considered equivalent: the former is nevertheless to be preferred, inasmuch as it removes any possibility of confusion with the Romanistic ius gentium, a different concept and one coinciding with modern public international law in only a small number of institutes. The more modern denomination derives from Bentham, who distinguished international law, the law in force among nations, from national or internal law, or domestic law.

II. HISTORICAL GENESIS

Regarding the historical genesis of international law there are three different opinions. One, upheld by a few isolated theorists, traces its origin back to Greco-Roman antiquity; the second, which stands at the opposite extreme, places its appearance at the time of the Treaty of Westphalia of 1648; the third already recognizes its existence in the Christian community or Respublica Christiana of the Middle Ages. It certainly cannot be excluded that in remote antiquity there existed norms that must have regulated relations among peoples. If there existed among them commercial exchanges, wars and peaces, treaties and conventions, some normative rule must also have existed. Human nature, moreover, always expresses itself in the same way, and since law naturally regulates relations among rational subjects, a certain embryonic law must have arisen among ancient peoples. From this, however, to affirming that international law was already formed at that time is a great leap. The few examples that are adduced to support the thesis have a limited value. The Laws of Manu, in which some prescription appears regarding prisoners who surrendered in war, had a scope of application limited to certain peoples of India bound by community of race. The same must be said of the conventions of the Hellenic peoples and of the amphictyonic leagues, which had as their object the citizens of the Greek city, not other peoples, held to be barbarians and considered outside all law. No different was the attitude of the Romans, as the fragment of the XII Tables attests: Adversus hostem aeterna auctoritas esto. The ius fetiale was, rather than a law, a religious formality directed at propitiating the favor of the gods toward one's own arms; the priest declared the bellum iustum without regard to any juridical principle.

In Greco-Roman antiquity, although some general rules existed, such as the sanctity of envoys and of the given word, a true international law did not arise. Its appearance, on the other hand, begins with the expansion of the Christian idea, which propagated the universal concepts of the brotherhood of all men and of their equal dignity, brought peoples closer together, causing ethnic barriers to fall, moralized conceptions of power and of the use of force, preparing the ground for the recognition of the equality of all peoples and of their natural autonomy, indispensable presuppositions for the rise of an international law. In Christian society, in fact, rules and institutions began to establish themselves, particularly regarding the conduct of war, such as, for example, truces, the inviolability of ambassadors, arbitration, the treatment of prisoners, the justification of conflicts, in substance identical to those in force today. Proof of this origin is the fact that the first theorists who occupied themselves with systematizing international law came out of the Christian community. St. Augustine hints at the principles of just war; St. Thomas systematizes them; Vitoria, Suárez and Soto develop them extensively, laying the foundations of the modern science of international law long before the famous Peace of Westphalia. Consequently the opinion that traces the birth of international law back to this date must be held to be historically unfounded, according to the findings of more recent investigation. True only is it that from the Peace of Westphalia the States take ever more vivid consciousness of their autonomy and equality and the scientific elaboration of law progresses, acquiring greater systematicity.

III. DIVISION

International law is customarily divided, first of all, into natural and positive. Natural law is that which has the nature of man and the essential constitution of the subjects of international society as its source, and is composed of those general norms and principles of justice which are dictated by the moral conscience. Positive law is that which has the will of those same subjects as its source, and includes both the norms deriving from that will, once recognized and accepted, and the norms that supplement it and regulate contingent relations. It is universal if it extends to all the subjects of the society to which it refers, it is particular if it concerns only a certain number of them. It is called public, on the other hand, if it regulates their external relations as subjects of international society, private if it serves to settle questions arising from the variety of laws in force among the different subjects; conventional when its source lies in agreements and conventions, tacit when it is deduced from the constant practice of States. Another division long since introduced is that between the international law of peace, which comprises the ordinary norms in force during the period of peaceful relations, and the international law of war, which regulates the conduct of States during the period of hostilities.

Not all the distinctions recalled are equally accepted by contemporary doctrine. The first, between natural law, also called rational or objective, and positive law, is today rejected by the majority of jurists, who have adopted the dogma of the positivist school, which recognizes only the will of States as a source of law and maintains the equation between law and positive law, attributing to natural law at most the character of a moral norm or of an abstract demand of justice. The other distinction, between public and private law, is contested by not a few, inasmuch as they hold that private law is a part of the general theory of the conflict of laws. It nevertheless has its importance, at least for bringing out that the true international law is public law.

Public international law, which is what is dealt with here, may be defined as the body of legal norms that regulate the conduct of the subjects of international society. The definition requires a brief explanation, in order to bring its terms into focus. It is stated that international law is a body of legal norms, in order to exclude the opinion of those who regard it either as a law in fieri, or as imperfect, or as an abstract moral rule. It is added that these norms are intended to regulate the conduct of the subjects of international society, first of all because it is essential to law to produce a categorical obligation in the subject, who must govern himself according to its dictate, and furthermore in order to bring out that the subjects to which it refers are not only States, as an opinion by now almost abandoned maintained, although States are the principal subjects.

IV. EXISTENCE

The existence of international law is denied by certain currents of thought. Some of them, with a political background, which construe the relations of States as relations of pure power, regulated only by force, necessarily exclude the existence of legal norms. Others, by contrast, rest upon a theoretical foundation. Of these, some start from a false concept of law, which they define as a command provided with coercion, and since in international society there exists neither a commanding will nor a coercive apparatus, they conclude that the law in question is not true law. Others rest upon an equally false concept of sovereignty, conceived as absolute and unlimited power, to which it is impossible to assign an external limit, such as law would be.

Against these denials stands the simple argument that, wherever a society exists, there law necessarily exists: ubi societas ibi ius. Now that an international society exists is a truth incontrovertible both philosophically and historically. The objective study of human nature reveals in it the presence of a stimulus of solidarity, which effectively moves man to seek the company of his fellows, in order to begin a stable communion of life. This stimulus is activated by two causes: by the affective tendency, which moves man to expand into other beings, and by the congenital insufficiencies of his nature, incapable of attaining all the ends of life by its own forces alone. The instinct of sociability, moved by the aforesaid causes, is realized in various degrees, first in the family, then in the tribe, in the nation, in the State, a broader organism that can better fill human insufficiencies. Yet not even the State is sufficient unto itself: in order that it may attain the goal of civilization in favor of the human person, it must be integrated by the collaboration of others, entering into a communion of life with the other political aggregates. Under the impulse of solidarity there then arises a society of States, international society, which, like the family and the other social formations, has a natural foundation.

History confirms the philosophical argument. States have never lived in isolation, but in all times, albeit in differing degrees, they have been bound by manifold relations. Today, moreover, their union is rendered even more evident by the ease of communications, which have shortened distances, making the world morally small, and by technical progress which renders them ever more interdependent than they were in the past. The existence of an international society is, therefore, an undeniable fact, and consequently the existence of a true international law is likewise an undeniable fact. The objections to the contrary, mentioned above, have no force, since the most serious of them proceed from the false concept that law is essentially a command provided with coercion. Law, on the other hand, is a norm that dictates a categorical ought-to-be to the will, which cannot proceed from the very will called to observe it: coercion, moreover, or coercibility does not belong to its essence, but is an aid to its greater efficacy, which presupposes the norm already existing and operative in the conscience of the subject.

V. SOURCE

Once the existence of international law is established, questions arise about its nature and its source, intimately connected with one another, so much so that they can be considered as a single question. In this regard, doctrine is divided into three currents. The most substantial holds that the sole source of international law is the autonomous will of States. A more recent one maintains that not all international law is voluntary, but that in international society there exist immanent institutional principles, which are determined by the very formation of society and impose themselves on the will of States, since every society is born with a legal order with which it is identified: this is the institutionalist theory. The Catholic current rejects the first and draws noticeably close to the second.

It maintains the existence of a double source, one natural and the other voluntary. The first resides proximately in the very nature of man and of the social aggregate, and from it emanate the fundamental norms of justice, which regulate human conduct in the manifold social relations, including on the international plane. That is to say, there exists an objective and rational order that posits itself, by virtue of an intrinsic value of its own, which it derives from the intelligence and will of the Supreme Being, on which it depends in its design and its realization, and which therefore presents itself to the will of States as an order to be accepted in an absolute manner. This is natural law. The second source resides in the free will of States, which, by means of conventions or treaties, either give positive form to natural law, or determine and integrate it, when it expresses itself in a vague manner or leaves the relationship without a norm.

Catholic doctrine thus approaches the institutional theory, inasmuch as, like that theory, it admits the existence of principles immanent to international society, excluding the voluntarist thesis; it departs from it inasmuch as in its systematization it traces back to the transcendent source of all law, does not accept the equation between legal order and society, and consequently is averse to accepting the sociological and fundamentally positivist explanation of international law, from which that theory does not free itself. The rationality of its position flows from the fact duly analyzed. It is an undeniable fact that every entity carries with its nature certain appropriate laws, by which it is guided in the unfolding of its activity. These are the laws that science seeks out and establishes through the study of nature. If now such is the condition of all entities, man cannot be an exception to it, nor is he, since he too carries engrafted in his nature laws of his acting, which, conforming to his perfection as a rational being, take the form of moral precepts, which, while leaving him free in his choice, dictate a duty to him.

Within the range of such natural and rational laws are included those that regulate social activity toward equals, which are shaped in a particular manner, so as not to injure the equality of the subjects, and therefore prescribe a conduct ad aequalitatem, which is the specific mark of the norm of justice or of law. There exists, then, an order of natural justice, which extends to the State and to international society, both effects of human nature and permeated with the perfection of their cause, both real entities and therefore bearers of immanent principles of action like man, by which their relations are regulated. This being established, the nature of international law manifests itself very clearly: it is a natural law in its fundamental precepts, it is positive in the integrations and determinations proceeding from the will of States.

VI. OBLIGATORINESS

Connected with the question just resolved is the other one concerning the foundation of the obligatoriness of international law, with respect to which legal positivism has proposed various solutions, which however neither satisfy reason nor save the law. It has been maintained, on the basis of Jellinek's theory, that international law becomes a binding norm by virtue of an act of the will of the States themselves, which, in creating the law, impose a limit upon themselves, limit themselves. It was not difficult, however, to perceive that a self-limitation, posited by a will defined as essentially free and which remains such after the creation of the legal norm, is not an effective bond, a true obligation, since that will could dissolve it by a contrary act, which would in turn also itself be law. No one can be a legislator unto himself.

To overcome this difficulty Triepel imagined the existence of a collective will, which would result from the conjunction of the individual sovereign wills and from which the law would proceed, which for that very reason would have the power to impose itself upon the underlying wills. The expedient, however, does not resolve the problem, since the superior will, from which the law would proceed, reveals itself to be a fiction, since a will cannot be given without a substantially one subject, and such is only man. The theory moreover evidently derives from juridical-naturalistic contractualism, whose terms it transfers into international society, imagining the formation of a general will.

Leaving aside the sparse current that sought to base the obligatoriness of international law on the will of the great powers, because it is too evidently anti-juridical, inasmuch as it erects force into the criterion of relations among States, the solution proposed by Kelsen and developed by Verdross deserves special mention. According to these authors, law unfolds in a spiral, so that the validity of the lower orders depends on the higher degrees. The order that stands at the top of the hierarchical scale would be the international one, and this in turn would have as the hook, to which the whole spiral attaches itself in a descending sense, the principle pacta sunt servanda, indemonstrable, meta-juridical and to be accepted as an axiom. The construction, undoubtedly ingenious, collapsed at the touch of criticism. The more objective theory of the plurality of autonomous orders among themselves opposes, first of all, victoriously the unity imagined by the Viennese school. Moreover, a question of law cannot be coherently resolved by appeal to a meta-juridical axiom, and moreover an indemonstrable one, nor can the norm pacta sunt servanda serve as the foundation for the whole of international law, which is not only of conventional origin. Finally, it itself does not present itself as the apex of the spiral of law, since it postulates another superior one, in order to distinguish the pacts that must be observed from those that cannot and must not be observed, as would be, for example, an immoral pact.

Closer to the truth is the institutional theory of Romano, recalled above. Catholic doctrine brilliantly overcomes the difficulty left unresolved by positivist juridical doctrine. Once the existence of a natural law is admitted, of an order of objective and rational justice, which imposes itself by its own virtue upon the will of States, international law finds in it its firm foundation, whether it assumes, by a receptive act, the norms of the natural order, or whether this order integrates them with positive laws, which have binding force insofar as they do not oppose the more general demands of justice. In other words, international law too needs a superior criterion of evaluation, in order to distinguish unjust norms from just ones. Such a criterion cannot be the will of States, since in that case the law would be abandoned to the caprice of the most unbridled subjectivism; it must therefore be found outside it in an order of justice removed from its arbitrariness. Upon this order of justice, immanent in human nature, in the State and in international society, and at the same time transcendent because it derives from the will of the Supreme Being, rests firmly the whole of law, including international law.

Antonio Messineo

VII. ECCLESIASTICAL LAW.

I. DEFINITION

The name "ecclesiastical law" was originally used as a synonym for canon law; and even now it is often used in that sense, especially by ecclesiastical writers and generally by those who write in Latin; indeed, even in the CIC we find the term used in this sense (cann. 27 § 1, 727 § 2, 1513 § 1), sometimes as designating human canon law as opposed to divine law (cann. 1043, 1131 § 2, 1139 § 1, 1926, 2364). Others, on the other hand, understand, or rather understood, by ecclesiastical law both divine and human canon law, reserving the name of canon law in the strict sense only for that of human origin; others, finally, contrast ecclesiastical law, as comprising the whole law of the Church, with canon law, which would be only that contained in the CIC.

But from the 17th century Protestant writers and then writers with jurisdictionalist tendencies used to designate by the name of ecclesiastical law the body of legal norms issued by the State in ecclesiastical matters; and this usage has become increasingly frequent in modern times, especially in Italy, where, however, there is no lack of those who, after the Concordat, consider preferable the designation "concordat law," an expression which others instead use to indicate the general theory of concordats, or the comparative study of concordats. Outside Italy, where the science of State law in ecclesiastical matters has never reached the development it has in Italy, the terminology is more uncertain; thus treatises on this subject are in France sometimes designated as treatises on droit public ecclésiastique, sometimes as treatises on droit ecclésiastique; in Germany the subject is generally indicated as Staatskirchenrecht; in Portuguese-speaking countries as Direito civil-ecclesiastico, which expression is also used in Belgium (droit civil-ecclésiastique); and finally in Italian-speaking Switzerland the name "ecclesiastical law" is used in the same sense. Writers in Latin use various expedients to avoid confusing this subject with canon law, and therefore speak of ius civile-ecclesiasticum, or of ius civile de re ecclesiastica, or else of ius ecclesiasticum italicum, gallicum, germanicum, etc.

Ecclesiastical law is therefore, according to the most common usage of that expression (at least now, and in Italy), the body of norms of the State's legal order, in matters that the State itself considers to have a religious purpose (in a narrower sense this is understood only with reference to the Catholic religion); in a broad sense it also includes the norms in matters that, although religious, are not considered such by the State (e.g., the norms on marriage, where civil marriage is in force).

II. SOURCES

It should be noted that this body of norms is in part made up of norms issued and formulated directly by the State; but it may also be in part made up of norms not formulated directly by the State, but rather formulated by reference to the juridical order of the Church; and therefore even these norms of the Church to which the State may grant the force of juridical norms within its own order form part of the ecclesiastical law of the State, just as, in the reverse case, canonized state norms form part of canon law.

They can be grouped into three main categories:
a) norms of bilateral origin, that is, constituting provisions of an agreement between the Holy See and the State, and which have become part of the internal order of the latter through the law that gives effect to the agreement itself; b) norms of unilateral state origin, namely those formulated directly by the State to regulate ecclesiastical matters: many of them, however, are in turn founded on concordat provisions, or are in fact established by agreement between the Holy See and the State (cf., for Italy, art. 45, last paragraph, of the Concordat); c) norms of unilateral ecclesiastical origin, that is, juridical norms born within the order of the Church and adopted by the State and enforced as norms of its own order, through a procedure that can be regarded as a receptive reference.

In Italy the principal sources of ecclesiastical law are the Lateran Pacts (v.), the various legislative and regulatory norms issued by the State for the implementation and execution of those Pacts, and certain provisions of the Constitution (cf. especially arts. 7, 8, 19 and 20). V. ITALY, legal status of the Church.

Pio Ciprotti

VIII. MISSIONARY LAW.

By missionary law is meant that law which has force both in mission territories and in those outside the missions, and which in some way concerns missionaries and the missions as such. It is divided into internal or canonical, external or civil, and mixed or concordat missionary law.

Internal or canonical missionary law, considered objectively, is the sum of the laws that govern the work of the missions. It is called canonical because it emanates from the Church and comprises not only laws properly so called, but also less solemn provisions and norms, which have their origin either in divine or in ecclesiastical law. It concerns not only the persons who are in the missions, but also others who are outside them, and further not only the territories of evangelization, but indirectly also those of common law, in relation to the institutes and seminaries subject to Propaganda that are located there.

External or civil missionary law draws its origin from civil States and is either international or national. The first comprises the international treaties and conventions that concern the missions directly or indirectly, as well as general norms and often particular treaties between nations. The second is that law which in any way concerns the missions and missionaries and is issued by a State. This law is called metropolitan if it concerns the mother country; it is called colonial if it refers to the colonies. Either one may be found in mission territories.

Mixed or concordat missionary law is that established following a pact or bilateral convention between the ecclesiastical and the civil authority.

Besides the concordats with certain States of South America, such as Colombia, mention should also be made of the conventions between the Holy See and Portugal concerning India and Macao (1928) and concerning the diocese of Meliapore (1929) and the missionary agreement likewise with Portugal (1940), as well as the agreement with France relating to the liturgical honors of French representatives (1926).

In general missionary law has not had a logical development but displays adaptations and refinements more because of the difficulties to be overcome than because of doctrinal principles. It is a simple and expeditious law, not rigid and absolute, but flexible and varied, which pays less attention to the name of the juridical institutions created than to their usefulness. One of its characteristics derives from the fact that the missions are entrusted in the great majority to religious. Moreover it comprises many faculties, privileges and indults, granted for the most part in derogation of the norms of general canon law, for the purpose of facilitating missionary work, so that missionary law does not place the clergy and faithful of the new Churches that are coming into being in a situation of inferiority but has the purpose of ever more accelerating the work of the Christianization of the local environment.

Before the publication of Gratian's Decree (c. 1140) elements of missionary law can already be discerned, and these multiplied in the following centuries especially after the twelfth and in particular after the founding of Propaganda. During the Vatican Council there was an attempt at codification of missionary law which was not carried out because of the sudden interruption of the council itself. The CIC has several canons that concern the missions, but the prescriptions contained in them do not exhaust the vast subject in question. To have, therefore, the complete system of missionary law one must have recourse not only to the canons of canon law, but to the many provisions issued especially by Propaganda, some of which have not been made public and the others contained in common and particular collections.

Among these one must remember the bullaria of a general character and those of the various religious institutes and of the Portuguese and Spanish Patronate. Particular mention is due to the Bullarium Pontificium S.C.D.P.F., the Ius Pontificium de Propaganda Fide (v.), the Collectanea published first in Paris and then in Hong-Kong (1905) by the Society of Foreign Missions of Paris, the Collectanea of Propaganda itself and lastly the Sylloge.

Saverio Paventi

IX. LAW AMONG PRIMITIVE PEOPLES.

I. GENERAL REMARKS

Among primitive peoples, as also among peoples of higher civilization, e.g., the Chinese, law is founded on morality and cannot be understood without morality; and especially in the determination of punishment, justice and the greater edification of the people are sought. Since the demands of common and daily life, the moral and religious ideal inspire and give life to the mutual relations among the members of the community, the laws of the family, the clan and the tribe, as among historical peoples, so also among primitive peoples there is no juridical stagnation, but law has its own characteristic life, like the civilization in which it is set. And yet the Miaoze, in southeastern Asia, for example, every year at the beginning of the field work hold a solemn assembly, in which they lay down the norms for the community, so that the litigious cases of the past may not be repeated; among the Giagga, in eastern Africa, tradition attests that in ancient times the fine for a woman's adultery was two goats (v. below).

The law of primitive peoples makes its influence felt also in the written law of the so-called historical peoples of high culture, because these naturally carry back their existence to a past time, in which they did not yet have the use of writing — influences that are, however, more abundant in their customary law, in which, as for folklore, three strata must be distinguished. The first is an upper stratum, which is the product of the higher culture, into which, however, the individual offshoots of the deeper strata also arrive; the second is a middle stratum, which consists of by-products of the upper stratum and of products of the ancient primitive culture; the third is the lower stratum, which consists only of elements of the prehistoric period, that is, before history founded on written documents.

Since primitive peoples do not know the use of writing, their law, like every other manifestation of their culture, is therefore the object of ethnology, called by Post ethnological jurisprudence, but subsequently, ordinarily and more precisely, juridical ethnology. This, starting from the comparative study of the juridical order existing at a given time, generally the present one, the one ordinarily accessible to us, among a given people, arrives, by broadening the perspective of time, at making the history of the law of this people; then, broadening the spatial or geographical perspective, it comes to make the universal history of law, always showing the concrete causality of the individual phenomena. It reaches its ideal goal by gathering all the juridical phenomena observable in the history of human development into a system, obtained with the greatest possible extension of the function of space, time and causality. It therefore tends by its nature to make a general history of law, and in itself it cannot be a philosophy of the history of law, nor a general theory of the evolution of law, nor a theoretical or explanatory science, nor can it reconstruct the elementary forms of law. The search for and study of the general laws and causes that would regulate the evolution of human law was the goal that the evolutionist ethnologists had set themselves, considering ethnology simply as a natural science of social life. Thus thought Bachofen, A. H. Post, Kohler, Bastian, Morgan, Mc Lennan, Andrée, Giraud-Teulon, Steinmetz, Dargun, Max Schmidt, Mazzarella and others. Among the juridical ethnologists the most remarkable place is occupied by A. H. Post (1839-95), who is considered the founder of juridical ethnology, having been the first to set its problems in a broad and systematic way. He is a typical evolutionist ethnologist. Under the influence of positivist sociology, of the well-known historical school of law, of the phenomenalistic philosophy of Kant and Schopenhauer and especially of the Darwinian theory of evolution, he had a mechanistic conception of human history, considering all humanity as a unitary mass with an equal tendency of development, in which the individual counts for nothing, since he cannot, having unconsciously entered into it, influence it with his will, evolution being a fatalistic phenomenon that extends over centuries and millennia. All peoples would have passed through the same stages of evolution: man, a pure animal, living in an animal society, does not know matrimonial bonds, therefore the history of the human family begins by passing from primordial promiscuity to group marriage, then to marriage by capture, then to marriage by purchase; from polygamy one would have arrived at monogamy, from matriarchy, when children knew only the mother, to patriarchy; while human society, formed first in the gentile type, would then have been transformed into the territorial type, then into the seigneurial and then into the corporative one.

The parallelism observed in the juridical institutions of the most diverse peoples in the most diverse times was explained by A. Bastian, given the uniform psychic nature of all men, by elementary thought and ethnic thought. He maintained the polygenesis of civilization, which, because of the uniform nature of man, evolves everywhere in the same direction (elementary thought), a direction that is little deflected by geographical, climatic and economic conditions (ethnic thought). A. Bastian's theory, like evolutionism, was dominated by the idea that everything is subject to natural laws, whether the world of natural phenomena or that of social and juridical and in general spiritual phenomena.

A greater deepening of ethnological problems, obtained both through the application of the historical method in ethnology and through a broader and more precise ethnographic documentation, has brought out the groundlessness of all these evolutionist positions, which arose, in the last analysis, from a priori principles of a philosophical nature, and has led to the recognition of many and various types of civilization, demonstrating their mutual and genetic relations and the historical individuality of every primitive people. Since to every type of civilization there corresponds a characteristic juridical order or system, the different juridical systems are therefore as many as the different types of human civilization existing in the world, which depend on the diversity of social organization, of economy, of the constitution of public power and of its extent, of the relations of the different social groups within the sphere of authority, of the stability or instability of residence, of the development of the technique of the arts and crafts, of the form of property of the individual, the family, the tribe and the clan, of commerce and communications, and of the conceptions of life and the world.

II. LEGAL SYSTEMS AND CULTURAL FORMS

According to the results of modern ethnology, eight different legal systems can today be distinguished, corresponding to eight characteristic forms of civilization, which are also genetically connected, at least with great probability. Since it is not possible to speak of all of them here, brief outlines are given of four of them, which are fundamental with respect to the others, but arose independently of a single common type.

1. The ethnologically oldest legal order

is that of the peoples called gatherers. Among these, man and woman, sons and daughters enjoy the same legal position, without any distinction. Daily work is divided equally between the two sexes. Marriage is monogamous and freely contracted by the young man and the young woman according to exogamy. The modalities of marriage and wedding are multiple and different according to the different gatherer peoples.

2. The peoples who live by the rearing of large herds of livestock form a characteristic type of civilization, called that of the patriarchal nomadic shepherds. Since married sons remain in the family under the authority of the father, the extended family has developed, consisting of many generations of blood relatives and their women, as long as the memory of the progenitor remains alive, or it counts five, nine generations and then divides, as among the Manchus, the Tungus, the Yakuts. The authority of the father of the family is very great, including also the right of life and death over the members of the family, but it is often mitigated, in a later development, by the assembly of elders. Since the authority over and the belonging of the children is a right of the father, patriarchy therefore prevails. The initiation of the young falls into disuse in a later stage of development. Marriage is exogamous.

The tribal authority handles common legal and economic affairs, such as the assignment of the pastures necessary for each clan, regulates any disputes, manages relations with other tribes, decides vengeance or a fine for homicide, and especially organizes defense against enemy tribes. But generally the State, in the form of the tribe, is, especially in an early stage of the development of this civilization, almost inactive, because the extended family does everything by itself, as independent of the State.

The monotheistic religion, with the characteristic belief in the God of Heaven, imposes many observances and many rites. Particularly noteworthy are the sacrifices to God in the seasons of the year, that is in spring, when the flocks give birth; at the end of summer, when they return from the mountain; at the winter and summer solstice. Two forms of shamanism are of special importance.

3. The law in the civilization of the totemists reflects, in contrast to that of the nomadic shepherds, a great development of the State with multiple social organizations and common craft and economic activities, and also a development of artistic sense and commerce, but to the detriment of the family and of the human personality in its spiritual values.

The tribes and clans that compose it have as their progenitor the totem, ordinarily an animal, but also a plant or a thing, with respect to which all descendants are bound to the observance of many taboos (prohibitions). It is a characteristic belief of totemism, which is not religious in nature but social, with multiple social and economic effects, and is to be distinguished from the totemism of the sexes, from individual totemism, and from nagualism. There is, therefore, a double kinship, that is natural and totemic, of which only the latter serves as a rule of exogamy when marriage is contracted. Each clan has its own totem, whose name, together with that of the tribe and the personal name, serves to distinguish each of its members. The totem, being a distinctive sign like a coat of arms or emblem, is placed on houses, on weapons, and on one's own body.

When the totemist civilization intersects with the matriarchal one, a much more complicated social organization develops, according to the prevalence of one or the other, with the formation of four or eight totemic clans and exogamous phratries and sub-phratries and maternal or paternal descent. Marriage is not contracted directly by the interested parties, and the choice of the bride is limited to one's own class according to the law of exogamy and may be determined from childhood or even before birth, by choosing the future mother-in-law. Sororal polygamy is permitted, provided one can support several wives. There are no wedding ceremonies. It is permitted to lend one's wife to another man, provided he belongs to the class of "brothers." The legal situation of the woman is one of inferiority with respect to the man.

In totemism the concept and cult of God is obscured by the great development of magic and superstitions and of vain beliefs and practices; many rites and festivals are common and tribal; subsequently the cult of the dead is also practiced.

4. The first who revealed matriarchy, in which in the family and the tribe hereditary descent is matrilineal and not patrilineal, was the Swiss Bachofen, jurist and philologist, with his work of the same title, specified thus: An Inquiry into Gynocracy in the Ancient World according to Its Legal and Religious Nature (1861). He had started from the Lycians of Asia Minor and from his inquiry inferred that all peoples had passed through matriarchy; today, however, it is demonstrated that this is not so; indeed this type of civilization is better characterized by the name of the exogamous matriarchal agricultural civilization of small farmers (they use only the hoe and not the plow). The woman, the first inventor of agriculture, at least very probably, became the personal owner of the cultivated field, of its fruits, of the house, and of the means of work. The right of property was inherited by the daughters and not by the sons, and so it is also at present among many peoples. In one form of matriarchy, which would be the first phase of development, the woman does not go into the family of the spouse after marriage; her husband visits her from time to time, becoming like a guest in her family. Therefore the brother or, failing him, the uncle of the wife acquires, as administrator of his sister, special rights and duties with respect to the nephews, to whom he acts almost as father and head of the family, so much so that in a fourth phase they can inherit from him.

In another form of matriarchy, which would be the second phase of development, the husband goes to live with the wife and becomes a member of her family and tribe. It is the marriage called in Ceylon bina, which does not admit secondary wives or concubines, but is monogamous and no payment is made to have the bride.

In another form of matriarchy, which would be the third phase of development, the young man, before having a wife, must serve in the house of his parents-in-law for a determined time, sometimes up to four years, as is done among the Itelmen of northeastern Asia. It is the so-called service marriage. In another form of matriarchy, which would be the fourth phase of development, the bridegroom, instead of working in the house of his parents-in-law, offers them gifts in order to have the bride, a marriage therefore called by purchase. The woman, after the wedding, goes into the house and tribe of the husband, but she and her children always belong to her tribe; succession remains matrilineal; the children inherit not from the father but from the maternal uncle, who is also the guarantor of their rights as well as those of their mother, his sister.

In this civilization there exist secret societies, to which only men may belong, after having submitted to various ceremonies and ordeals, sometimes extremely harsh and immoral. Special ordeals and consecrations are required to rise through the various degrees of these secret societies, which ordinarily possess them — degrees, however, reserved for those who can pay the required gifts, beyond the means of the poor. They are anti-feminine societies, perhaps created expressly to react against the pre-eminence of women in this civilization, and they practically hold in their hands the administration of justice and the preservation of the state order. They perform masked dances, in which the dancers must not be recognized, even in public before the women and the uninitiated, in order to instill fear and dread in them.

Exceptionally there have existed true gynecocracies, that is, with the woman at the head of the assembly and of the government, as among the Hurons of North America; for the most part, even in these cases, she always had men at her side. When this civilization and the totemistic one intersect with that of the nomadic herders, there arises the formation of aristocracy and of dynasties in the secondary and tertiary civilizations, from which those of the historical peoples derive.

Religion has as its particular feature the cult of the dead and of the spirits, which requires sacrifices and rites both in private and in public; in the secret societies it is the cult of the male ancestors alone. Monotheism grows weaker.

III. THE ORIGIN OF LAW

Evolutionist legal ethnology maintained that law, like every other cultural manifestation, had its beginning in elementary forms arising from man's first evolution from pure animality to his long becoming of Homo sapiens. Today, however, most ethnologists, as well as anthropologists, linguists and prehistorians, have rejected the polygenist thesis and accepted the thesis of the monogenetic origin of man, tending to demonstrate this unity under the aspect of civilization, race and language. Therefore all legal systems currently existing in the world likewise presuppose a first legal system, purely human, reflecting the cultural conditions of the first human family and of the first people of the earth. It is no longer possible to ascertain this today in its reality, but it can be deduced from what is ascertained among the ethnologically most ancient peoples, just as is done for religion, economy and the other cultural manifestations.

Religious law cannot derive from magic, since a law cannot be created between anonymous forces and men, and much less bonds between the members of a religious community; it cannot arise except when there are recognized both a transcendent and personal spiritual Being with whom man can deal and who can have a cult, even a collective one, and principles of spiritual life sufficiently coherent and rational to constitute the basis for a religious community.

Luigi Vannicelli

RIGHT OF ASYLUM: ASYLUM, RIGHT OF.