Lex Naturalis and Ius Naturale

School of Canon Law and Columbus School of Law, Catholic University of America 1 Since my home is two blocks away from the steam plant I have mixed feelings about efforts to guarantee its continued existence. 569 The Jurist 68 (2008) 569–591 LEX NATURALIS AND IUS NATURALE Kenneth Pennington After the air attacks of September 11, 2001 the United States government decided to fortify all public government buildings and spaces of importance in Washington, D.C. that might be targets of future attacks. The expenditures for these projects ran to millions of dollars and included the White House, Congress, and the Supreme Court. These extensive fortifications were inspired by widespread fear at all levels of the American government that extreme measures were needed to protect themselves and government buildings. This culture of fear quickly became an accepted part of American political discourse. Fear was no longer cowardly; it became a badge of courage. Streets around government buildings were closed. Streets that remained open were provided with retractable barriers. A security cordon around the White House was greatly expanded. The public was denied entrance to the grand staircase on the West side of the Capitol buildings. Armed police were placed on every corner of Capitol Hill twenty-four hours a day. To secure perimeters metal bollards were placed around buildings and public spaces at a cost of $10,000 each. They could not protect against air attacks or suicide bombers—only truck and car bombs—but that fact did not deter the frenzy of construction that still continues. Thousands of bollards were put in place. The directors of every government agency stumbled over one another to arrange that their spaces be surrounded by these symbols of fear. The question that every director in Washington must have asked themselves again and again was “How could their buildings be bereft of these symbols that made a public statement of their importance?” Even the coal burning steam plant on Capitol Hill—the worst source of pollution in Washington—was fortified.1 The bollards around the Supreme Court were the only ones decorated with a Latin word: Lex. Why did the judges choose lex and not ius for those protective fences? To answer that question we have to go back to the Renaissance of law in the twelfth century. Ius and lex were terms of Roman law. The first jurist to examine lex and ius in detail was named Gratian who taught canon law in Bologna. In the first half of the twelfth century he compiled a 2 Gratian, Decretum, ed. Emil Friedberg (Leipzig: B. Tauchnitz, 1879, repr. Graz: Akademische Druck- undVerlagsanstalt, 1959), D.1 d.a.c.1: “Humanum genus duobus regitur , naturali uidelicet iure et moribus. Ius naturae est, quod in lege et euangelio continetur , quo quisque iubetur alii facere, quod sibi uult fieri, et prohibetur alii inferre, quod sibi nolit fieri. Unde Christus in euangelio: ‘Omnia quecunque uultis ut faciant uobis homines, et uos eadem facite illis. Haec est enim lex et prophetae.’ [Matthew 7:12, cf. Luke 6:31]” 3 Stephan Kuttner, “Sur les origines du terme ‘droit positif’,” Revue historique du droit français et étranger 15 (1936) 728–740. See also John Marenbon, “Abelard’s Concept of Natural Law,” Mensch und Natur im Mittelalter, ed.A. Zimmermann andA. Speer (Miscellanea Mediaevalia 21; Berlin-NewYork: Walter de Gruyter, 1991) 609–621. 4 Justinian’s Digest, ed. Alan Watson (Philadelphia: University of Pennsylvania Press, 1985) 1.1.9 “Gaius 1 inst. Omnes populi, qui legibus et moribus reguntur, partim suo proprio, partim communi omnium hominum iure utuntur. Nam quod quisque populus ipse sibi ius constituit, id ipsius proprium civitatis est vocaturque ius civile, quasi ius proprium ipsius civitatis: quod vero naturalis ratio inter omnes homines constituit, id apud omnes peraeque custoditur vocaturque ius gentium, quasi quo iure omnes gentes utuntur.” Tractatus de legibus with which he introduced his students to law. He explored the different meanings of ius and lex for the first time in European jurisprudence. Gratian began his Tractatus with a statement that would remain a standard statement for centuries:2 The Human Race is ruled by two things: namely, natural ius and mos. The ius of nature...