Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Wednesday, October 13, 2010

Jacques Maritain and Natural Law: The Ius Gentium as "Middling" Law

THERE ARE OTHER KINDS OF LAW that Maritain discusses in his work on the natural law we have been discussing in these last series of posts. In particular, Maritain focuses on the ius gentium, the "law of nations," which is a sort of middle ground between the natural law and mere human positive law. Maritain refers to the "law of nations," or the ius gentium, as the "common law of civilization."* Maritain, 48. Right (ius) means something no longer only "virtual," but right obtains a "formal and actual" meaning. Maritain, 47. By using the term ius gentium, Maritain is referring to that area of thinking that we might call the area of natural rights. In terms of theoretical underpinnings, this area has been a morass of confusion since the 16th century.

Maritain distinguishes the ius gentium from the natural law by the manner in which it is known. "The Natural Law is known through inclination, the law of nations [ius gentium] is known through the conceptual exercise of human reason (considered not in such and such an individual, but in common civilized humanity)." Maritain, 48; see also 63 n. 30. It thus shares features with human positive law, and for this reason St. Thomas categorizes it as part of positive law.

But for Maritain, the ius gentium is a middling law between the natural law and pure human law because, though it may share the manner in which it is known with the positive law, it shares the immediate source of its existence with the natural law. "[The ius gentium or law of nations] is based upon the natural order of morality, but it emanates necessarily from this order as the first formal juridical order."
--Jacques Maritain
In the case of the ius gentium as Maritain understands it, "the human reason does not intervene as the author of the existence of the law (which is the case with positive law in the strict sense), but it does intervene as the author of the knowledge of the law. Hence we have one foot in the land of "virtual" law, and one foot in the land of "formal" law. The ius gentium is thus an "intermediary between natural law and positive law." Maritain, 63. The ius gentium, then, is known "through the rational, logical, conceptual exercise of the common reason, starting from more profound and more primary principles which are the principles of Natural Law." Maritain, 49. In this sense, "it pertains to positive law." Maritain, 63. There are, consequently, shared areas of law between the natural law and the ius gentium, and in these areas, the law may be known on the one hand by inclination (i.e., by connaturality or "intellectual feltness" or an "intellectual tendentiousness") and by discursive reason. In another portion of the text, Maritain cites the example of prohibitions against murder, knowledge of which can be gained through inclination and through the exercise of conceptual reason, and thus is both a precept of the natural law and the precept of the ius gentium.
[A] precept which is like a conclusion derived from a principle of natural law but which in actual fact is known through inclination, not through rational deduction, is part of natural law; but that a percept which is known through rational deduction, and as a conclusion conceptually inferred from a principle of natural law, is part of the ius gentium. . . . The prohibition of murder, in so far as this precept is known by inclination, belongs to the natural law. The same prohibition of murder, if this precept is known as a conclusion rationally inferred from a principle of natural law, pertains to the ius gentium.
Maritain, 63-64.

The ius gentium can, however, go beyond the natural law's knowledge by inclination and derive certain laws that may be called the "common law of civilization" that have a direct tie to the natural law, though their knowledge is gained entirely through human reason, that is, conceptual, discursive reasoning. And these laws can have great dignity and value. As an example, Maritain cites to the due process notion that one ought not to be condemned with out a hearing or to the precept that prisoners of war should be treated humanely. These are two examples of rules that are known, not through inclination or connaturality, but through discursive reason starting from principles of natural law. These sorts of laws therefore partake in the dignity of the natural law with respect to their existence, but the knowledge of them is derived by different means.

Just like the ius gentium has one foot in virtual law and one foot in formal law, the ius gentium "belongs at once to the moral order and to the juridical order." Maritain, 51. It is "based upon the natural order of morality, but it emanates necessarily from this order as the first formal juridical order." Maritain, 51. It thus binds men both morally and legally. The ius gentium "presupposes a debitum morale, a moral obligation appealing to conscience, before the legal obligation, debitum legale." Maritain, 51. The ius gentium is not, however, necessarily written. This law, however, whether written or not, is "first of all formulated in the common conscience by human reason in its legislative role, making the law known through its own conceptual means." Maritain, 51. (This is one reason why Maritain calls it a "common law of civilization"). But the fact that it may be unwritten does not make it less binding juridically. The ius gentium "may be formulated juridically; in fact, it seeks to be, but is not necessarily so formulated." Maritain, 51.** It is the ius gentium as well as the natural law proper that governed and justified the Nuremberg trials in 1945, genocide being recognized as a delictum ius gentium, a crime against the law of nations.

From the ius gentium, Maritain next analyzes the human positive law, a law that, in both its source and its knowledge, is derived from human reason. This will be the subject of our next posting.
*Maritain's use of the term ius gentium is much broader than the international "law of nations." He sees the term as encompassing a sort of "common law of civilization." He also finds it "absurd to reduce the law of nations to the laws of international morality." Maritain, 51. He would place in the ius gentium "every norm of conduct which is universally valid, but which is known to common consciousness because necessarily deduced by human reason [from the natural law fundamental principles]." For this reason, the term ius gentium will be used herein instead of the term "law of nations."
**Maritain thus anticipates its formulation in a "code of a supranational world society whose tribunals would be required to enforce" the ius gentium. Maritain, 51.

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