Positive law has its origin in regard for utility, while unwritten law
finds its source neither in this nor (directly) in the will of God,[1] but
in the rational nature of man. Man is by nature social, and, as a rational
being, possesses the impulse toward ordered association. Unlawful means
whatever renders such association of rational beings impossible, as the
violation of promises or the taking away and retention of the property
of others. In the (pre-social) state of nature, all belonged to all, but
through the act of taking possession _(occupatio)_ property arises (sea and
air are excluded from appropriation). In the state of nature everyone has
the right to defend himself against attack and to revenge himself on the
evil-doer; but in the political community, founded by contract, personal
revenge is replaced by punishment decreed by the civil power. The aim of
punishment is not retribution, but reformation and deterrence. It belongs
to God alone to punish because of sin committed, the state can punish only
to prevent it. (The antithesis _quia peccatum est_--_ne peccetur_ comes
from Seneca.)

[Footnote 1: Natural law would be valid even if there were no God. With
these words the alliance between the modern and the mediaeval philosophy of
law is severed.]

This energetic revival of the distinction already common in the Middle Ages
between "positive and natural," which Lord Herbert of Cherbury brought
forward at the same period (1624) in the philosophy of religion, gave the
catchword for a movement in practical philosophy whose developments extend
into the nineteenth century. Not only the illumination period, but all
modern philosophy down to Kant and Fichte, is under the ban of the
antithesis, natural and artificial. In all fields, in ethics as well as in
noëtics, men return to the primitive or storm back to it, in the hope of
finding there the source of all truth and the cure for all evils. Sometimes