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PART ONE: History of the Idea of Natural Law - Heinrich Rommen, The Natural Law: A Study in Legal and Social History and Philosophy 
The Natural Law: A Study in Legal and Social History and Philosophy, trans. Thomas R. Hanley. Introduction and Bibliography by Russell Hittinger (Indianapolis: Liberty Fund 1998).
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History of the Idea of Natural Law
The Legacy of Greece and Rome
The doctrine of the natural law is as old as philosophy. Just as wonder,1 according to Aristotle, lies at the beginning of philosophy, so, too, is it found at the beginning of the doctrine of natural law.
‡In the early periods of all peoples the mores and laws, undifferentiated from the norms of religion, were looked upon as being exclusively of divine origin. The order according to which a people lives is a divinely instituted order, a holy order. This is true of the ancient Greeks, among whom all law was stamped with the seal of the divine. It likewise holds good for the early Germans: their law bore in the primitive period a distinctly sacred character. Nor is it any less true of the Roman people, whose legal genius enabled its law twice to become a world law.2 For among the Romans, too, law in the earliest times was divine law. Moreover, even the later period, when the Romans had already hit upon the distinction between strictly sacred law (fas) and profane law (ius), still afforded clear evidence of the sacred origin of Roman law: the pontifices remained the dispensers and custodians of the law until Roman legal reason emancipated itself from this secret law of the priests.
This theological cast of all primitive law has two characteristics. Such law is essentially unchangeable through human ordinances, and it has everywhere the same force within the same cultural environment.
The idea of a natural law can emerge only when men come to perceive that not all law is unalterable and unchanging divine law. It can emerge only when critical reason, looking back over history, notes the profound changes that have occurred in the realm of law and mores and becomes aware of the diversity of the legal and moral institutions of its own people in the course of its history; and when, furthermore, gazing beyond the confines of its own city-state or tribe, it notices the dissimilarity of the institutions of neighboring peoples. When, therefore, human reason wonderingly verifies this diversity, it first arrives at the distinction between divine and human law. But it soon has to grapple with the natural law, with the question of the moral basis of human laws. This is at the same time the problem of why laws are binding. How can laws bind the conscience of an individual? Wherein lies, properly speaking, the ethical foundation of the coercive power of the state’s legal and moral order? Closely connected with these problems is the question of the best laws or best state, a matter which from the time of Plato has engaged the attention of nearly all exponents of the great systems of natural law. Before long, however, a related idea made its appearance. This was the view that the tribal deities are not the ultimate form of the religious background of reality. For if an eternal, immutable law obliges men to obey particular laws, behind the popular images of tribal deities exists an eternal, all-wise Lawgiver who has the power to bind and to loose.3
It is quite understandable, then, that the philosophical conception of the natural law should have made its first appearance in the area of Western culture among the ancient Greeks. This dynamic people was endowed with a penetrating critical intelligence, with an early maturing consciousness of the individual mind, and with great power of political organization. Indeed, Western political philosophy likewise originated in this gifted people.
It is a remarkable fact that at the very beginning of the Greek philosophy of law (or rather of the laws), and therewith of the natural law, a distinction came to light which has survived down to the present time, a distinction between two conceptions of the natural law. One is the idea of a revolutionary and individualistic natural law essentially bound up with the basic doctrine of the state of nature as well as with the concept of the state as a social unit which rests upon a free contract, is arbitrary and artificial, is determined by utility, and is not metaphysically necessary. The other is the idea of a natural law grounded in metaphysics that does not exist in a mythical state of nature before the “laws,” but lives and ought to live in them—a natural law which one would fain, though somewhat ineptly, style conservative. It is further significant that the notion of God as supreme Lawgiver is intimately connected with the latter conception. Both of these tendencies are already plainly visible in the first Sophists and in Heraclitus, the great forerunner of Plato.
Heraclitus of Ephesus (cir. 536–470 b.c.) is famous for his thesis that “all things flow; nothing abides.” But this ceaseless changing of things led him directly to the idea of an eternal norm and harmony, which exists unchangeable amid the continual variation of phenomena. A fundamental law, a divine common logos, a universal reason holds sway: not chance, lawlessness, or irrational change. Natural occurrences are ruled by a reason that establishes order. Man’s nature as well as his ethical goal consists, then, in the subordination or conformity of individual and social life to the general law of the universe. This is the primordial norm of moral being and conduct. “Wisdom is the foremost virtue, and wisdom consists in speaking the truth, and in lending an ear to nature and acting according to her. Wisdom is common to all. … They who would speak with intelligence must hold fast to the (wisdom that is) common to all, as a city holds fast to its law, and even more strongly. For all human laws are fed by one divine law.”4 The laws of men are but attempts to realize this divine law. Wherefore, declares this conservative aristocrat, the people ought not to resist the laws, which to him are the embodiment of the divine law. On the contrary, “the people ought to fight in defense of the law as they do of their city wall.”5 Thus in the diversity of human laws (not beyond them) there flashed upon Heraclitus the idea of an eternal law of nature that corresponds to man’s reason as sharing in the eternal logos. The variety of human laws does not exclude the idea of the natural law. For through the contingency and diversity of human laws rational thought perceives the truth of the eternal law, whereas sense perception—the eye and the ear—notices only what is different and unlike. With Heraclitus, the “Obscure Philosopher,” the thinker who speaks in obscure symbols, the idea of the natural law for the first time emerged as a natural, unchangeable law from which all human laws draw their force.
Heraclitus’ doctrine had a practical aim. It was intended to stress the value of the laws and their binding force against the fickleness of the uncritical masses. Prone to novelties of all kinds and woefully lacking in powers of discrimination, the masses were subject to capricious fluctuations of opinion. They thus fell easy prey to the demagogy of the Sophists.
It is no easy matter to judge the Sophists fairly. For one thing their teachings have come down to us in a very fragmentary form and are known to us chiefly from the dialogues of Plato, their great adversary. Moreover, as popular orators with a leaning toward demagogy, they were fond of oversimplified slogans and paradoxical statements. This earned for them, among posterity, the sinister reputation of philosophical ropedancers, rationalistic revolutionaries, and contemners of the law. For this reputation Plato has been particularly responsible. But this judgment is, to say the least, far too harsh. That the Sophists had of necessity to appear to the Greeks as revolutionary rationalists is explained, on the one hand, by their reckless criticism of contemporary social institutions and their cynical skepticism in political matters, and, on the other, by the high esteem in which their opponents held the laws and the polis, or city-state.
Their laws were the pride of the citizens of the Greek polis, and the Sophists were mostly foreigners. Heraclitus had looked upon the laws as equal in worth to the walls of the city. The philosophers spoke of the nomoi, or laws, with the greatest respect: the peoples who had no polis were to them barbarians. Hence it happened, too, that Socrates, despite his distinction between what is naturally right and legally right, pronounced the laws of Athens to be “right” without qualification. The citizens, consequently, were under obligation to obey them, even as he also obeyed them to the bitter end. For Plato likewise the laws of Athens were for the most part something inviolable. He regarded the social order founded upon them as good, even if capable of improvement; never did he term it bad. Therefore to these aristocrats in political outlook as well as in thought, the social criticism of the Sophists necessarily passed not only for an attack upon the foundations of a particular order of a particular polis, but also for a malicious assault upon the right order of the polis itself.
Moreover, in point of fact the Sophists had much in common with the revolutionary natural-law ideas of the eighteenth-century Enlightenment, especially with Rousseau’s doctrine and its reckless criticism of existing society. In the case of the conservative natural law (if one wishes to speak of a political tendency) the distinction between natural and positive law served to justify and improve the existing positive law. It was, however, the tendency, an avowedly political tendency, of the natural-law concept of the Sophists to point out, by contrasting the current positive law with what is right by nature, not merely the accidental need for reform of the laws but the substantial wrongness of the laws. To the Sophists the laws were not venerable because of tradition or by reason of having stood the actual test of life in the city-state: they were artificial constructs and served the interests of the powerful (Thrasymachus). Thus the laws possessed no inherent value, for only what is right by nature can have such value, and to this the Sophists were continually appealing. They did not deny, therefore, the form of the natural law and of what is moral by nature. They merely brought out the sharp contrast between the prevailing order of the city-state and the natural law as they preached it, and they ridiculed Socrates who looked upon the laws of Athens as purely and simply “just.” Callicles, who was the first to advance the thesis that might makes right, wished thereby to give expression to a fact which he was criticizing. This was that the ruling classes, while they declared their laws, i.e., those which worked to their advantage, to be naturally just, were misusing the idea of truly natural justice, and were desirous only of subjecting the people to their class interests.
By contrasting, in the light of their social criticism, what is naturally right with what is legally right, the Sophists attained at this early date to the notion of the rights of man and to the idea of mankind. The unwritten laws, said Hippias, are eternal and unalterable: they spring from a higher source than the decrees of men. To Hippias’ way of thinking, all men are by nature relatives and fellow citizens, even if they are not such in the eyes of the law. Therewith the distinction between Greeks and barbarians, fundamental for Greek cultural consciousness, vanished into thin air. “God made all men free; nature has made no man a slave” (Alcidamas). The whole ethical and legal foundation was thereby taken away from slavery, which was in turn the very basis of the Greek social and economic system. Nevertheless Plato held fast to the institution of slavery, and Aristotle was ever striving to justify it by means of his theory that certain men are slaves by nature.
Three ideas, heavily charged with social explosives for the world of Greek culture, were thus put forward by the Sophists as part and parcel of the natural law. These ideas were thenceforth to be subjected to a ceaseless reprocessing in the history of the mind. Time and again they were to serve revolutionary thinkers as molds and vessels into which these could pour their revolutionary emotions, their schemes for reform, and their political aims. The first idea was that the existing laws serve class interests and are artificial constructions. Only what is naturally moral and naturally right can be properly called moral and right. Next came the idea of the natural-law freedom and equality of all human beings and, as a consequence, the idea of the rights of man as well as the idea of mankind, the civitas maxima, or world community, which is superior to the city-state. According to the third idea, the state, or polis, is nonessential: it owes its origin to a human decision, i.e., to a free contract, not to a necessity of some kind. The political organization of man must therefore have been preceded by a state of nature (portrayed optimistically or pessimistically), in which the pure natural law was in force. According to the optimistic view of the state of nature, this law can in its essential contents be neither altered not abrogated by the state; in the pessimistic view, which leads to positivism, it is merged in the will of the state. But after the lofty flight of speculation had been exposed to the needed self-criticism, the successors of the Sophists fell quickly into skepticism and into a sheer positivism when the underlying optimistic outlook ran afoul of the facts. This was, for instance, the case with the Epicureans, who were the first legal positivists.
The Sophists’ criticism of the positive laws, together with the rapidly growing prominence of the notion of utility, led Epicurus, whose sensistic epistemology left no room for metaphysics, to doubt that anything can be objectively and naturally right. Utility and pleasure became for him the sole principles of ethics and law. But since the resultant subjectivism must endanger the social order and with it the peaceful enjoyment of pleasure, he inferred from the principle of utility that justice as such is a chimera, that it rather exists only in agreements which have been entered into for the prevention of mutual injuries. Justice thus consists entirely in positive laws. Before men entered into agreements and before there were laws founded upon such agreements, men had lived in a haphazard manner, like wild beasts, lawlessly. The state of nature, upon which the Sophists had placed an optimistic construction but which they had not particularly stressed, was thus interpreted in a pessimistic sense in Epicurean circles. From this, however, sprang also the respect of the Epicureans for the existing laws as well as their emphasis upon the value of the legal notions and customary law of individual peoples. The parallelism between the Sophist and Epicurean doctrine on the one hand and, on the other, the natural-law schools of modern times is quite unmistakable. Rousseau, Hobbes, Pufendorf, Thomasius, and the adherents of historical schools of law, who variously combine the elements of individual systems, merely repeat and develop these ancient ideas.
The starting point of the Sophists was a criticism of the nomoi of the Athenian democracy. In their role and guise of popular philosophers and in their political and skeptical snobbery they frequently defended the opposite theories. As if the revolutionary criticism of the nomoi in behalf of slaves and non-citizens, considered barbarians, and the conservative utilitarianism of Epicurus were not sufficiently unsettling, Callicles, if we are to trust tradition, stood forth as champion of the doctrine of the right of the stronger, i.e., that might makes right. A pure materialist in his philosophy, Callicles reached the conclusion that law, such as obtained in the Athenian democracy, was in reality injustice. For, he contended, the many who are weak have united to fetter with the bands of law the few who are strong. But nature teaches, as a glance at the animal kingdom and at warring states reveals, that the stronger naturally overcomes the weaker. Natural law, then, is the force of the stronger. For this snobbish leader of the oligarchic faction such was the way one could and should get at the Athenian democracy. But other Sophists, among them Hippias, put forward the demagogic formulas of human rights and of the freedom and equality of all to achieve the selfsame purpose—the overthrow of the bourgeois democracy.6
The metaphysical natural law of Plato as well as the more realistic one of Aristotle formed the high-water mark of moral and natural-law philosophy in Greek civilization. Stoicism, on the other hand, in a remarkable eclectic synthesis of single principles drawn from many philosophers, furnished in its system of natural law the terminology or word vessels into which the Church Fathers were able to pour the first conceptions of the Christian natural law and to impart them to the world of their time.
The danger of skepticism, to which the extreme rationalism of the Sophists lay exposed, was first clearly perceived by Socrates. The Sophists’ juggling of ideas and their paradoxes threatened to dissolve the notion of goodness and morality, just as their extremist social criticism and their libertarian ideology, directed in the name of the natural law against law and custom, called into question the value of the nomoi. Socrates did not merely teach the essence of goodness and justice by his inductive, question-and-answer method. Through the thesis that virtue consists in knowledge, he also showed that there exists a knowable objective world of such values as goodness, beauty, and justice, and that no one does evil for evil’s sake but because it somehow, culpably or through ignorance, appears to him as good. Wherefore knowledge means the contemplation of the idea of justice, and so on. The daimonion, conscience and its voice, he regarded as a reflection and testimony of these ultimate values and of the divinely instituted order of the world. Herein lies the significance of Socrates for the idea of the natural law. It does not lie in his frequently stressed fidelity to the law, although, to counteract the criticism of the Sophists, he placed so much emphasis upon the value of the laws that, out of respect for the law’s function of safeguarding right, he went so far as to condemn absolutely any disobedience to a particular unjust law.7
The great masters of Greece, Plato and Aristotle, also directed their attacks at the Sophists and their destructive criticism. Plato and Aristotle were chiefly, though not in the same degree, concerned with goodness and with its realization in the state. Their interest, however, did not center in the individual. It is quite common, rather, to speak of both as leaning toward state socialism or totalitarianism. For them, then, in accordance with the idea of order, the first and fundamental aim of justice is not freedom for its own sake, but order. Freedom is aimed at only so far as it realizes order. For this reason the law occupied the foreground of their thought. They were at great pains to discover and to establish the ethical basis of the laws; not like the Sophists, however, in the interest of freedom from the laws. The state and its order as the sphere of morality, as the realization of all virtue, engaged their attention. This explains their preoccupation with the best form of state or government, in which the individual, whom the Sophists made so much of, is swallowed up. If we should think of the natural law in terms of its long accepted identification with socio-philosophical individualism, there would really be little room for the idea of the natural law in Plato or even in Aristotle.
A deeper penetration into the thought of Plato and Aristotle will show, however, that they too distinguish between what is naturally just and what is legally just. Nor is this distinction merely a borrowed formula: it is an integral part of their doctrinal structure. Yet in the case of both we can observe a certain aversion to the “naturally just,” which is accounted for by the Sophists’ abuse of this distinction, an abuse which Plato severely censured.
The disciples of Socrates arrived at the notion of something naturally just by quite another route than the one the Sophists had taken. They arrived at it by way of the doctrine of ideas and through teleological thinking. Following in the footsteps of Heraclitus, Plato acknowledges the world of the senses and the world of ideas that become manifest in intellectual contemplation. For speculative reason, sense phenomena are the bridge of memory to the ideas, which dwell and live on in their supermundane, heavenly abode. The things of this world are or exist only so far as they participate in the being of the eternal ideas, or so far as man in his creative capacity of craftsman, artist, and especially lawmaker copies these ideas. Here teleological thinking enters the scene. In the concept which gropes after and apprehends the essence or the idea of the thing there is contained at the same time also its end, the completion or perfection of the idea of the thing. Inversely, too, the mind lays hold of the essence of a thing by finding the ideal concept which corresponds exactly to the literal meaning. Hence we speak of the true physician, the true judge, the true lawmaker, the true law. These two starting points of Platonic speculation lead then to such conclusions as that the judge ought to be a true judge, i.e., he ought to complete in himself the idea of judge. The ideal concept becomes a norm. So declares the Athenian in Plato’s Laws: “When there has been a contest for power, those who gain the upper hand so entirely monopolize the government as to refuse all share to the defeated party and their descendants. … Now, according to our view, such governments are not polities at all, nor are laws right which are passed for the good of particular classes and not for the good of the whole state. States which have such laws are not polities but parties, and their notions of justice are simply unmeaning.”8 The law should be a true law: one that benefits the common weal. Therein its idea achieves its completion. Thus Plato contrasts the true and proper law with the positive law, and he makes the former the measure and criterion of justice for the latter.
This true law, this true right, abides in the realm of the ideas and remains forever the same. On the other hand, the positive laws change, and they may claim legal force only because and so far as they partake of the idea of law. Indeed they are but a reflection of true law. The lawmaker must look up into the realm of the ideas, where dwells the real essence of the immutable, eternally valid law. However, philosophers and philosopher-kings, freed through disciplined thinking from the blinding illusions of the senses, can alone do this. Moreover, this world of ideas, whereof the world of sense appears only as an imperfect copy, is kosmos, or order; it is not akosmia, or disorder. But this order of the ideas is the pattern for the fashioning of moral and legal conduct in the present world. The being of the ideas is oughtness for man who shapes things in accordance with contemplative knowledge, whether he forms himself or a community unto goodness. Underlying all this, of course, is the conception of a human nature with impaired powers of contemplation. Only the man of disciplined mind, not the great mass of men, can see intellectually. This doctrine is the opposite of the optimism of the Sophists. If Plato, then, scarcely ever makes use of the Sophists’ antithesis of physis and nomos, he by no means identifies the natural law, which he recognizes, with the positive law.
The difference between Plato and the Sophists lies elsewhere. The Sophists started from the freedom of the individual, who had to be liberated from traditional religious and politico-legal bonds. For the polis, the state, is not something eternal, nor is its law. It is mankind that is eternal: the civitas maxima of free and equal men. In the eyes of Plato, however, the polis and its law were the indispensable means for realizing the idea of humanity, which reaches completion in citizenship, in the ethical ideal of the citizen, of the law-abiding and just man. The state is the great pedagogue of mankind. Its function is to bring men to morality and justice, to happiness in and through the moral virtues. Hence Plato’s thought revolves continually around the idea of the best state or government. But this is also why he recognizes a natural law as ideal law, as a norm for the lawmaker and the citizen, as a measure for the positive laws. His metaphysics and the ethical system which he built thereon made a natural law possible and furnished the foundation.
Aristotle passed for centuries as the “father of natural law.” St. Thomas, in that section of his Summa theologica which deals with law, repeatedly appeals to him as the Philosopher par excellence. Aristotle, however, as should now be clear, was not the father of the natural law. Nevertheless his theory of knowledge and his metaphysics have provided ethics, and consequently the doctrine of natural law, with so excellent a foundation that the honorific title, “father of natural law,” is readily understandable.
Plato had totally separated the world of sense perception from the world of pure ideas, the objects of scientific, necessary, and true knowledge (universalia ante rem). Aristotle transferred the idea as the form which determines the formless matter into the individual (universalia in re). This “becomes” through the union of the form (or the essence or the true whatness) with the matter (or the potency or the possibility) and thus gives actuality to the individual. The archetype for Aristotle was human artistic activity: the architect who constructs a house according to the plan in his mind; the sculptor who molds a statue in accordance with his artistic conception; even organic nature which causes the plant to grow from the actualizing essential form that exists in the seed in an incorporeal manner. Aristotle wished to comprehend motion, development, becoming. To him, therefore, the essence, and the perfect expression of it in the individual, is also the telos, or end. The form is thus the efficient and the final cause at one and the same time. Applied to the domain of ethics, however, this means that pure being or the pure essential form is likewise the goal of becoming for the man who is to be fashioned by education into a good citizen. From the essential being results an oughtness for the individual man. In this way, from the content of the primary norm, “strive after the good,” arises the norm, “realize what is humanly good,” as it appears in the essential form of man. The supreme norm of morality is accordingly this: Realize your essential form, your nature. The natural is the ethical, and the essence is unchangeable.
But a criterion of actions is thereby established. Some actions correspond to nature, and hence are naturally good; others are repugnant to nature, and hence are naturally bad. This settled, Aristotle advances to the distinction between what is naturally just and what is legally just. Both are objects of justice. Justice, however, taken in the narrower sense (for in the wider sense the virtuous man is the just man purely and simply) and distinguished from morality, is directed to the other, to the fellow man, whether as equal (commutative justice) or as fellow member of the comprehensive polis-community (distributive and, in the behavior of the member with regard to the whole, legal justice). It finds expression in the natural law and in the positive law. The latter originates in the will of the lawmaker or in an act of an assembly; the natural law has its source in the essence of the just, in nature. That which is naturally right is therefore unalterable. It has everywhere the same force, quite apart from any positive law that may embody it. Statute or positive law varies with every people and at different times. Yet the natural law does not dwell in a region beyond the positive law. The natural law has to be realized in the positive law since the latter is the application of the universal idea of justice to the motley manifold of life. The immutable idea of right dwells in the changing positive law. All positive law is the more or less successful attempt to realize the natural law. For this reason the natural law, however imperfect may be its realization in the positive law, always retains its binding force. Natural law, i.e., the idea and purpose of law as such, has to be realized in every legal system. The natural law is thus the meaning of the positive law, its purpose and its ethically grounded norm.
Recognition of the fact that no system of positive law is altogether perfect brought Aristotle to the principle of equity. The law is a general norm, but the actual matters which it has to regulate issue from the diversity of practical life. Of necessity the positive law exhibits imperfections; it does not fit all cases. Equity thereupon requires that the individual case get its right, i.e., that the imperfection of the formal law be overcome by means of material justice, through the content of the natural law. Thus Aristotle already viewed the judge’s function of filling up gaps in the law as an attempt to apply the natural law—if indeed the positive law is rightly to bear the name of law at all. The gaps are consequently the gateways through which the natural law continually comes into play. In such cases the judge has to decide in accordance with the norm which the true lawgiver would himself apply if he were present; the true lawgiver of course is always assumed to will what is just. This is a celebrated formula which in these very words or in the form, “which he [the judge] would lay down as lawmaker,” still found its way into the great codifications of civil law undertaken in the nineteenth and twentieth centuries (e.g., the Austrian and Swiss Civil Codes).
Concerning the content of the natural law Aristotle had as little to say as Plato. This was in sharp contrast to the Sophists, who because of their political and socio-critical bias had admitted many reform proposals and demands into their natural law. The silence of Plato and Aristotle finds its explanation in their idea of the natural law: they set out from the conservative conviction that the positive law wishes to realize the natural law. Added to this was their strong belief in the excellence of the existing laws of the polis as well as in the conformity of such laws to the natural law. The city-state, its general welfare, and its happiness occupied so prominent a place in the ethical thinking of Plato and Aristotle—for whom indeed the idea of man achieves ultimate perfection in the good citizen—that they looked upon the existing laws as something holy. In contrast to the individualistic attack launched by the Sophists against them, the natural law of Plato and Aristotle served precisely to justify the existing laws and not merely as a basis for criticizing them, although the function of criticism was regarded as included in the idea of natural law. Furthermore, for Aristotle as for Plato the polis or city-state was the great pedagogue, against which, strictly speaking, no natural, subjective right of the citizen could be admitted. They acknowledged no goal of man that transcends the ideal polis. They remained state socialists. Their doctrine of natural law was from the political standpoint conservative, but it was based on metaphysics. With the effective discovery, through Christianity, of human personality and with the recognition of God’s intellect and will as the source of the natural moral law, rational thought would thenceforth be in a position to work its way through to the true natural law.
In the public squares of Athens and on the steps of its public buildings the wordy Sophists had once taught their rationalistic philosophy, their revolutionary natural-law doctrine. In the same places Socrates, the “lover of wisdom,” and Plato and Aristotle, following him, had risen up against the skepticism that was already making its appearance among the Sophists, a skepticism evoked by the doctrine of man as the measure of all things9 and by the resultant subjectivism in epistemology and ethics. This trio of thinkers had anchored anew in philosophy the natural law which at the hands of the Sophists had been threatening to decline into a mere rationalization of political interests.
With the disappearance of these intellectual giants from the scene, however, the Skeptics, the positivists of their day, began at once to hold forth in the same halls and gardens of the Academy at Athens. The senses, they taught, do not convey true knowledge but only illusion; even reason does not guarantee the truth and certitude of knowledge; certainly, then, truth cannot arise from the illusions of both the senses and reason. All laws, whether of art, speech, morality, or right, are arbitrary. They have their origin in mere agreement, and they vary with the change of the free will which establishes them. As no assertion is of more value than its opposite, so, too, no law is worth any more than its opposite. Likewise, since we cannot perceive the essence or nature of things and of man, a natural law is impossible.
Skepticism attained its highest point in the teaching of Carneades (cir. 215–125 b.c.), who for a long time was scholarch at Athens. About 155 b.c., in Rome, he directed his attacks against the natural-law doctrine of the Stoics, a contest which he had made the principal mission of his life. There he won fame through his pro-and-con method of demonstration, whereby he strove to heap ridicule upon the notion of justice. One of his most celebrated arguments was drawn from the borderline case known as “the plank of Carneades.” At a time of shipwreck two persons swim to a plank and grasp it simultaneously. But the plank can hold up and save only one of the two. In the light of this case what is right, and who has the right to the plank? Both and neither, he answered, in such a case of dire necessity and self-preservation. (Seventeen centuries later Suarez furnished the correct solution: the order of justice here terminates, and the order of charity governs the case.) Positivism in ethics and law reached its climax with Carneades, again in connection with the repudiation of objective knowledge of reality and essences and with the denial of metaphysics.
Stoicism prepared the way for the Christian natural law. It was founded in Greece as a school of philosophy by Zeno, who lived from about 340 to 265 b.c. It came to its full flowering in Rome in the imperial age. The great figures of Seneca and the emancipated slave Epictetus as well as the appealing personality of Emperor Marcus Aurelius there adorned the Stoic school. Cicero, however, was its great popularizer, and the wealth of Stoic thought was handed down to the medieval world mainly in his writings. Stoicism, moreover, greatly influenced the various schools of Roman jurisprudence. The passages of Roman law which touch the natural law have their source mostly in Stoic philosophical literature.
‡Stoicism thus reached its height at a time when the society of the ancient world was definitively splitting into two classes. On the one side stood the plebeian proletariat, kept tractable by largesses of food and other articles and by shows; on the other side stood the new aristocracy and bourgeoisie, largely given over to unrestrained pleasure-seeking and vice. Over both classes, deified and sometimes crazed Caesars eventually established a despotic rule. This environment conditioned the eclecticism of the Stoa, that circle of the few from all ranks and provinces of the world empire who placed the idea of a virtuous life and of attaining happiness of mind through the true, the good, and the beautiful above base sensuality, pursuit of wealth, and pride of life. The Stoics were individualists but, unlike the Sophists, they were not militantly opposed to the polis; indeed, the city-state no longer existed, only the world empire. Therefore they extolled, besides the individual, the social impulses and feelings. They drew upon and assimilated the intellectual goods of Heraclitus, Socrates, Plato, and Aristotle.
The core of Stoic teaching is ethics with its Socratic and, in final analysis, general Greek stamp of intellectualism, according to which correct knowledge is the basis of ethics, and the unity of knowledge and conduct forms the ideal of the sage. This last and most striking representative of the spirit of the declining civilization of antiquity comes closest to the grander representative of Christianity, the saint.
The sage is the man who carries his happiness within himself, who in inner self-sufficiency remains undisturbed by external events. Knowledge and conduct are not dependent on the irregular influences of the world: the sage is calm, unmoved by passion. It is owing to the passions and their excesses that clearness of perception and judgment becomes impossible. For this reason man does not attain to a clear knowledge and judgment of what is truly worth striving for. This consists essentially in conformableness to the rational nature of the sage. Virtue consists in the positive determination of conduct through will power in accordance with rational insight into man’s essential nature. Virtue is right reason. Nature and reason are one. Right reason and the universal law of nature, which holds undisputed sway throughout the universe, are also one. Obedience to the eternal world law in a life lived according to reason: such, embraced with religious fervor, is the ethical principle of Stoicism. It thus means to live in harmony with oneself, to live in accordance with one’s rational nature; for the latter manifests the world law.
Law, too, has its basis in nature. Man has an inborn notion of right and wrong, and law in its very essence rests not upon the arbitrary will of a ruler or upon the decree of a multitude, but upon nature, i.e., upon innate ideas (non scripta sed nata lex).10 Cicero (106–43 b.c.) was the interpreter and transmitter of the Stoic doctrine of natural law. The lex nata, the law within us, he regards as the foundation of law in general. It is not to be gathered, as a general concept by way of abstraction, from the law of the Twelve Tables or from the praetor’s edict—that is, from the positive law—but ex intima philosophia. Since it is identical with right reason, it is universally valid, unchangeable and incapable of being abrogated; for its author is the divine reason itself—taken, of course, in a pantheistic, impersonal sense. It is also called eternal law. Cicero could thus write: “If the principles of Justice were founded on the decrees of peoples, the edicts of princes, or the decisions of judges, then Justice would sanction robbery and adultery and forgery of wills, in case these acts were approved by the votes or decrees of the populace. But if so great a power belongs to the decisions and decrees of fools that the laws of Nature can be changed by their votes, then why do they not ordain that what is bad and baneful shall be considered good and salutary? Or, if a law can make Justice out of Injustice, can it not also make good out of bad? But in fact we can perceive the difference between good laws and bad by referring them to no other standard than Nature: indeed, it is not merely Justice and Injustice which are distinguished by Nature, but also and without exception things which are honourable and dishonourable. For since an intelligence common to us all makes things known to us and formulates them in our minds, honourable actions are ascribed by us to virtue, and dishonourable actions to vice; and only a madman would conclude that these judgments are matters of opinion, and not fixed by Nature.”11 Time and again the gifted rhetorician contrasts in this manner the law of nature, as the measure and inner source of validity, with the positive law, which to him is a shadow and reflected image of the true law.12
Epictetus (cir.a.d. 60–110) likewise called attention to the diversity of the laws that prevail at various times and among different peoples. He taught that the test of whether or not a law accords with nature consists in its agreement or non-agreement with reason. The laws that upheld slavery he called laws of the dead, an abysmal crime. Seneca (d. a.d. 65), in the teeth of the prevailing institution of slavery, gladiatorial combats, and shows featuring the throwing of human beings to beasts, voiced this magnificent sentiment apropos of human dignity: homo sacra res homini.13 What were originally Sophist doctrines were gaining fresh currency: the dignity of the human being and the natural-law basis of freedom and equality. Slaves, too, are men, blood relations and brethren. Like freemen, they are God’s own children, members of a great community. The city-state has thus lost its power, and with it has disappeared the differentiation of mankind into Greeks and barbarians, into freemen and slaves. “All that you behold, that which comprises both god and man, is one—we are the parts of one great body. Nature produced us related to one another since she created us from the same source and to the same end. She engendered in us mutual affection, and made us prone to friendships. She established fairness and justice.”14 A magnificent statement of the civitas maxima, the great society or world state, and of its fundamental law, the natural law! As Marcus Aurelius expressed it: “My city and country, so far as I am Antoninus, is Rome, but so far as I am a man, it is the world.”15
These Stoic views are singularly impressive in an environment that was replete with despotic brutality and contempt for man, with excesses and misuse of power, with a many-sided suppression of freedom. It is of far greater consequence, however, that they penetrated into Roman law, led to a recognition of the individual in private law, and elevated to the dignity of natural law the more liberal principles of the ius gentium which had developed out of the law of foreigners. Above all, they brought to the original tribalism and formalism of Roman law a universalism which fitted it “to survive, as a world law, the life of the nation in which it had originated” (Puchta). Among the later Stoics, too, we find the doctrine of a state of nature, a happy condition of mankind in which all the Stoic ideals of right and freedom had been realized and where the pure natural law had consequently been in force.16 The status civilis, on the other hand, with slavery organized and protected by the positive law, was looked upon as a state of affairs in which the natural law, though continuing in force, no longer holds sole sway.
In Stoicism, then, the mind of the ancient world had come to embrace whatever views Heraclitus, Plato, Aristotle, and the moderate Sophists had held regarding the natural law—all that they had taught touching the lex aeterna, recta ratio, lex naturalis, ius naturale, as well as concerning the connections of these with positive law and their evaluating force in relation to it. It thus preserved the “seeds of the Logos,” and it found the literary forms or word vessels into which the Christian spirit was to pour its own ideas, which eventually matured into a new, yet related, doctrine of natural law.
Under the influence of Stoic philosophy the doctrine of the natural law passed into Roman law. The great jurists of the golden age of Roman law were for the most part also philosophers. Through the medium of eclectic Stoicism they were acquainted with Aristotle’s teaching on justice and with Zeno’s work On the Laws; especially, however, they were familiar with the writings of Cicero, the popular philosopher of Stoicism. Besides, the forensic orators were interested in philosophy in their pleadings at the bar. Among these Cicero held first place, but there were also Q. Mucius Scaevola, Calpurnius, and Rutilius, as Cicero himself informs us. This philosophical bent is likewise evidenced by the frequency with which the jurists cite the philosophers. Gaius, for example, quotes Aristotle and Xenophon; Ulpian and Celsus quote Cicero; Paulus mentions Graeci in general. The peculiar function of the jurists, “responding,” i.e., imparting legal information and counsel to the judges and litigants alike,17 involved for the jurists this deeper kind of intellectual labor. Thus Stoic philosophy may with considerable justice be called the mother of Roman jurisprudence. The latter, to keep up the metaphor, sucked in the doctrine of the ius naturale with its mother’s milk.
Down to the time of Cicero neither science nor the natural-law doctrine had exercised any practical influence on Roman law. Then, however, theory broke in along a broad front. For Gaius, Paulus, and Marcian the ius naturae is a norm which from the very beginning lies forever imbedded in the nature of things; since it also reveals itself in things, it can be discovered in them. The Stoic idea of an eternal law of the order of the universe was present to their minds. This law emanates from the logos, which in turn is itself the law of things. The logos, moreover, expresses itself conceptually in the nature of things, and it destines them for harmony with the universe. Hence wherever two beings, whether man and thing or two men, find themselves related to each other, a rule covering what is naturally and essentially conformable to this relationship is present in the law of the logos—and is at the same time expressed a priori in the very nature of the correlates. A law rules as an ordering force in the natura rerum, in the world of both irrational and rational creatures.
This became of practical importance as a norm for positive legislation and for the deciding of cases for which the positive law contained no norm. But the natural law especially became the magic formula whereby the jurists in their responsa replaced the ancient law, which had by then become inadequate, with new law introduced under the concepts of lex naturae and aequitas. This they accomplished by means of the edict of the magistrates who were under their influence as well as through the imperial constitutions. In addition, the new law had in its favor the splendor of inherent truth or reason, the charm of simple conformity with nature, and the grandeur of transcending peoples and ages. But to the jurists aequitas was the echo of the lex naturae, the command of an inner voice through which speaks the ratio of the natura rerum immanent in things. Aequitas is the legal conscience which speaks even when a positive norm is at hand, for it is the “meaning” of the positive law. Adjudication, or applying the law, is not a logical and automatic process of subsuming under a general norm: it is interpretation in the light of aequitas.
As material contents of the law of nature the jurists designated such things as the rules touching kinship (marriage—family), good faith, adjustment or weighing of interests (suum cuique), the real meaning of the actual will of the legal subject as opposed to the formalism of the law governing expression of will. To these may be added the original freedom and equality of all men, and the right of self-defense (vim vi repellere).
Furthermore, the jurists, e.g., Paulus, Ulpian, and Marcian, regarded the ius civile as possessing special force. Yet even according to them the ius naturae must prevail in case of conflict: what the ius naturae forbids, the ius civile may not allow; nor may the ius civile repeal such prohibition (compare the scholastic teaching: the negative precepts of the natural law are forever immutable). To be sure, this question occasioned no real trouble, since the responsa of the jurists possessed, so to speak, legislative force. Thus their doctrine of the ius naturae forthwith gained a footing, along with the finding and the judgment, in the responsa. It also took on positive form in the lex casus, in accordance with which the magistrates were thereafter to proceed in similar cases. In like manner, too, the royal judge in Anglo-Saxon lands, bearing the law, i.e., the natural law, “in the shrine of his breast,” in the very act of handing down a decision conferred positive character upon the natural law in the rule of the case.
The Roman world empire, with its toleration of the legal institutions of subject peoples, placed in the hands of the jurists still another important source of knowledge. This was the unwritten ius gentium, which arose out of actual practice and was substantially “found” by the jurists and magistrates. The ius naturale, derived from metaphysical and ethical reflection, appeared identical with the universal element in the legal systems of individual peoples. As the idea of law thus issued from ethical speculation as a teleological apriorism for the positive law, so it emerged as concept of law in the positive law through abstract treatment of the legal systems of particular peoples. This led to the ius gentium. Consequently the results which philosophical thinking arrived at by way of deduction from logos, ratio, and rerum natura turned out to be identical with the idea of law in the systems of positive law. These in turn are products of the universal, law-creating societas humana and of reason that governs in it.
The equating of ius naturae and ius gentium that is met with even in Gaius has here its origin. Ulpian, on the contrary, defined ius naturale as “that which nature teaches to all animals” (quod natura omnia animalia docuit); but this is the ordo rerum. The ius gentium thereupon becomes that part of the ius naturale which has force for mankind.18 This, however, is a product of the will of universal reason, not of the will of some particular historical lawgiver.
The Roman jurists still lacked a clear distinction between law and morality. Even the norm “worship must be paid to God” pertained to law, and so did “live honorably.” To the jurists, indeed, jurisprudence was “a knowledge of things divine and human, the science of what is just and unjust.”19
But the greatest intellectual gain stemmed directly from Stoic ethics. The Greeks, except for a few revolutionary Sophists, had regarded the citizens of the polis as the sole subjects of law. For the Roman jurists, on the other hand, it was not merely the Roman citizen who was in the true sense a subject of law, but every member of human society (the civitas maxima of the Stoics). Therefore they held that man as such is possessed of natural rights, which he continues to retain even in a state of slavery. Slavery was thereby, in contrast to Aristotle’s doctrine, a positive-law institution which could and should be displaced in keeping with being and oughtness.
Even after the revival of imperial sovereignty in the later Roman Empire (under Justinian, a.d. 527–65), the natural law remained the first, supreme, and true legal norm: the basic law of human relations, the model and ideal set before the eyes of the lawmaker for realization. But it was no longer such for the judge, who was henceforth dependent upon the law, or for the citizen. For these the positive law alone had force. Nevertheless the idea of ius naturae had so strong a hold that, in contrast with modern absolutism, as, for instance, in the doctrine of Hobbes, the lawmaker remained subject to the natural law not merely as an empty form, but as a system of content-laden norms.
It remains an eloquent proof of the eternal truth of the doctrine of natural law that Roman law, the finest legal system yet developed in the West,20 enveloped the natural law in its deepest thinking and taught it in its noblest terms.
Like Stoic philosophy, Roman law also passed on this idea to the new Christian era and to the age of scholastic philosophy, which as true philosophia perennis21 has remained the permanent home of the natural law. Scholastic philosophy has been the place of sanctuary for the natural law when arid positivism has driven the latter out of secular jurisprudence. Yet it has always come back into jurisprudence whenever the human mind, weary of the unsatisfying hunt for mere facts, has again turned to metaphysics, queen of the sciences.”22
Everyone is at least familiar with the distinction between legal norm and moral law, even though he does not completely separate them. It must surely have come as something of a surprise, then, that in antiquity such a distinction, let alone a separation, was altogether wanting. Aristotle in his treatise on ethics says that justice, which in this context he takes in the narrower sense, is directed “to another,” and, as essentially concerning the social order, governs the relations of man with his fellow man. But he speaks still more frequently of justice as the general virtue which embraces all others, makes man virtuous, and guides him to the highest goal. He likewise asserts, on this point following Socrates, that the just man is obedient to the laws, i.e., to the written laws and to the unwritten mores. Among these he includes the relations of man to himself, e.g., the curbing of the passions, as well as the ceremonial law and reverence for the divine.
This view rests substantially upon the fact that the sole and exclusive moral fulfillment of the idea of man was held to lie in citizenship. Whence, too, the acceptance of slavery. The slave, it was maintained, is by nature unfitted for citizenship; he is incapable, in the Aristotelian sense, of being educated to virtue. The virtuous life is the goal of man. But he can achieve this goal only as citizen of the polis and in obedience to its laws. All education and training in virtue consequently become politics, and the latter is ethics. The ancients knew only a politico-legal morality. The city-state, in their view, is the ultimate and absolutely supreme pedagogue, the fulfillment of the moral being of man.
The notion of human personality was in its deepest meaning hidden from the ancients, as was also the eternal, superterrestrial goal of the immortal soul. Moreover, they had but a faint idea of a personal God as the supreme lawgiver distinct from the world; nor did they know anything of a Church as the medium of salvation. For them the polis and its divine worship remained the ultimate. Wherever the idea of human rights forced its way through (among the moderate Sophists and in Stoicism), its effect was revolutionary: either it dissolved the city-state or it encouraged dreams of the great society (civitas maxima) of mankind, which of course merely raised the question of its own meaning. Thus the ancients failed to arrive at the distinction between natural law and natural moral law.
Nevertheless, the main problems connected with the idea of natural law existed already in antiquity. The positivism of the Skeptics, of Epicurus, and of Carneades stood in opposition to the natural law in its two recurring forms: the metaphysical one in Plato and Aristotle, and the individualistic one in the earlier Sophists. Furthermore, the continually recurring definitions of law, which have stirred up and divided philosophico-legal thinking down to the present day, had already been formulated: law is will, law is reason; law is truth, law is authority. The doctrine of an original state of nature, of fundamental importance for individualism but of merely persuasive value for other thinkers, appeared already among the Sophists. It appeared also among the Stoics for a similar reason but with another object in view, namely, to provide the basis for a distinction between a primary and a secondary natural law. This distinction, valuable to the Church Fathers in connection with their doctrine of original sin, served the Scholastics to differentiate the self-evident principles of the natural law from the conclusions obtained through reasoning the content of the natural law is more exactly determined—as well as to solve more or less successfully certain thorny theological problems.
The Natural Law in the Age of Scholasticism
A new philosophy and a new world order did not follow at once upon the entrance of the Christian faith into the ancient world, into a sociocultural complex that was in process of dissolution and was addicted to somber mystical beliefs and practices. Indeed, precisely because of the advancing disintegration, or rather decomposition, of ancient society and culture, a considerable number of early Christians were eschatologically minded; that is, they were unduly concerned with the supposed imminence of the last things, the end of the world and the second coming of the Lord. At all events and for a variety of reasons, the transforming power of Christian doctrine could at first accomplish little.
Christianity, however, contains three ideas of decisive importance for the present problem: the idea of the supermundane, transcendent, personal God as Lawgiver in the absolute sense, the idea of Christian personality, whose eternal goal transcends the state, the law, and the mores of the polis; and the idea of the Church as the institution charged with the salvation of mankind standing alongside and, in matters of faith and morals, above the will of the state. Such ideas had in the long run to affect the whole problem of natural law: not, indeed, in order to revolutionize it, but to explore it more thoroughly, to strengthen its foundations, and to complete it materially.1
The history of the natural-law idea shows that Christianity took it over at a very early date. Paul, the Apostle of the Gentiles, declares that the natural law is inscribed in the hearts of the heathen, who do not have the Law (of Sinai), and is made known to them through their conscience. It is valid both for pagans and for Jews because it is grounded in nature, in the essence of man. (Cf. Rom. 2:12–16).
The Fathers of the Early Church made use of the Stoic natural law, finding in its principles “seeds of the Word,” to proclaim the Christian doctrine of the personal Creator-God as the Author of the eternal law as well as of the natural moral law which is promulgated in the voice of conscience and in reason. Thus, for instance, we read in St. John Chrysostom (d. 407): “We use not only Scripture but also reason in arguing against the pagans. What is their argument? They say they have no law of conscience, and that there is no law implanted by God in nature. My answer is to question them about their laws concerning marriage, homicide, wills, injuries to others, enacted by their legislators. Perhaps the living have learned from their fathers, and their fathers from their fathers and so on. But go back to the first legislator! From whom did he learn? Was it not by his own conscience and conviction? Nor can it be said that they heard Moses and the prophets, for Gentiles could not hear them. It is evident that they derived their laws from the law which God ingrafted in man from the beginning.”2
The Fathers also took over the Stoic distinction of a primary and a secondary natural law, which they interpreted in a theological sense. They regarded the former as applying to the state of unimpaired nature or innocence, while they assigned the latter, with the coercive authority of the law, with bondage and slavery, to the theological condition of fallen nature. Nature, somehow wounded indeed but not destroyed, is therefore still able fully to recognize the first principles of morality and law. But the conclusions from the first principles, which were also plainly intelligible in the state of unimpaired nature, are now attainable only by means of deductive reasoning, since the practical reason is also weakened. Accordingly law takes on a harsh, compulsory character, and the state bears a sword. But the state as such was not regarded by the Fathers as some sort of consequence of sin. An age ignorant of tradition has been able to take such a view of the state only on the basis of patristic texts torn from their context and because of a want of understanding of the mental outlook of the Fathers.
The Fathers did not attempt to construct a system of ethics and jurisprudence. Their speculative thinking was wholly taken up with elucidating the truths of faith, which were in danger of being swamped in the upsurge of pseudomystical doctrines characteristic of the numerous mystery cults of declining antiquity. In addition, their heavy pastoral duties in the period of persecutions, organization, and evangelization left them little leisure for thorough theoretical treatment of questions of moral and legal philosophy.
St. Augustine (d. 430), it is true, forms an exception, and a very brilliant one. In his extremely fertile mind the ideas of ancient philosophy came once again to life and were worked into the new Christian mentality. His talents and the struggles against the Pelagian and Manichaean heresies, as well as the shattering experience of the breakdown of the Roman Empire, of the earthly city, brought ethico-legal problems home to the great bishop of Hippo.
For Augustine the substantial ideas, which Plato had conceived of as dwelling in a heavenly abode, became thoughts of God. The impersonal world reason of the Stoics became the personal, all-wise and all-powerful God. The purely deistic Nous of Aristotle became the Creator-God who transcends the world, but who continually sustains it through His omnipotence, directs it through His providence, and governs it according to His eternal law. This eternal law was for Augustine identical with the supreme reason and eternal truth, with the reason of God Himself, according to whose laws the inner life and external activity of God proceed and are governed. God’s reason is order, and His law rules this ontological order, the order of being, of essences and values. But since this norm is identical with the immutable, immanent nature of God, it does not stand above Him; it is connatural to Him, and it is as unchangeable as He. No power, no chance event, not even the complete collapse of all things can alter it. No obscure, occult fate is any longer enthroned, as in ancient thought, above the personal God.
Through this law God, so far as He produces external effects, directs, guides, and sustains the universe. God, supreme reason, unchangeable being and omnipotent will: this is oneness in its highest form. But the natural moral law and its component part, the ius naturale, is precisely this divine law with reference to man, so far as the latter participates in the divine law. The eternal law dwells as blind necessity in irrational nature. As oughtness, as norm of free moral activity, it is inscribed in the heart of man, a rational and free being. It appears in the moral, rational nature of man; it is written into the rational soul. There is no soul, however corrupt it may be, in whose conscience God does not speak, if only it is still capable of rational thought. There are human actions, consequently, which are in themselves good or bad. Bad acts are not qualified as such by force of law, but because they are such in themselves: because they constitute a disturbance of the natural order. Thereupon, because they are such, the lawmaker prohibits them under threat of punishment, which thereby obtains its moral justification. Not the will of the earthly lawgiver, but variance with natural reason is the ground of the intrinsic immorality of determinate actions.
The doctrine of natural law was transmitted to the golden age of Scholasticism not only in the works of the Church Fathers but also through the study of Roman law and through the development of canon law. The classical authors of the Corpus iuris civilis, as has been seen, stood in close contact with natural-law thinking. It is not merely in passing that we meet with the natural law in their writings: the natural law is there pronounced valid, unconditionally binding law. Considerably greater, however, was the influence of canon law in the form of Gratian’s Decretum (cir. 1148), especially since during the first period of the flowering of Scholasticism the study of Roman law by theologians was frowned upon and even, for a time, prohibited. Gratian distinguished between ius naturale and the mores. The ius naturale, which is contained in the Law (i.e., the Decalogue) and the Gospel, is of divine origin. It resides in human nature, it is alike in all men, and it has force independently of human statute. Natural rights and duties may indeed have to be more closely defined by positive law, but they stand as a norm and rule above the positive laws. To Gratian the latter were, like customary law or mores, liable to change according to time, place, and people. In short, Gratian merely set forth what tradition had handed down.
As the great philosophical movement of the Middle Ages, Scholasticism,3 approached its peak, the natural-law doctrine attained its most masterly expression. It was carried to speculative heights which have never been surpassed in the centuries that followed. Since then the doctrine of natural law has never wholly perished. Even though it might be neglected in the official academic philosophy which has been dominant in the chairs of the secular universities, and even though at the close of the nineteenth century and at the opening of the twentieth century jurisprudence might pronounce it dead, the natural-law doctrine has ever found a home and tender care among the adherents of the philosophia perennis. These have preserved it even throughout the decades in which legal positivism held fullest sway. Moreover, they carried it over, as Christian natural law, into an environment that is once again more favorable to the idea of natural law. For World War I and its consequences, to say nothing of World War II and its effects (which promise to be still more fateful), have brought men to recognize more and more openly the questionableness of a philosophy without metaphysics, of an epistemology without certainty of truth, of a jurisprudence without an idea of right.
The history of the natural-law idea exhibits a uniform doctrinal development from the first Scholastics down to the able leaders of the scholastic revival of recent times. Its two culminating points were the synthesis of St. Thomas Aquinas and, following the heaviest assault made inside Scholasticism by the Occamists on the idea of natural law, the work of Vittoria, Bellarmine, Suarez, Vasquez, and De Soto (to mention only the most distinguished of the Late Scholastics). And the period after World War I again produced more understanding and esteem for a uniform doctrinal development that has been substantially independent of fashionable philosophies and of a jurisprudence with special sociological or political ties.
Scholasticism has dealt exhaustively with the problem of natural law. Not one of its exponents has failed to treat of the natural law, either in general in connection with the discussion of the virtues or in particular under such headings as De legibus or De iure et iustitia. And with the lex naturalis they handled, though not always with the aid of special distinctions, the ius naturale and ius gentium in the sense of the traditional formulas of Roman law. This holds true from Alexander of Hales to Thomas Aquinas, and thence down to the great masters of Late Scholasticism. It further holds good for the theologians and philosophers of the philosophia perennis, whether they were contemporaries of Pufendorf and Thomasius or of Savigny, down to the increasingly esteemed representatives of the scholastic revival which set in at the close of the nineteenth century.
‡In following the doctrinal development it is worthy of note that the antithesis of lex-ratio and lex-voluntas, applying here in the setting of theological speculation and in general to the lex naturalis inclusive of the natural law in the stricter sense, coincided structurally with the doctrines of the respective thinkers concerning God. But it is also noteworthy that later, when the natural-law doctrine had been severed from its theological moorings and hence secularized, the same thought patterns repeated themselves. Now, however, they were detached from the medieval form of Summa and applied solely to law in the narrower sense. The result has been that natural law is the consequence of the doctrines of the priority of the intellect over the will (law is reason) in both God and man, of the knowability of the essences of things and their essential order, their metaphysical being and the ordered hierarchy of values. Positivism, on the other hand, is the consequence of the doctrine of the primacy of the will with respect to the intellect in both theology and human psychology. Besides, voluntas here means more than mere will: it denotes passion, irrational appetite, and so on. Positivism signifies the renouncing of all efforts to know the essences of things (nominalism), the repudiation of the metaphysics of hierarchized being and value. Accordingly it is also found in the same conceptual pattern in the thinking of the nineteenth and twentieth centuries, even though it is concealed under different names.
Relativism in ethics, legal positivism, the theory of will in public and international law, nominalism and agnosticism in epistemology and metaphysics form down to the present a united front with the mysticism of a biological positivism appearing in natural-law dress. On the other side stands the conviction of unalterable principles of morality and law, of the idea of right as object of a philosophy of right, of the natural law, of the possibility of knowing the nature of things, of objective values and an ultimate unity of being and oughtness as well as the possibility of a true theodicy, or natural theology. And this antithesis continues on, in an ever more acute form, into the domain of constitutional theory and practice. The powerful position, in Anglo-Saxon countries, of the judiciary which understands and interprets (functions of the intellect) in contrast to the enactment of law through the will of the legislature rests ultimately upon the philosophical view that law is reason, not will. This means that right is discernible in the nature of the case or lies in the legal institution regulated by law, not in the will of the legislator: not, that is to say, in the wording of the law representing such a will or command. Such formulas as those found in the administration of justice in Anglo-Saxon countries (especially in the United States), where formal natural-law thinking has never disappeared among judges, are continually recurring even today.4
It was not with St. Anselm of Canterbury (1033–1109), often called the first of the Schoolmen, that Scholasticism began to concern itself more seriously with the natural law, but rather with the first great author of a Summa, Alexander of Hales (d. 1245). Deeper interest in it thus arose first and foremost from the philosophical preoccupation with laying a solid foundation for ethics, for law and the social forms of family and state, for a doctrine of society and the state. This interest was considerably heightened, however, in connection with the exegesis of certain passages in the Old Testament.
That is, the thesis of the immutability of the lex naturalis and ius naturale presupposes the intrinsic immorality and unlawfulness of certain actions, and it consequently excludes any dispensation from the norms of the lex naturalis. But such a position seemed to conflict with some Old Testament stories, whose moral tone and authority made it necessary to conclude that a dispensation is nevertheless possible. Such cases are, for instance, Yahweh’s command to Abraham to offer up his son Isaac in sacrifice (Gen. 22:2); the polygamy of the patriarchs; God’s instruction to the prophet Osee: “Go, take thee a wife of fornications” (Osee 1:2; cf. also ibid., 3:1); the injunction laid upon the Jews or permission accorded them at the time of the Exodus to take away with them vessels of silver and gold as well as raiment lent to them by the Egyptians (Exod. 3:21 f.; 11:2 f.; 12:35 f.); divorce openly allowed to husbands in the Mosaic legislation (Deut. 24:1–4); the reply of the angel Raphael to Tobias’ question about his identity: “I am Azarias the son of the great Ananias” (Tob. 5:18), which seems materially and formally to amount to a lie. All these cases called for a thorough discussion, from the theological and exegetical angles, of the question of the immutability, i.e., the essential nature, of the lex naturalis. But at the same time they were a warning not to be too doctrinaire in determining the content of the natural law.
Alexander of Hales, falling back upon St. Augustine’s teaching, hit upon a beautiful figure: the eternal law is the seal, and the natural moral law is its impression in the rational nature of man, which in turn is an image of God. Now, the laws of thought, as unchangeable norms of thinking, must govern speculative reason, the understanding, if the latter is to serve the purpose of its nature, the perception of truth; and such laws are immediately evident and certain. In the same way there exist for willing and acting in the domain of the practical reason supreme moral principles which are equally evident and sure. Thus every deed and action is moral only when it is performed in accordance with these principles. Moreover, this immanent natural moral law can never be destroyed. Yet the further conclusions from the supreme principles may well become obscured in individuals through the working of the passions and through a turning away from God, the Author of the natural law. To explain this possibility Alexander borrows a figure from Plato: the sun ever remains the same, yet darkness ensues when clouds pass before the sun or when, during a solar eclipse, the moon prevents the sun’s light from reaching the earth.
Although he held fast to the immutability of the first principles, Alexander of Hales at first sought to explain the changeableness of the further conclusions, observable in the Old Testament as well as elsewhere, by adopting the Stoic distinction, transmitted in the writings of the Church Fathers, of a primary natural law anterior to original sin and of a secondary one subsequent to original sin. The status naturae integrae, the theological state of nature preceding original sin, would in itself, as St. Augustine had already taught, have produced life in society, marriage, the family, and the political community. (This state of nature accordingly differs considerably from the individualistic state of nature, which indeed was directly opposed to the status civilis.) But had this state of nature been realized, community of goods, equal personal freedom, and a legal order unaccompanied by the use of force would have prevailed. Only in the state of fallen nature, after original sin, did private property, restrictions upon liberty, the coercive power of the state, and personal inequality arise. But the natural law underwent thereby no alteration; for even now the basic norm, men must live peacefully with one another, remains in force. Hence only the application of this norm has changed, not the norm itself. The secondary natural law, the second table of the Decalogue (i.e., the last seven of the Ten Commandments), is a consequence of original sin.5
But this theory had to be completely abandoned. For this type of argument was unable to furnish what it was intended to provide, namely, an ethico-philosophical explanation of the actions apparently contrary to the natural moral law recorded in the Old Testament. And so Alexander of Hales had recourse, as did St. Albert the Great and other contemporaries, to the doctrine of the primacy of the will in God as well as to God’s sovereign dominion that transcends all laws. These thinkers perceived clearly enough that in this way everything again became uncertain, but they were unable to prevent this outcome. For an adequate solution of the problem the genius of a Thomas Aquinas was needed.
St. Thomas (1225–74) starts from the likeness of human nature to the divine nature. Understanding and free will are the most essential marks that distinguish man from every other earthly creature. It is precisely through them that man is in a special degree the image and likeness of God. Man’s intellect and free will constitute the closest image of God in the material universe, His creation. St. Thomas, indeed, is fond of setting out from the notion of analogy of being: namely, that all created being, though of an altogether different kind from the divine Being, is an image of the latter and a participation in it—from merely inanimate being of inorganic nature up to man, whom God created after His own image.
Here teleology, the doctrine of ends or final causes, enters the scene.6 The essences of things, which are exemplifications of the ideas conceived by the divine intellect, constitute at the same time the end or goal of the things themselves. The perfection or fulfillment of the things is their essence: formal cause and end are one (causa finalis is ultimately identical with causa formalis). Accordingly in the essential nature of the created world, as it came forth in conformity with the will of the Creator, are imbedded also the norms of its being. In the essential nature is likewise founded essential oughtness, the eternal law, which is God’s wisdom so far as it directs and governs the world as first cause of all acts of rational creatures and of all movements of irrational beings. The eternal law, then, is the governance of the world through God’s will in accordance with His wisdom. This law is thus the order of this world. Creatures fulfill this law in conformity with their nature as it has been fashioned by God: from the lifeless and inorganic realm of creation, through the living but dumb creatures, to the rational and free beings.
The eternal law, therefore, comprises several elements. First, it includes what today we call the laws of the natural sciences: the laws of movement taken generally, in accordance with which the stars in the heavens and the stones upon earth are moved from without. Secondly, it embraces what in living creatures, plants and animals, we term the laws of their evolution and growth, the laws of reaction to external influences or stimuli, instinct, and the like, which, however, involve movement from within, after the manner of an entelechy.7 Thirdly, it contains the laws by virtue of which man, as a rational and free being, knows and wills, hence the laws of theoretical and practical reason. Since man is quodammodo omnia—herein consists his likeness to God, who is eminenter omnia—he is wholly subject to the eternal law in his material, sentient, and rational being, but ever in keeping with his essence. Oughtness, not blind compulsion and necessity, characterizes the way man obeys the law. Hence for man, as a free rational being, the eternal law becomes the natural moral law. Man must (i.e., ought to) thus both will and achieve the perfecting or fulfillment of the potentialities of his being which God has put into his nature, as he perceives them in virtue of his reason and becomes conscious of them.
Furthermore, this natural moral law is alone law in the proper sense: a norm which ought to be obeyed, not one that must be blindly obeyed. Our modern laws of nature are law only in a metaphorical sense. Law, indeed, is a norm and measure for acts which rational creatures alone are capable of. Its basic norm may be simply stated: Act in conformity with your rational nature. For rational nature, known through self-consciousness or reflex thinking, constitutes the ontological criterion of man’s oughtness. Through its free realization he becomes a man, a free rational being. God’s wisdom and knowledge as well as His will stand revealed in the essential idea of man.
St. Thomas reaches the same conclusion from still another consideration, from the metaphysical notion of goodness.8 Reason is the first and proximate rule for judging the moral quality of an action, which is moral precisely because it is inherently conformable to reason and nature, or immoral because it is at variance therewith. By what does reason gauge, however, whether an action or object is suited to the essential nature? St. Thomas gives the following explanation. Every agent, supposing that he is actually in possession of reason and freedom of will, acts for an end or purpose. The moving principle, the end, is thereby perceived and willed as something good. But a thing is an end only so far as it is a good, whose acquisition makes it worth one’s while to act. Goodness induces one to act. Goodness is, in final analysis, that which is in itself worth desiring and striving for. As cognition is directed to being, so the will is directed to goodness. And just as the intellect knows the thing so far as it has being, so the will lays hold of the thing, perceived as desirable or worth striving after, as good. All being is good. A being is a good so far as it appears suited to the essential nature. Now the supreme principles of speculative reason (the principle of contradiction, and so on, the immediately evident, axiomatic laws of thought) guide the intellect in its thinking. In the same way St. Thomas recognizes a supreme principle, a law, for the practical reason, for the will: good is to be done. The very same being which the theoretical reason knows as being and in which it apprehends truth, the agreement of knowledge with being, appears to the will and the practical reason as a good. That which is, also ought to be. Being, truth, and goodness are convertible. The law is truth; it wills what is good; and it presupposes knowledge of being.9
Good is to be done: such is the supreme commandment of the natural moral law. The highest and basic norm of the natural law in the narrow sense, then, may be stated thus: Justice is to be done. Yet this principle is altogether general. It needs still to be determined to what extent the object striven for by means of a concrete action is a true good. This is done more or less with the aid of a syllogism (which, of course, is not worked out in every case by concrete reasoning): Good is to be done; this action is good, it strives after a good; it is therefore to be performed. Good is that which corresponds to the essential nature. The being of a thing also reveals its purpose in the order of creation, and in its perfect fulfillment it is likewise the end or goal of its growth and development. The essential nature is thus the measure. What corresponds to it is good; what is contrary to it is bad. The measure of goodness, consequently, is the essential idea of a thing and the proportionateness thereto of actions and of other things. That is, “Good is to be done” means the same as “Realize your essential nature.” Moreover, since this essential nature issued from God’s creative will and wisdom in both its existence and its quiddity, the principle continues: “You thereby realize the will of God, which is truly manifested to you in the knowledge of your essential nature.” The same being is truth to the theoretical reason, and goodness to the practical reason.10
The train of thought thereupon widens. It follows that there are some actions which, because they correspond to the essential nature and its end, are in themselves good, moral, just; and that there are others which, because they are at variance therewith, are in themselves bad, immoral, unjust.11 At any rate, this is true on the assumption that both in God and in man the intellect, not the will, holds the primacy. For a natural moral law as an immutable basic norm, and the essential nature as a valid measure of what is moral and just, are possible only when this essence is itself unalterable. This presupposes, however, that the essential nature owes its idea, its quiddity, and its existence to the unchangeable essence of God Himself, of which they are reflections. “If, too, human nature is the immediate measure of moral goodness, it can be the norm of unalterable moral judgments only insofar as it itself embodies the idea of man as this rests from all eternity in the divine mind. But the ideas of things in the divine mind are, in their content, nothing else than the images through which God knows His own essence as imitable. This is true also of the idea of man.”12
The divine essence and, in one and the same act, the divine knowledge thereof and the creative will of God, likewise thereby informed in one and the same act, are (or rather, is) the basis for the essential nature and its immutability. “That God of necessity enacts and cannot alter that law which we call the natural law comes merely from the fact that His will cannot do away with His most perfect essence, that God cannot be at variance with Himself and cannot, as the Apostle says, deny Himself” (Kleutgen). This is the fundamental reason for rejecting moral and legal positivism. The will is not the law; on the contrary, it can only be right law when it is guided even in God by reason and intellect. “But to say that justice depends upon mere will is to say that the divine will does not proceed according to the order of wisdom, which is blasphemy.”13
Good is to be done, evil is to be avoided: this basic norm of the natural moral law has thus the character of an axiom. The real question, however, is that of its application to the concrete case. As another expression for the first rule of the lex naturalis, as general principles known to all, St. Thomas mentions love of God and of one’s neighbor. Man knows other principles only through deductive reason, yet not with altogether unerring certitude. For, in contrast with the speculative reason, the knowledge of the practical reason is more severely menaced in its clarity by the passions, by sinful inclinations. These conclusions from principles are for St. Thomas, as he explains in a searching inquiry into the problem, identical with the Decalogue, or Ten Commandments. The Decalogue contains the most essential conclusions for the simple reason that its precepts do not result from an arbitrary arrangement made by God, but from the fundamental distinction of good and evil. The first table of the Decalogue (first three Commandments) embraces the moral norms that relate to the worship of God; these required a special promulgation, in the view of St. Thomas, because they are not so evident as the laws found in the second table. The latter (the last seven Commandments), which are derived from the mutual relations among men and from the essence and goal of human nature, are, on the other hand, known more readily and with greater evidence. Human society in all its groupings ought to be built up in accordance with justice.
The Decalogue (second table) presents the norms that follow from the essential relationships which in their turn are given in the essential nature of man as a rational, free, and social being. These precepts, as norms with a material content, protect the family and parental authority (Fourth Commandment), human life (Fifth Commandment), the person in the capital sense of husband and wife (Sixth Commandment), property (Seventh Commandment), and honor (Eighth Commandment); lastly they forbid (Ninth and Tenth Commandments) inordinate, illicit longing for those goods which are especially exposed to covetousness and, moreover, whose wrongful appropriation does not arouse that natural abhorrence which infractions of the Fourth, Fifth, and Eighth Commandments do.14 St. Thomas regards it as self-evident that the further deductions from these conclusions do not possess the same evidence, since they necessarily lose, in favor of particular prescriptions, the universal character required for evidence. Furthermore, they are not so unmistakably recognizable that errors about them may not arise in the minds of individuals as well as among groups.15 Moreover, they do not share in the prerogative of immutability enjoyed by the principia communissima as well as by the conclusions which make up the contents of the Decalogue.
For instance, from the nature of the legal institution, from the agreement with reason and from the right of property, which in the general sense is protected by the Seventh Commandment, it follows that goods held in trust should be restored to their owner. Nevertheless, as St. Thomas points out, such goods may be withheld from their owner in case they are to be used for treasonable purposes.16 Here the further conclusion does not hold good, although the universal norm of acting according to reason, the suum cuique, continues absolutely to govern the case. Some “matters cannot be the subject of judgment without much consideration of the various circumstances. Not all are able to do this carefully, but only those who are wise.”17 “In the very application of the universal principle to some particular case a mistake can occur through an inadequate or false deduction, or by reason of some false assumption”;18 and in the matter of its secondary precepts, “the natural law can be blotted out from the human heart, either by evil persuasions … or by vicious customs and corrupt habits.”19 Therein, moreover, practical reason differs significantly from theoretical reason, which is less subject to such disturbing influences.
This does not, then, mean merely that there is in St. Thomas no trace whatever of the extravagances of the rationalistic natural law current in the seventeenth and eighteenth centuries, since according to him only the Decalogue belongs to the contents of the natural law. It further means that the lex naturalis or ius naturale does not render positive laws superfluous, but actually calls for them. St. Thomas gives scarcely any attention to the doctrine of a state of nature, because he has no need of the latter for establishing the natural law. Now, the farther removed the conclusions are from the principia communissima, the more numerous and varied become the possible decisions. Hence a positive law must determine, must decide with greater exactness for concrete cases, what the correct application and conclusion are. There is all the more need of such determination because human nature, deprived and hence wounded somehow (though not destroyed or depraved) by original sin,20 must be—and in conformity with its inner goal also ought to be—constrained to good and restrained from evil. Self-education or addiction to goodness does not pertain to man as such. Consequently men stand in need of a clearly prescribed and adequately sanctioned system of norms, which emanate from an authority and power that in their inmost reality serve justice, and in the individual serve to perfect the essential nature of man. They are therefore ethical. St. Thomas is no romantic optimist like Rousseau.
Furthermore, it is precisely the object of the positive law to render the citizen virtuous. It is not merely a question of maintaining order, or external peace; the law should rather act as a medium of popular education to transform those who live under common legal institutions into perfect citizens. For this very reason positive norms, determinate coercive measures, and a more exact definition of the circumstances in which the general principle shall be applied, are imperative. Thus the definition of what theft consists in is given with the lawfulness of private property. But the punishment which should follow theft, if arbitrariness is to be avoided, requires, with respect to the procedural verification of the theft as well as to the sentence and its execution, exact legal provisions which vary with times, cultures, and individual peoples.
Here, in connection with the positive law which is therefore always “something pertaining to reason,” St. Thomas arrives at the nature of law. It has to do essentially with community life. On the other hand, it is distinguished from and contrasted with social ethics through its being directed to external order. The law wills that man conduct himself in such and such a manner; it concerns the external forum (vis directiva). It is the norm to be enforced: compulsion (vis coactiva) is proper to law, not to morality.
From this inner connection of every positive law with the lex naturalis St. Thomas rightly concludes that the positive law may not conflict with the natural law. So far as it is in conflict with the latter, i.e., with the unchangeable norms, it is not law at all and cannot bind in conscience. For the force and significance of the law consist precisely in the obligation in conscience. Yet it may at times be right to obey even an unjust positive law (one that is not against the natural law: e.g., a law that imposes an unjust tax burden), because the higher natural-law norm enjoins in individual cases the sacrifice of a particular good to a more general good. For instance, the general goods of security under law and the external order of peace constitute a higher value than does the individual right to just treatment in the levying of taxes. It is consequently not the unjust law that binds, but the higher norm of peace and of maintenance of the community.
In this fashion, then, all law, down to and inclusive of its positive individualization, is connected by means of the natural moral law with the eternal law and lives on the latter. Thus rectitudo practica, reasonableness or the relation to human nature still is, and ought to be, the essential element even in the positive law. For St. Thomas the law is somehow reason, not mere arbitrary will.21 The natural law remains the measure of the positive law. But this position is intimately connected with the doctrine of the immutability of the natural law and the enduring essential nature of man, as well as with the primacy of the intellect over the will in both God and man.
But can God, by His absolute power, dispense from the precepts of the Decalogue? St. Thomas unqualifiedly answers that the Ten Commandments admit of no dispensation whatever. “Precepts admit of dispensation when there occurs a particular case in which, if the letter of the law be observed, the intention of the lawgiver is frustrated. Now the intention of every lawgiver is directed first and chiefly to the common good; secondly, to the order of justice and virtue, whereby the common good is preserved and attained. If, therefore, there be any precepts which contain the very preservation of the common good, or the very order of justice and virtue, such precepts contain the intention of the lawgiver, and therefore are indispensable. …
“Now the precepts of the Decalogue contain the very intention of the lawgiver, who is God. For the precepts of the first table, which direct us to God, contain the very order to the common and final good, which is God; while the precepts of the second table contain the order of justice to be observed among men, namely, that nothing undue be done to anyone, and that each one be given his due; for it is in this sense that we are to take the precepts of the Decalogue. Consequently the precepts of the Decalogue admit of no dispensation whatever.”22
‡But what of the Old Testament passages that appear to involve divine dispensations from the natural law? In reply, St. Thomas notes the sovereign dominion of God over men and over concrete human actions and institutions: “The precepts of the Decalogue, as to the notion of justice which they contain, are unchangeable; but as to any determination by application to individual actions—for instance, that this or that be murder, theft, or adultery, or not—in this point they admit of change; sometimes by divine authority alone, namely, in such matters as are exclusively of divine institution, as marriage and the like; sometimes also by human authority, namely, in such matters as are subject to human jurisdiction; for in this respect men stand in the place of God, though not in all respects.”23
With Duns Scotus (d. cir. 1308), and with the principle of the primacy of the will over the intellect so much emphasized by him, there began inside moral philosophy a train of thought which in later centuries would recur in secularized form in the domain of legal philosophy. The principle that law is will would be referred in legal positivism, as well as in the theory of will in jurisprudence, to the earthly lawmaker (self-obligation).
For Duns Scotus morality depends on the will of God. A thing is good not because it corresponds to the nature of God or, analogically, to the nature of man, but because God so wills. Hence the lex naturalis could be other than it is even materially or as to content, because it has no intrinsic connection with God’s essence, which is self-conscious in His intellect. For Scotus, therefore, the laws of the second table of the Decalogue were no longer unalterable. The crux of theology, namely, the problem of the apparent dispensations from the natural law mentioned in the Old Testament and thus seemingly granted by God (the command to sacrifice Isaac, Raphael’s apparent lie, Osee’s alleged adultery, the polygamy of the patriarchs, and so on), was now readily solved.24 Yet St. Thomas, too, had been able to solve such cases. Now, however, an evolution set in which, in the doctrine of William of Occam (d. cir. 1349) on the natural moral law, would lead to pure moral positivism, indeed to nihilism.
The will is the nobler faculty; the intellect is but the ministering torch-bearer of the will, which is the master. Between God’s essence and that of man there exists, apart from the fact of creation, no inherent connection, no analogy of being. Hence, too, there exists no unchangeable moral order grounded in the nature of things, in the ordered universe of being and value. As all being is founded on the mere absolute will of God without participation in His essence, so all oughtness or obligation rests solely on the same absolute will. Oughtness is without foundation in reality, just as the universals are merely vocal utterances (flatus vocis) and not mental images of the necessary being of the ideas in God. In this way Occam arrived at a heightened supernaturalism, but only to deprive almost completely the natural order of its value.
For Occam the natural moral law is positive law, divine will. An action is not good because of its suitableness to the essential nature of man, wherein God’s archetypal idea of man is represented according to being and oughtness, but because God so wills. God’s will could also have willed and decreed the precise opposite, which would then possess the same binding force as that which is now valid—which, indeed, has validity only as long as God’s absolute will so determines. Law is will, pure will without any foundation in reality, without foundation in the essential nature of things. Thus, too, sin no longer contains any intrinsic element of immorality, or what is unjust, any inner element of injustice; it is an external offense against the will of God.
As a result, Occam, who sees only individual phenomena, not universals, the concepts of essences, can likewise admit no teleological orientation toward God is inherent in all creation and especially in man; or at least he cannot grant that it can be known. The unity of being, truth, and goodness does not exist for him. Moral goodness consists in mere external agreement with God’s absolute will, which, subject only to His arbitrary decree, can always change. To such an extent were God’s omnipotence and free will extolled that much subtle speculation was devoted to the question of whether God can, through His absolute power, will hatred of Himself; a question which Occam and many of his disciples answered in the affirmative. Man sins, therefore, because and only so far as a positive law, by which he is bound, stands over him. God, on the other hand, cannot sin because no law stands above Him, not because it is repugnant to His holiness. Hence there exists no unchangeable lex naturalis, no natural law that inwardly governs the positive law. Positive law and natural law, which indeed is also positive law, stand likewise in no inner relation to each other. The identity of this thought structure with The Prince of Machiavelli, with the Leviathan of Hobbes, and with the theory of will of modern positivism (the will of the absolute sovereign is law, because no higher norm stands above him) is here quite obvious.25
The dispute over whether the intellect of the will is the nobler faculty had, in the moral positivism of Occam’s school, split the scholastic doctrine of natural law to its very core. The scholastic revival of the age of the Protestant Revolt, however, successfully understood the speculative rehabilitation of the lex naturalis and ius naturale on an ontological basis, just as it also went back to St. Thomas in its theology.
The philosophy of law received special and thoroughgoing treatment at the hands of the Late Scholastics. The outstanding figures in this field were, to mention but a few of the many important scholars, the Spaniards Vittoria (d. 1546), Suarez (1548–1617) and Vasquez (d. 1604), and the Italian St. Robert Bellarmine (1542–1621).
The reasons for this more intensive preoccupation with the problems of the natural moral law and philosophy of law were many. To begin with the doctrinal ones, Occamism had wrought havoc in theology as well as in metaphysics and ethics. Reason had been rendered barren. The so-called Reformers had drawn the ultimate conclusions from Occamism with respect to theology. Contemptuous of reason, they had arrived at a pregnant voluntarism in theology as well as at the doctrine of natura deleta, of nature as destroyed by original sin. Thereby the traditional natural law became speculatively impossible.26 The spirit of the Renaissance, too, had made use of Occam’s separation of faith and knowledge to emancipate secular thought or worldly wisdom, and to place it in opposition to sacred learning. Pomponazzi (1462–1530), after the manner of the Averroists, had spoken of a twofold truth: what is true in philosophy may be false in theology, and vice versa. Law as such was separated in a positivist fashion from the eternal law when the natural moral law had been made into a positive act of God’s absolute will. Machiavelli (1469–1527) had secularized this view and had drawn the consequences for politics. The absolute power of God in Occam’s doctrine became at the hands of Thomas Hobbes the absolute sovereignty of the king.
But there were also practical reasons. Not only in idea, but also in actual fact the orbis christianus had ceased to be “the world.” The Spanish and Portuguese discoveries had brought to light the East Indies and America, and the gentes dwelling there. This event raised new and great problems for the ius gentium. The first and extremely important treatise on international law, the work of Francis de Vittoria, bears the title, De bello et de Indis. Besides, the enormous expansion of trade in the early period of modern capitalism raised new moral problems for the Late Scholastics, as did also the process of political transformation from feudal society to a world of states ruled by absolute sovereigns. Thus it came about that nearly every scholar of the time composed treatises entitled De legibus and De iure et iustitia.
The task of the Late Scholastics was, then, as Petavius so well pointed out, to work out further, to develop fully and completely, what the thinkers of the golden age of Scholasticism, in particular St. Thomas Aquinas, had taught implicitly and in outline. They saw and carried out this task in the case of the natural-law doctrine, too. The decline of the doctrine of natural law set in only after them. So competent a scholar as Joseph Kohler has held that “if, then, a natural law is to be fashioned today, it must be attached to these Spaniards of the age of Spain’s greatness, not to Hugo Grotius.”
In their theology and psychology these thinkers of Late Scholasticism restored to honor the Thomistic doctrine of the divine essence as source of the entire moral order and, with it, that of the primacy of the intellect over the will. The natural law is grounded in essence and reason, not in mere absolute will, in God’s absolute power. God’s omnipotence is subordinated, humanly speaking of course, to the decrees of His wisdom. Like these, therefore, the essences of things are also unchangeable. Potentia ordinata is that power in virtue of which God has created, among all possible worlds and orders of being, precisely the present one. Absolute power, on the other hand, is the power through which He can do everything that is not in itself contradictory. Hence God cannot cooperate in human sinning, and still less can He be its total cause. The Occamist question of whether God could will hatred of Himself involves an intrinsic impossibility.
In short, the intellect grasps the pure essence of a thing, its quiddity or whatness, and prescinds from actual existence. The will, on the contrary, can lay hold of a being only as something existing or to be brought into existence; it is directed to the particular, to the individual. Intellectual apprehension is more immaterial; it grasps essential being. The will in itself is blind, in contrast to the intellect which apprehends the object immediately. The will lays hold of the object only when the latter is presented by the intellect as a known and valuable good. On this depends the question of the possibility of an immutable natural law. Positivism in law and ethics corresponds to agnosticism in epistemology.
Like the idea of God, the idea of law was also purged of Occamist positivism. For the Late Scholastics the law belongs more to the reason than to the will. The will, it is true, moves all faculties to action. Yet it is blind: to arrange and direct are the work of reason. The will is related to the intellect as a queen is to a king. The will, the queen, manifests her desires to the king and moves him. But the intellect, the king, enacts the law (Bellarmine).
The lex naturalis, therefore, is not related to the will of God in a simple positivist manner. It is related to God’s essence, to His reason, whence emanates the eternal law whereof in turn the natural law is, and ultimately every moral and positive law should be, a participation. The natural law has for its proximate principle the essential nature of man. It is a judgment of reason concerning the conformity of moral action and nature. But at the same time it shows that what is good ought also to be done. God, who fashioned the essential nature of man with reason and will, is simultaneously recognized as Lawgiver, too. To state it in another way, what the eternal law is in God actively, i.e., as will in accordance with His essence, that the natural law is in man passively: a law flowing from his essence and imbedded in it. The mere light of natural reason that indicates the agreement or disagreement of an action with man’s essential nature (Vasquez) is insufficient by itself. There must in addition be the rational insight that an act in accord with reason and nature is also God’s will (Suarez, Bellarmine).
This controversy had a still deeper significance. Suarez and Bellarmine wished to stress the inner oneness of natural law and eternal law. They wished to do this, moreover, by way of the recognition of God as the Lawgiver who wills that actions correspond to being, to essential nature. Vasquez, the Spanish Augustine, had regarded rational nature, irrespective of the positive will of God, as the primary ground of the obligation to obey the natural law. For him, consequently, since an act of the lawmaker’s will belongs necessarily to the nature of law, the natural law is not properly law in the strict sense: it is not lex praecipiens, merely lex indicans. This view, a very uncommon one among the Late Scholastics,27 assumed great importance in the rationalist doctrine of natural law. Arriaga and Grotius were already teaching, in order fully to bring out its immutability, that the natural law would have force even if there were no God.28 Out of this there developed an autonomy of abstract human reason conditioned by the separation of the eternal law and the natural law, and also the ethico-legal rationalism of the individualistic natural law (a development which, by the way, Suarez had foretold in his controversy with Vasquez). This loosening was thus the signal for the outbreak of a fanatical rationalism in speculation, which was bent upon drawing all possible conclusions from this isolated and, later still, individualistically interpreted pure rational nature. Moreover, such fanaticism lacked all corrective of history as the domain of God’s providential activity. To the rationalistic natural law corresponded Deism in theology.
The natural moral law is therefore a judgment of reason which presents actions as commanded or forbidden by the Author of reason, because the light of reason shows them to be in agreement or disagreement with man’s essential nature; and at the same time reason judges that God wills that which accords with nature: essential being ought to be realized. In its essence and intellectual content the natural law is absolutely dependent upon the divine intellect; in its real existence, upon the divine will.29
In this way, not only was the connection between the eternal law and the natural law maintained for later ages, but, for contemporaries, the true character of law was upheld against the so-called Reformers who belonged to the school of Occam. For the latter saw the natural law exclusively in the words of Scripture. Indeed, with their doctrine of natura deleta they could not even attain to a moral law that is naturally good. Gratian’s formula, ius naturae quod in Evangelio et lege (Decalogue), which was now being misinterpreted, vanished. So, too, did Ulpian’s formula, quod natura omnia animalia docuit. Only now was an elucidation of the ius gentium possible.
The Late Scholastics, like St. Thomas, included the Decalogue, regarded as belonging in its entirety to the lex naturalis, in the contents of the natural moral law. They distinguished in this connection the supreme principle, “Good is to be done, evil avoided,” and equally evident though already less universal principles, which therefore embrace specific kinds of goodness. Such are the following: Give to everyone his due; Worship must be paid to God; Justice must be observed; Agreements must be kept. From these follow by way of deduction additional precepts, which concern individual goods and the institutions that protect them. Thus theft, lying, adultery, and perjury are always forbidden because they are intrinsically evil.
These teachers came to speak of the relationship of the natural law to the positive law mostly in connection with political science, and particularly in reference to the end of the state. Moreover, connected with this problem is the question of the nature of law in relation to morality.
Any positive law which offends against the natural moral law is not a law that is binding in a moral sense, i.e., in conscience. But only those laws are absolutely null and void that run counter to the prohibitive natural law. Therefore a law that would positively prescribe murder or perjury would not be a law at all, nor may one obey it. The case where a law is opposed to the affirmative natural law is different. The citizen must put up with encroachment on the part of a government that deals unjustly, e.g., in the matter of taxation, if through resistance the public order, already threatened by the very fact of the unjust law, would be still more gravely menaced. Only such authority as enacts laws which are in conflict with the prohibitive natural law ceases to be authority in the rightful sense and becomes tyranny. Mere power can impose no inner duty of obedience. But this truth has nothing to do with the fact that among the Indians, for instance, laws prevail which are contrary to natural law. For such laws are made by lawgivers and accepted by subjects or members of the community, not because these laws are immoral and bad, but because conscience, darkened through deficient rational insight and troubled by passions, is unable to recognize their inherent badness. Indeed, St. Thomas admitted such a possibility in the case of conclusions from the natural moral law.
Conversely, however, it follows from the fact of natura vulnerata as well as from the ethical character and goal of community life, and of the state in particular, that positive human laws are absolutely necessary for determining the further inferences from the first principles in the interest of a more exact and readily discernible establishment of order and for the setting up of institutions needed for community life. The natural-law prohibition of adultery implies at the same time an affirmation of marriage and of the general norms that are most needed for its functioning as an institution. “Thou shalt not steal” presupposes the institution of private property as pertaining to the natural law; but not, for example, the feudal property arrangements of the Middle Ages or the modern capitalist system. Since the natural law lays down general norms only, it is the function of the positive law to undertake the concrete, detailed regulation of real and personal property and to prescribe the formalities for conveyance of ownership.
The nature of law was likewise explored. As a rule, the Late Scholastics employed the terms lex naturalis and ius naturale as synonyms. But Suarez and Bellarmine, for instance, made a distinction when they expressly declared that violation of the lex naturalis on the part of the Indians by no means constitutes grounds for a just war: hence Christian princes are not justified in subjugating these gentes by alleging their transgression of the lex naturalis. Only an offense against the ius naturale warrants such action. In this respect, indeed, states stand in the same relationship to one another as do persons, and the Indian states are true states in the sense of law. Law, therefore, stands out in the overall picture of the moral realm by reason of its social character, its reference to another (whether person or group). Justice is the virtue which has right (with which law in the technical sense is concerned) for its object. It is essentially directed to one’s fellow man. As commutative justice it has to do with those who are upon an equal footing in the social complex; as legal justice it concerns the rights of authorities or superiors, which it commands subjects to respect; as distributive justice it obliges authorities, in their administrative activity, to give to everyone his right according to his function and merit in the ordered whole. Thus the norms that have to do with the life in common of men and groups (their social units, arrangements, and social functions) are the object of justice. They are thereby law.
These norms constitute natural law insofar as such regulations pertain, as immediately necessary, to the essential nature and essential fulfillment of man in the vita oeconomica (marriage, family, and occupational groups organizing themselves according to social functions in the service of the common good, for the peaceful ordering of the people) and in political life (state and international community). Since these regulations are necessary, their realization, improvement, and maintenance against lawbreakers are enforceable by the public authorities. Law wills that this be done without further ado, not merely because morality demands it. The debitum iustum (ex iustitia) thus differs from what is owed ex pietate or ex gratitudine precisely because gratitude is of its very nature unenforceable: if obtained by force, it ceases to be a moral action at all. Seneca in his day raised the question of why no suit can be brought against an ingrate. Owing to the failure of the ancients to work out this distinction, he did not find the right answer, namely, that gratitude, like pietas, is simply unenforceable. The son who has to be compelled by court action to support his impoverished, incapacitated father fulfills indeed a legal duty, and the state rests satisfied. No one will contend, however, that through this fulfillment by court order he has complied with the moral duty of pietas.
The great accomplishment of the Late Scholastics lay in the domain of the ius gentium. They cleared up, before Grotius, the ambiguous distinctions of Roman law that had crept in during the course of centuries. Ius gentium in the proper sense is not ius naturale, although the precepts of the latter are evidently valid for the ordering of the community of peoples. Thus differentiated, ius gentium is the quasi-positive law of the international community: it is founded upon custom as well as upon treaty agreements. The basic norm of this positive ius gentium is, besides the material principles of the natural law, especially the axiom, pacta sunt servanda. To positive international law belong the doctrines of war, truce and peace, international trade and commercial treaties, and, in addition, the law concerning envoys. But the requirements that a war must be just, and that the community of peoples must establish and foster friendly intercourse, pertain to the natural law.
From this ius gentium (most properly so called), they further distinguished international private law. The latter contains norms regarding legal institutions that are common to nearly all peoples, and hence are closely related to the natural law. Such are the general formal legal institutions touching purchases, leases, promissory notes, contracts, ownership, the family and inheritance. For, despite regulations that differ in detail, all these legal institutions have, among almost all peoples, many things in common over and above their natural-law foundation.
The Turning Point: Hugo Grotius
Among historians of philosophy the view prevailed for some time that René Descartes (1596–1650), a deus ex machina as it were, founded modern philosophy with its primary, indeed almost exclusive, concern with the thinking subject, with the study of individual consciousness and experience. But this view has long since been shown to be unwarranted. Descartes’ philosophical system was no creation ex nihilo. The latest research has conclusively demonstrated. Descartes’ connection with Scholasticism. There existed before Descartes no “desolate waste of scholastic subtleties and sophistries.” What did exist was a great philosophical system, and Descartes still stood in its stream, as the history of the various philosophical problems proves.
Quite as untenable is the view, long held, that the doctrine of natural law began with the Dutch scholar, Hugo Grotius (1583–1645), often hailed as the Father of Natural Law. For Grotius was still closely connected with the teachers of the preceding centuries. He stands out more through the first formal inclusion of natural law and positive law in international law than through any intellectual contribution of his own. He may be said to have marked the transition from the metaphysical to the rationalist natural law. The notion that the natural law would still have some validity, etsiamsi daremus … non esse Deum, aut non curari ab eo negotia humana,1 played a certain role in his thinking. Yet Grotius did not profess the implied complete autonomy of human reason as the sole and not merely the proximate source of the natural law. He considered God to be the highest source of the natural law, and he likewise regarded Holy Scripture as a principle of knowledge on an equal footing with reason. Grotius still lived too much in and with tradition to be able to construe the natural law in a deistic manner.2 He understood recta ratio in the same sense as did the great Spaniards. One may even say that, in a world which had forgotten the achievement of past ages, his celebrated definition of natural law represents an attempt to settle by compromise the controversy between Suarez and Vasquez, a controversy that bulked large in his day.3
The famous definition runs as follows: “The law of nature [ius naturale] is a dictate of right reason which points out that an act, according as it is or is not in conformity with rational [and social] nature, has in it a quality of moral baseness or moral necessity; and that, in consequence, such an act is either forbidden or enjoined by the author of nature, God.”4 Here, in fact, is Vasquez’ doctrine of lex indicans combined with Suarez’ intention to bring out the character of the lex naturalis as lex, which, in its coming into force or in its existence, is derived from the will of God. In addition, the significant adjective socialis occurs in the same way among the Late Scholastics for the purpose of distinguishing and contrasting lex naturalis and ius naturale. In Grotius’ thought the socialitas of rational nature was not yet, as it was to be for Pufendorf, the sole source of natural law.
Grotius followed the Scholastics even in his psychology. He placed the rectitude of voluntary action in a twofold conformity: that of the intellect with the thing or object, and that of the will with the intellect. Nevertheless his design of vindicating the absolutist doctrine of James I of England drove him back again to the primacy of the will. He accordingly defended the nominalist doctrine that essentially bad acts are evil, not because they are intrinsically at variance with God’s essence, but because they are forbidden by God. Of course he looked upon the further question of why God in His freedom has so decreed as unanswerable by human reason.
The Late Scholastics had sought to determine the relationship between law and morality from the standpoint of the virtues: right is the specific object of justice as distinguished from the other cardinal virtues (prudence, temperance, fortitude). In its threefold form (commutative, distributive, and legal), justice regulates the social relations: first, of those possessed of equal rights; secondly, of public authorities to their subjects; and thirdly, of citizens to public authorities or to the state. In Grotius’ system sociality plays a disproportionate part. Law is that which results from the appetitus socialis. Morality has little to do with sociality; it rather represents normative judgments concerning the worth or worthlessness of things.5 Furthermore, like Suarez, Grotius did not regard the debitum ex pietate as a debitum iustum, since it is neither subject to an action at law nor enforceable. Again, as among the Greeks and Scholastics, the ancient conception of justice as virtue itself is found in his writings. Thus the ius naturale comprises the whole of natural ethics.
It was unfortunate for Grotius that he gave little or no heed to the circumstances which the Scholastics had always stressed: the circumstances and conditions which in the case of the affirmative precepts of the ius naturae determine the application of a norm that in itself is unchangeable. (Suarez says, for instance, that obedience to the state in time of war takes precedence over the natural-law duty of a son to care for his parents.) The Scholastics had held that only the first principle of the natural law is clearly evident, and that at most the immediate conclusions (the Decalogue) share in such evidence, which, however, may yet be obscured by the passions. On this ground they had acknowledged the necessity of positive law, whose function, they contended, is to enlighten us on the good to be done and by penal sanctions to restrain us, dominated as we are by our passions, from the evil to be avoided. But Grotius was a rationalist. He believed it possible to derive by strict logic a suitable system of rational law having force that would be great enough to bind the will: a body of law with detailed prescriptions covering debts and property, the family institution and inheritance. The Scholastics, on the other hand, considered only the general institutions themselves of marriage, property, and contract as belonging to natural law, not the particular prescriptions about marriage and the family, possession and the form of private ownership, and the like.
Grotius’ undying merit was his systematizing of international law, which he placed upon the solid foundations provided by natural law. Grotius, who paid homage to his predecessors, to Vittoria and Suarez among others, lived in an age of fierce wars. The civitas christiana was being rent asunder in its great civil war (Thirty Years’ War, 1618–48), which, like all civil wars, was being fought with enormous cruelty and frequently outside the pale of legal norms. In the midst of all this, however, he put forward with great power and impressiveness, cogently and systematically, the idea of the rule of law even in wartime. He thereby revived the intellectual unity of the West, after its religious unity had been rent, by means of the great traditions of the very Christianity which had always honored reason. Thus he substituted intellectual solidarity based upon reason for solidarity based upon a now divided faith.
Yet it must be said that Grotius, precisely because of such rationalism, was not so happy in his treatment of the ius gentium as were the Late Scholastics. The clear separation between the natural-law contents and positive contents of the ius gentium, as occurs in Suarez’ treatment, was, at the hands of Grotius, again partly lost. The path was thus cleared for Pufendorf’s equation of ius naturale and ius gentium.
Grotius thus stood in the twilight between two great epochs. Still linked by many ties to the preceding age, he yet served to transmit to the natural-law theory of the modern period its distinguishing marks: rationalism, sociality, and particular political aims. In all this he resembled Descartes, whose close connection with the epistemology and metaphysics of Late Scholasticism has been uncovered by recent research. Nature makes no leaps: this axiom is valid also in the history of thought. Historians of philosophy, unfortunately, sometimes mistake emphasis for novelty.
The Natural Law in the Age of Individualism and Rationalism
The so-called age of natural law did not, properly speaking, commence with Hugo Grotius. It began rather with Pufendorf, who undertook to expound the doctrine of Grotius. The net result of the age was a disastrous setback, from the opening of the nineteenth century, for the natural-law idea among the modern philosophers and practitioners of law who were unacquainted with the older Christian tradition.
The new natural law differed in many respects from the traditional one. It represented a peculiar hypertrophy of the older conception. Numerous factors were responsible for this development, and they arose from the intellectual evolution and political circumstances of the period.
Humanism had declined, and with it had gone exaggerated esteem for antiquity in general and, in particular, for Roman law as ratio scripta. Roman law, in its degenerate form of usus modernus and with its many archaic-sounding formulas, could not satisfy this age of reason.
Deism in theology led to a high regard for the element of law in nature. It led also to an abhorrence of all sorcery, of belief in demons, of any supposed mystical influence of the transcendent Deity upon a world that moves in accordance with unalterable laws. A real enlightenment was declared necessary for a clear knowledge of the laws. Not faith, however, but reason was to provide such enlightenment. For the law lies in reason, and speculative reason is able to derive from itself, from contemplation of its own abstract nature, all laws, all morality, and all right in the form of axioms. Indeed this holds good even if there be no God, who thenceforth appears as merely the ultimate source of morality and law (apart from the continuation of tradition at the hands, for instance, of Leibnitz and the theologians). Whole systems of ethics and law were now worked out in minute detail by scholars who were carried away by a veritable passion for speculation. Such speculation also differed considerably from the prevailing inferior law which still recognized sorcery, belief in demons, and things of a mystical nature.
Furthermore, a jurisprudence adapted to the needs of the administrative machinery of the centralized absolute monarchy seemed, at least in the eyes of the rationalists, out of the question on the basis of the existing law. For this law was split up according to provinces and estates or social classes. Besides, its feudal forms had been rendered antiquated by the rise and growth of capitalism; it had also become rigid and unsuited to the time in the case of privileged guilds, not to mention the monstrosity of imperial law which no less a person than Pufendorf had so thoroughly ridiculed in a work, De statu imperii, that appeared under a pseudonym.
The thesis of the autonomy of human reason, as well as the view that the existing law constituted unwarranted fetters, was closely bound up with the nascent socio-philosophical individualism of the age. The clearest manifestation of this individualistic bent is found in the doctrine of the state of nature, which now became the starting point of natural-law speculation after having been in the Middle Ages but a condition of mankind with theological significance alone. (The difference may be schematized thus: the natural law as the idea of law in and above the necessary positive law—the natural law as law of the state of nature before and above the positive law.)
From the same source stemmed the peculiar methodological starting point of all these systems of natural law. Thinkers did not set out, as in the earlier period, from the essentially social nature of man in which the entire order of social institutions (marriage, family, state, international community) and the basic norms of these exist potentially in such a way that the essence is fulfilled only in the completion and hierarchical ordering of social forms through the various “imperfect” societies up to the “perfect” society. The point of departure was empirical nature discovered by means of abstraction, from whose psychological motive force, viewed as fundamental, the system of ethics and of natural law was deduced in a rationalistic manner. For Hobbes this was selfishness; for Pufendorf, sociableness as mere formal sociality; for Thomasius, happiness, i.e., “praiseworthy, pleasant, carefree life.”
In this way a whole detailed system of natural law was in existence, or was considered to have been in force, before social life, with its essential forms and with the historically contingent particularities of such forms, had worked itself out in history, i.e., had evolved after the manner of an entelechy. This natural law was held to cover the civil law of contracts, the family, inheritance, and property; it was even made to include procedural law and especially constitutional law. Surrounded with the halo of naturalness and reasonableness, the various natural-law systems accordingly signified, in respect to existing conditions that cried out for reform, an ideal which the codifications of the close of the eighteenth century sought to realize, whether in a revolutionary (Rousseau) or conservative (Hobbes) or reformist manner (enlightened despotism). With all this was now readily combined the ancient Stoic glorification of the pre-political state of mankind, except where this condition was construed by Hobbes, as already indeed by Epicurus, as a war of all against all.
To these favorable factors of an ideal order corresponded practical ones that were no less favorable. The Enlightenment was first of all an affair of the ruling class, the nobility and the intellectuals of the age, clerics and men of science. The latter, however, were encouraged by the princes precisely because and so far as these recognized their function of governing as a duty. Enlightened despotism, to use the label current in resentful liberal circles, was a great patron of the natural law or, as it henceforth was usually and quite significantly styled, the law of reason. For this law placed in the hands of the princes the weapons with which to break down the class privileges of the nobility, and perhaps of the guilds and provincial estates as well, which hampered the uniform administration of the state. Furthermore the Enlightenment with its accent on education assigned to the state the task, through the agency of the police, of educating the citizen and of making the state wealthy in the mercantilist sense.
Thus this individualistic natural law was especially adapted to loosen the traditional, hardened social order and to furnish the princes with subjects, not, of course, as mere objects of arbitrary will, but as legal subjects with innate subjective rights. They were then, as objects of education, admirably suited to the higher idea of man that was proper to the Enlightenment. If, therefore, the individualistic root of this natural law was everywhere the same, this was in no way the case regarding the liberalist consequences which resulted from it when deeper thought was given to the matter. These consequences appeared in Rousseau’s system and in the French Revolution, as well as in the natural-law doctrines of Locke and of early German liberalism: what was desired was a bourgeois natural law. They were wanting, however, both in Hobbes’ doctrine and in the natural-law systems of Pufendorf and Thomasius.
Closely connected with this political consequence, whether of the police-state with its educational function or of the liberal state with its restricted function of guaranteeing individual liberty, was a further break with tradition on natural-law grounds. This newer natural law constituted the first attempt to construct a lay or secularist theory of ethics and politics. Hobbes’ purpose in devising his doctrine of natural law was admittedly the destruction of independent ecclesiastical law. His aim was to subordinate the latter to, and incorporate it in, the natural law of the omnipotent and sole person of the state represented by the monarch. Enlightened despotism likewise held the view that the Church, though indeed of importance sociologically and practically, was but a division of the cultural and educational department of the absolute monarchy. The peculiar totalitarian character of the ius naturae of that period, identical as it was with moral philosophy, was the means adopted for forcing the Church into the service of the state.
Moreover, rationalism and the Enlightenment had rendered the old, mystical foundation, which had emerged from the semiobscurity of immediate divine origin, incapable of supporting the state and royal power. Now, however, the doctrine of a state of nature together with the various contract theories concerning the transition to the status civilis afforded a new basis, though an insecure and perilous one. The same intellectual device served Hobbes for laying the foundation of state absolutism; it served Pufendorf for laying the foundation of enlightened despotism, which denied the ancient, traditional right of the people to resist; and it served Rousseau for laying the foundation of the sole admissible omnipotence of the democratic state. The French revolutionaries also made use of it for reducing state functions to a minimum; for establishing the rights, acknowledged also on other grounds, of man and of the citizen; and for vindicating the right to resist the power of the state (Constitutions of 1792 and 1793). “The tamest and lamest theories, no less than the preaching of world betterment through the guillotine and the French wars of conquest, were carried out in the name of the law of reason. Natural law was an intellectual trend, not a uniformly expounded doctrine” (Pfaff and Hoffmann).
For social reformers, that is, for enlightened despots and for social revolutionaries like Rousseau, this magnified natural law based on individualism thus became the starting point. It was set down in constitutions as fundamental law. In the comprehensive codifications of the time it served to break down the organization of society by estates and to build up the modern bourgeois social order. As a special science, however, or as a general conviction, it thereupon vanished just as quickly. This outcome was caused either by the achievement of such eminently political aims of a natural law with reformist or revolutionary overtones; or by the fact that after the climactic orgy of 1793–96 the goddess Reason was deposed and History (Haller, De Maistre, Donoso Cortes) or rather Providence, working in history and discernible in its activity, was again enthroned.
What differentiated this newer natural law from the ius naturale perenne were not of course its political aims alone; these were merely more conspicuous. The essential distinguishing mark was the importance of the doctrine of the state of nature, which attained, as in Defoe’s Robinson Crusoe (1719), such unexpected and widespread popularity. Thence stemmed the pregnant ideas of liberty and equality. And fully in keeping with it was also the comprehensive moral philosophy of deism, which concealed itself under the title of ius naturale and, after first disregarding the eternal law, finally culminated in the complete moral autonomy of reason (Kant).
The individualist starting point led also to a failure to recognize the necessary forms of social life. If the past had looked upon these as, so to speak, germinally contained in the idea of man, they could now, from the standpoint of the free individual, be regarded only as status adventicii, as superadded for various, nonessential reasons: sociality, utility, or mere external perfection. In view of the original freedom, they could no longer be acknowledged as intrinsically necessary; in their contents as well as in their existence they must be founded solely upon free association, upon the free contracts of individuals. For this type of natural law the contractual form is the basis not only for the coming into existence of concrete social forms, but also for their normative contents. The essence of social forms is not something objective; it is rather, like their existence, dependent upon the will of individuals. For the individualist doctrine there exists, as has already been stated, no categorical or a priori sociality of man as such, but only a pure sociability. In keeping with this view was a political theory that manifested itself in the two extremes of Hobbes’ omnipotent monarchy and Rousseau’s omnipotent democracy: the princely police-state with a maximum of functions and the constitutional state of 1789 and later with a minimum of functions. Individual rights belonging to the state of nature were viewed either as definitively surrendered in the political and governmental contract (Hobbes), or as inviolable and hence to be brought over intact into the status civilis.
These natural-law doctrines displayed little understanding of the graduated order of the forms of social life that resides in the nature of man as a social animal. They showed no appreciation for the family as a social institution with an essential end of its own (they dealt only with marriage and the parental relationship). They showed no concern for the occupational-group or corporative structure, hence for the multifarious social forms that in all domains of life lie between the state and the individual. They showed no regard for the well-known principle of subsidiarity, according to which the highest community, the state, should leave to other associations the functions and ends which these should and can fulfill. They knew, in effect, only the harsh antithesis of individual and state. They likewise lacked an understanding of the particular nature of the Church as a “perfect” society: it became either a department of the state or a spiritual free fellowship, not an institution.
These specific types of the newer natural law, so varied in their consequences, manifested themselves most clearly in Hobbes, with his pessimistic view of man; in Rousseau, who took an optimistic view of human nature; in Pufendorf and Thomasius, who lived in the shadow of enlightened despotism; and, finally, to say nothing of the numerous mixed forms, in Kant.
It was here that the definite break with tradition took place. From the time of Pufendorf fun began to be poked at the “fancies of the Scholastics.” From here on, an anti-Aristotelian nominalism became, expressly or tacitly, the basis of philosophy. And it is permissible to believe that this disdain for tradition was later avenged when, in the nineteenth century, this natural-law thinking came in turn to be disparaged. Indeed, the same failure to understand tradition then led the nineteenth century to assume that, by refuting this natural-law doctrine of the seventeenth and eighteenth centuries, it had overthrown the natural law itself with its philosophical tradition of over two thousand years.
The entire theory of Thomas Hobbes (1588–1679) amounts at bottom to a denial of the natural law. The English thinker, who stands forth as a gloomy fellow-traveler of Epicurus, the cheerful ancient, pictured the state of nature as a savage, lawless condition of war of all against all, as chaos. Here we have another illustration of the relationship that exists between epistemology and moral philosophy. Hobbes, the nominalist of Occam’s school, held that reason is utterly unable to know universals, i.e., ideas. Words denoting universal concepts are mere names. Reason finds itself obliged to devise and assign them arbitrarily, without any foundation in fact and reality, for the purpose of introducing order into the chaos of sense impressions. In moral philosophy, too, the passions hold first place. Man in the depths of his being is what the state of nature shows him to be: a wolf, wicked, devoted solely to self. In the state of nature, consequently, there exist only lawless individuals, in whom is found no natural tendency to live in society; and man’s life is “solitary, poore, nasty, brutish, and short.”1 The war of all against all is the reverse side of the widely cherished and taught right of all to all things. In reality, no law of the status naturalis exists, as we find it in the dreams of Rousseau and in the fanciful deductions of Pufendorf and many of his disciples.
The same selfishness and the dictates of right reason, that is, the consideration of one’s greater advantage and of peace, determine the individuals to enter by way of a covenant into the status civilis and to give up as many of their rights to everything as may make peace possible. But, that peace may be possible, all contracting parties must yield their rights to the Sovereign, the state personified, whether this be organized through the covenant in a monarchical manner or in a more or less democratic manner; either form is admissible, according to Hobbes.2 Moreover, properly speaking, only this covenant, which springs from the basic natural-law norm of self-preservation, is natural law. For Hobbes, then, the natural law, despite all the formulas he adopts and cites from time to time, is wholly comprised in the axiom, “Agreements must be kept.” Upon this fundamental principle is based the will of the omnipotent state, so that henceforward all law is but public authority; it is but the positive law of the state, inclusive of Church law. The political aim of the Hobbesian natural law, the ideological justification of absolute government (especially of the Stuart kings), becomes exceedingly plain here. Hobbes, whose individualism led him to insist that contract affords the sole possible basis of rights, derived from the principle that agreements must be kept even a son’s duty to obey his father, and so on. The reckless rationalism of the man found expression both here and in his demand that in speculation one must start by viewing men as beings that have shot forth from the earth like mushrooms, as at once full-grown.3 From his individualism sprang likewise his antagonism toward corporative organizations like the guilds and other self-governing economic and social groups. As sharers in the absolute power of the sovereign or limitations upon it, he considered such bodies directly opposed to the natural law: they are “like wormes in the entrayles of a naturall man.”4
In the hands of Hobbes, therefore, the natural law became, paradoxically enough, a useless law, compressed into the single legal form of the social and governmental contract of subjection. The natural law effectively comprises only the basic norm, “agreements must be kept,” if one disregards the still more paradoxical natural law of the state of nature with its norm of selfishness. All else is pure will. Hobbes’ doctrine is the theodicy of Occam secularized, and the extreme consequence of the proposition that law is will.
Thus Hobbes altered the meaning of the words “nature” and “natural,” a process that characterizes the entire period of modern philosophy from the time of Descartes. “Nature” and “natural” become the opposite of civitas, “reason,” and “order.” In the philosophy of Hobbes and Baruch Spinoza (1632–77) human nature is at bottom governed by the passions and not by reason. The status naturalis is a condition without any obligation or duty. It is a state in which, as Spinoza repeatedly asserts, might is right. This natural state of man is ruled by two things: fear of the might of others and power to instill fear into others. Hobbes denied that man has a natural inclination toward mutual help and love, which St. Thomas speaks of so frequently. Hence law and the order of law cannot be derived from human nature; they become the work of the sovereign. What remains of the older conception of human nature as the source of natural law is the contention that the state originated in the fear of violent death and in the urge to render life and property secure. The state, together with its law which has its source in the absolute will of the sovereign, is the savior of man from the natural law of “might is right”; it affords security and protection by monopolizing all power; and it demands as a price strict obedience and subordination through identification of natural law with positive law.
The older idea of natural law as an ethical system with material contents thus loses all its functions: namely, to serve as a moral basis for positive law; to give men a standard and critical norm for the justice of positive law; to represent the eternal ideal for which the historical state, as lawgiver and protector of justice, ought to strive. As a consequence the state, unlimited because even the revealed divine law is authoritatively interpreted by it, becomes, in Hobbes’ phrase, the “Mortall God.” No appeal from this all-powerful being to natural law is possible, because the state is law in all its plenitude. In reading Hobbes we can feel the solemnity with which he invests the state, the sovereign power, a solemnity which earlier centuries reserved for God Almighty. What Hegel later says of the idea of the state, Hobbes, the nominalist denier of ideas, asserted of the individual historical state. The consequence of this change in the meaning of “nature” is thus clear. Since nature is bad, and since the status naturalis is a condition of “warre of every man against every man,”5 the state becomes good, and its positive will becomes the supreme norm of justice, admitting of no appeal. The phrase “Mortall God” is to be taken literally, not as a mere figure of speech.
The philosophy of René Descartes underlay another shift in the meaning of human nature. From this shift sprang, as from its source, the individualist and starkly rationalist strains of the newer natural law. According to St. Thomas, it is, properly speaking, neither the intellect nor the senses that understand, but man through both; the natural law is a participation in the eternal law; and the moral law is objectively “given” in human nature and in the essential order of things. For Descartes, on the other hand, man is a res cogitans, a being that thinks. It has indeed been pointed out by Jacques Maritain that Descartes gives man the intellectual power of an angel, that his is an angelic epistemology. Descartes holds that man, from his innate ideas, from the ideas present in his consciousness, can construct the world along the lines of mathematical reasoning, the ideal of science. All that man needs to do is constructively to develop what is in human reason, that is, the innate ideas. The individual intellect or reason thus becomes self-sufficient. It does not need the educative cooperation of other minds. Thus the very spiritual root of sociability is denied. Through his “angelism,” therefore, Descartes became the father of the individualist conception of human nature.6
But this is not all. The doctrine of the res cogitans, of self-sufficient human reason that has now become the nature of man, led to a passion for systematic constructions so typical of rationalism. According to St. Thomas, human reason was never the criterion of truth. The ordo rerum, of which man’s nature is a part, is the measure of man’s knowledge. Things themselves, as objective data, measure the human mind. But the angelic qualities of Descartes’ res cogitans, as well as the view that all truth exists germinally in the mind, render the objective ordo rerum superfluous. Suarez’ prediction of what would happen should human reason be made the source of the natural law now came true. Rationalism soon made human reason and its innate ideas the measure of what is. Human reason could now indulge in the uncontrolled construction of systems that has ever characterized the natural law of rationalism.
This process reached its climax in Kant. Human reason now becomes the sovereign architect of the order of knowledge; it becomes the measure of things. The objective basis of natural law, the ordo rerum and the eternal law, has vanished. What was termed natural law is a series of conclusions drawn from the categorical imperative and from the regulative ideas of practical reason, not from the objective and constitutive ordo rerum. These regulative ideas received their somewhat dubious validity from the feeling that without their validity human moral life would be impossible. The ensuing materialism, however, proved only too quickly that this argument lacks force, and that man can live, at least when human nature becomes a purely biological entity, without such regulative ideas. What a fall of the angels! At the beginning of the development lay Descartes’ “angelism”; at the end emerged materialist naturalism: man the angel became man the higher animal. From a being whose reason is the supreme source of morality man became a powerless agent governed by the conditions of economic production.
John Locke (1632–1704) was as individualist in his social philosophy as was Hobbes, though he rejected Hobbes’ glorification of the state as the “Mortall God” and denied that the Leviathan is the exclusive source of law. Although Locke, in opposition to Hobbes and Spinoza, depicts the state of nature as idyllic, as a condition of peace, good will and mutual help, he contends that the state, or rather government, is in practice indispensable. For Hobbes the function of the status naturalis and of the idea of natural law is merely to furnish a basis for the institution of the status civilis and the positive law, whereupon the natural law disappears. For Locke, on the other hand, the function of the state of nature and of the idea of natural law is to establish as inalienable the rights of the individual. But these rights by no means vanish in the status civilis; indeed, the true purpose of the latter is the more perfect preservation and development of such rights. Thus these innate and indefeasible rights of individuals afford an ultimate criterion for judging all acts of the government and all laws of the state. The rights to life, liberty, and estate or property make the law; the law does not create them.
‡Locke’s philosophy of law does not view the law as an objective order of norms out of which individual rights flow by intrinsic necessity; the rights of the individual are prior, and in them originates whatever order exists. Order is consequently the product of contracts between individuals, who are induced by their rather selfish interests to enter into these contractual relations. The status civilis is thus not the objective result of man’s social nature itself: it is not a realization, through man’s moral actions, of the natural order in the universe. The state is the utilitarian product of individual self-interest, cloaked in the solemn and venerable language of the traditional philosophy of natural law. Locke substitutes for the traditional idea of the natural law as an order of human affairs, as a moral reflex of the metaphysical order of the universe revealed to human reason in the creation as God’s will, the conception of natural law as a rather nominalistic symbol for a catalogue or bundle of individual rights that stem from individual self-interest. Any order of law is accordingly the product of the contractual will of the individuals concerned, and it has for its object the protection and promotion of individual self-interest. The characteristic note of individualism (the preponderance of commutative justice and of self-interest over distributive and legal justice and the common good) is obvious in Locke’s thinking.
The hidden root of this position is, of course, an overconfidence, born of optimism, in the typically individualist presumption that the common good is nothing real, that it is merely the sum of the particular goods or interests of individuals. If this is true, the free pursuit of self-interest on the part of individuals who are restricted only by the like freedom of others must work like the “invisible hand” of Adam Smith and produce, as it were automatically, a sort of social harmony.
The concept of natural law had thus degenerated from an objective metaphysical idea into a political theory which sought to justify and promote definite political changes. But the uselessness of such a degenerate concept, once these political changes had been effected and consolidated, is evident. The idea of natural law, once the eternal objective norm of all social life, served Hobbes as a means of establishing the absolute rule of the state as the “Mortall God.” It served Locke as a means of vindicating the “Glorious Revolution” of 1688–89 and of laying the juridical foundations of bourgeois society. It served rationalism as a means of promoting the codifications of law at the hands of princely absolutism, which was the destroyer of feudalism and medieval constitutionalism, and hence as a means of strengthening the bases of bourgeois society.
But Locke’s empiricism in epistemology undermined the philosophical bases of the natural law at least as much as this political theory endangered its very idea. Thus Locke prepared the way for the destructive criticism of Hume and Bentham. Basically a skeptic in metaphysics, Locke could not attain to certainty in moral philosophy, a prolongation of metaphysics. His moral philosophy, had he ever worked it out, would have ended in a barren utilitarianism of the Benthamite type. But Locke, quite unaware of the implications of epistemological empiricism and oblivious of the consequences of his skepticism concerning metaphysics as the basis of any valid theory of natural law, contented himself with a belief in natural law as a dictate of common sense. His feeling for political realities, as well as the fact that the English common law retained many of the traditional concepts of the natural law, prevented him from drawing the conclusions to which Hume’s acid criticism would later lead. In Locke, therefore, we have an excellent example of the revenge which common sense so frequently takes upon empiricists and philosophical skeptics. Locke allowed his common sense to affirm in practice what his philosophy implicitly denied. In this he was like Karl Marx, the most typical instance of such behavior. Marx was wholly intent upon destroying, as a merely instrumental ideology, the ideas of justice and truth. Yet at the same time he thundered like an Old Testament prophet against the injustices and deceits of bourgeois society and philosophy. He thereby implicitly affirmed justice and truth as objective and transcendent, and not as merely relative to and immanent in the conditions of socio-economic production.
The doctrine of Jean Jacques Rousseau (1712–78) stands almost diametrically opposed to Hobbes and his conception of the natural law. Hobbes’ theory glorifying absolutism had aroused a strong reaction. Although this reaction, led by such thinkers as Locke, Montesquieu, and Hume, did not go so far as democracy, it was transforming the freedom of subjects in the unlimited monarchy into constitutionally guaranteed natural rights (power checks power and creates the condition of freedom). This line of thought attained its harshest expression in Rousseau.
Whereas for Hobbes the state of nature was a “warre of every man against every man,” the Geneva dreamer preached a state of nature that resembled the biblical Paradise. For Hobbes the state, the legal order, and consequently goodness, are, in the interest of mere order, the goal of an historical philosophical movement that wishes to be rid of nature, of the status naturalis, and to attain to the status civilis in which the ruinous liberty of human wolves comes to an end. For Rousseau, on the contrary, the status civilis and the objective, enforced order of unfreedom in the state constitute precisely the condition of corrupt human nature, whereas the state of nature is, taking an optimistic view of man’s nature, exactly what it ought to be. “Back to nature” was, in Rousseau’s teaching, something more than a game played by a bored and snobbish nobility. Civilization, in the literal sense of becoming a civis (citizen), only then does not spell ruin when the original, natural rights of liberty and equality form the essential reservations of the social contract. Men do not have to enter into the social contract. They enter into it freely; they are driven by no mysterious impulse out of the war of all against all into the enforced peace of absolutism. But they can enter into it because it is their will, the will of everyone in the general will that now comes into being.
At bottom, for Rousseau the historical status civilis is the world after man’s fall, whereas the status naturalis was the garden of Eden. Consequently, the state as such, as ordo rerum humanarum, is not a necessary, ethical institution; it is but the minister of human rights. It is for this reason that the right of revolution exists, if natural rights are violated by the positive law. Rousseau’s fanatical passion for liberty, virtue, and right lived on in the men responsible for the Reign of Terror of 1793–94, in men like Robespierre. The highly emotional way Rousseau treated of liberty and man’s unalterable rights accomplished more in this respect than the specific doctrinal passages of his books. Besides, he had less influence upon the thought of the age of natural law, upon the countless treatises of ius naturae et gentium, than upon the publicists and political writers of the time.
The era of natural law as a homogeneous epoch in the history of ideas was determined far more by the jurists and philosophers and their systems than by Rousseau’s emotional philosophizings that were becoming the daily reading matter of the educated classes. Therefore the historical school of law directed its attacks chiefly against the former, whereas the conservative school and the writers inspired by the romantic movement (e.g., Burke, De Maistre, De Bonald, Goerres, Arndt) were more concerned with refuting Rousseau.
This period, celebrated in the history of ideas and of science as par excellence the age of natural law, is chiefly associated with the names of Pufendorf, Thomasius, and Kant. Side by side with these, however, innumerable scholars of lesser renown were active in the professorial chairs established at that time for the ius naturae et gentium. They were filling the libraries of educated people, government officials, and judges with numberless systematic but conflicting expositions of natural law. With few exceptions (e.g., Wolff, Zallinger, Schwarz) these men claimed that they were the first to discover the natural law or to free it from the fancies and verbiage of the Scholastics. It was precisely this break with tradition that was responsible for the confounding of this doctrine of natural law with the perennial idea of the natural law. So it was, then, that the nineteenth century could believe that, with the refutation of this doctrine, the natural law itself had been proved a chimera. This was an extremely fateful fact in the history of the philosophy of law as well as in the history of philosophy in general. Or was it not fateful that Pufendorf was well acquainted with scarcely a single Greek or Scholastic, and that Kant, the watershed from which flow so many and such varied streams of modern thought, knew Aristotle and St. Thomas only from a very imperfect history of philosophy?
The decisive differences between this newer natural law and that of the Scholastics are three in number. The first is the individualistic trait manifesting itself in the predominance of the doctrine of the state of nature as the proper place in which to find the natural law. The second is the nominalist attitude which found expression in the separation of eternal law and natural moral law, of God’s essence and existence, of morality and law. The third is the resultant doctrine of the autonomy of human reason which, in conjunction with the rationalism of this school, led straight to an extravagance of syllogistic reasoning, of deductively constructed systems that served to regulate all legal institutions down to the minutest detail: the civil law governing debts, property, the family, and inheritances as well as constitutional and international law. And, in contrast with the imperfect historical law, these legal systems possessed the inestimable merit and value of emanating from the pure rational nature of man.
These differences especially characterized the leading figures of the new school of natural law, Pufendorf and Thomasius. The latter was particularly concerned with separating morality and law. He thereby stands out in the history of philosophy as a precursor of Kant.
Samuel von Pufendorf (1632–94), in his concept of man’s nature, did not take man in his teleologically determined totality of human nature. Man is not essentially social, so that, as earlier thinkers had held, the essential forms of community living evolve by inherent necessity out of his natural tendency for society. On the contrary, he should develop sociality because it is of advantage to him. Man is an animal sociabile, not sociale. What had for earlier thinkers been but a sign of man’s internal and natural tendency, a realization of his nature itself in time, became in the newer natural law mere capability, mere impulse. Accordingly, empirical nature and any impulse or capacity whatever (sociality or, as in the case of Thomasius, felicity) formed the starting point of speculation. The presupposition of such natural-law thinking is the individual as an isolated being in the state of nature, hence abstracting from the essential forms of human nature as such that find expression in the historical forms of state, law, marriage, and family. Wherefore Pufendorf proceeded to set forth how man in the original state of nature, abstracting from the historical status civilis, from positive law and from the legal order, has as an individual to behave toward God, toward himself, and toward his fellow men.
Pufendorf first draws up a list of duties toward God, i.e., principles of natural religion, and then, in a most exhaustive fashion, a catalogue of duties toward oneself and toward others. Such duties toward others are, for instance, that everyone must keep his word, must not swear falsely, must be sincere in speech. He shows what norms for the acquisition and use of property, for marriage, the family, and inheritance, can and must be deduced from reason alone. He describes the procedural law in the state of nature, and he indicates the norms of distraint which must find application in that state. Thus in reality the entire positive law, so far as it has to do with the civil law and its procedure in lawsuits, is straightway transformed into natural law. It logically becomes supra-historical or prehistorical (in Pufendorf’s case) and in itself unalterable. But the status civilis is a superadded status with laws that in final analysis are only formal.
Because of its revolutionary possibilities, however, the basically critical attitude shifted at once to a conservative one: the existing law is in itself good, and is merely in need of reform. The law of the state of nature is an ideal law, a model law; it is not a law that is actually in force. This follows from the determination of the relationship between positive law and natural law. The former is needed on account of the sinful propensities of men, who cannot adequately be kept in order through mere knowledge of the natural law and solely out of reverence for it. Hence the public authorities enact positive laws in order that the natural law may be observed. As soon, then, as the state is founded as status adventicius in virtue of the original contract, and as soon as a sovereign authority is set up by means of the governmental contract, man must comply with the positive laws by reason of the fundamental principle of natural law, “agreements must be kept.” The distinction between the prescriptions which pertain to the prohibitive and directly binding natural law and the further norms of the hypothetical natural law (the ius naturale permissivum of the older writers) made it possible for Pufendorf to explain all positive laws as hypothetical natural law. In this way the whole body of concrete civil laws (the laws concerning debt, property, the family, and inheritance, in particular the modes of acquiring ownership, conveyance by will and succession, the monetary system and contracts involving monetary considerations), i.e., the entire contents of those positive laws which were viewed as necessary, became natural law. The preceding age, on the other hand, had conceded to only a few basic norms (Decalogue) the dignity and grandeur of natural law.
Pufendorf’s theory of international law throws light on his doctrine of natural law. Princes and states live in the status naturalis, since no status adventicius, no civitas maxima, as yet exists. Hence international law consists merely of natural law. There is no positive international law because there is no sovereign authority. Measured by the contributions of Grotius and the Late Scholastics, this view marks a great stride backward along the path which Hobbes had already taken.
Those of his contemporaries who had not succumbed to the rationalist temper of the period charged Pufendorf with being “not much of a jurist, and a philosopher not at all” (Leibnitz) and with having totally abandoned tradition.7 As a matter of fact, Pufendorf had never understood the traditional view that moral philosophy with its partial content, the ius naturale, is a continuation of metaphysics, the science of being, which, when applied to the free will of rational man, becomes the science of oughtness. But his unrestrained and unhistorical rationalism arises precisely from this fact. The doctrine of the eternal law he had never grasped. It is true that he encumbers his writings with formulas culled from his readings. Yet they have there a different meaning, because they are torn from their proper intellectual setting. The ius naturale, therefore, is not related to God’s essence as a participation of the eternal law. It is rather, in typically nominalist fashion, placed in God’s will. It has to do with the external order of sociability as an actual fact. It is in force because God has so willed to create man; it was not in force, it did not exist, when man did not as yet exist. It is thus not a participation in the divine law, eternally present in God’s essence. It is “eternal” only so far as it is of the same age as man; hence it has only been in force since man has been in existence, since God created him. This position is diametrically opposed to the view of Arriaga and Grotius, that the natural law would still possess some validity even if there were no God.
This position, however, formed the basis of extreme rationalism. For henceforth not God’s essence, but human nature, viewed existentially as well as merely in the abstract, would be regarded as the source of natural law. Thence also originated the abstruse intellectual sport of a logically deduced law for man in the state of nature, as well as the widespread unhistorical attitude and the inability to comprehend Aristotle’s everlastingly true proposition, that outside the state (not society) man is either a beast or a god. For this line of thinkers the idea of law does not live in the historical legal systems, nor was the eternally valid natural moral law recognized as the essential norm from its exemplification in the legal forms. Rather, the natural law was derived from a purely imaginary state of nature, or from a state of nature that was supposed to have once existed (theoretically and without regard for concrete historical exemplifications). In practice, indeed, the improvements and reforms of the historical positive legislation that were deemed good, useful, and necessary assumed the guise of natural law. That explains the significant politico-legal function of this brand of natural-law philosophy of the Enlightenment.
At the hands of Christian Thomasius (1655–1728) the sociality of Pufendorf received a utilitarian interpretation. The aim of ethics is mastery of the passions, because these endanger the temporal happiness, i.e., the peaceful existence, of the individual. The supreme, central principle is therefore this: “Whatever renders the life of men long and happy is to be done, but whatever makes life unhappy and hastens death is to be avoided.” It is no longer sociality or an appetitus socialis that is the source of natural law, but rather, after the manner typical of the Enlightenment, it is the happiness of the individual. Instead, the forms of community life appear as mere status adventicii, not as essential perfections of man. Happiness consists in a pleasant, carefree life; and evidently it is attainable only through a virtuous, respectable, and just life. A man should live virtuously in order to preserve inner peace; respectably, in order that others may come to his assistance; justly, lest others be provoked and external peace be disturbed. Law is therefore something external and is unrelated to the honestum, to the morally good. It produces only external obligations, whereas morality produces only internal ones. Legal duties are enforceable duties; moral duties are subject to compulsion solely through one’s own conscience.
This conception reacted unfavorably upon the doctrine of the state of nature. The latter was interpreted in a pessimistic sense: legal force can be exerted only by means of self-help and self-defense. Hence the state arose by way of contract, merely out of considerations of individual utility. An external power is a more effective guarantor of external peace than is the individual’s right of self-help. Thus the absurdities mount.
The grandiose pessimism of a Hobbes possesses, by comparison, a consistency that is refreshing. Besides, Thomasius also drags in the old formulas, such as that of God as the ultimate foundation of the natural law. For him, however, this merely means that even the natural law owes its existence to God as the Creator of all things. But the ground of its validity is not God’s will, since in particular cases we know what God’s will is through revelation alone, not by means of natural reason. The principle of the natural law thus remains temporal happiness understood in a highly subjective sense.
The metaphysics of the natural law was by now altogether lost to sight. Deductive, autonomous reason could henceforth, without let or hindrance, evolve natural and detailed systems of law. Into such legal systems were admitted, of course, as unalterable and supreme postulates all those parts of the positive law which the individualistic spirit of the Enlightenment regarded as good, as well as whatever it considered worthy of enactment into law.
In the course of this evolution the individualistic trait grew steadily more pronounced. Pufendorf had already conceived of sociality, not as a category bound up with the nature of man, but as a capacity, a mere potency, a tendency. Marriage, the family, property, and the state are not institutions, derived from natural-law social forms, germinally present in the idea of social animal and proceeding of necessity therefrom (and hence in their essence independent of the will). They were viewed from the standpoint either of the advantage accruing to the individual or of their utility for a happy temporal life taken subjectively. As a consequence, too, it was not the family but marriage “relations” and the relations between parents and children, viewed as relations between individual and individual, that received attention. Such an approach was, of course, incapable of appreciating the position that the institution alone, considered in its essence, possesses natural-law character, whereas the juridical regulation of individual relations can be discovered in various ways from the evolution of society, and the positive law in turn from the whole complex environment; as in the case of paternal authority, forms of ownership, property rights in marriage.
Immanuel Kant (1724–1804) exhibits in his philosophy the individualist natural law in its final, highest form. Among German natural-law thinkers he was the most radical in making freedom of the individual the starting point of his system. Liberty or autonomy is the sole right that belongs originally to every man in virtue of his humanity. Man’s innate equality and the entire list of the other primal rights are comprised in it. As the supreme law of right, emerges the formula: “Act externally in such a manner that the free exercise of thy Will may be able to co-exist with the Freedom of all others, according to a universal Law.”8
This is likewise the basis of Kant’s allegedly great achievement: the separation of ethics and law, of morality and legality. That law essentially concerns the external order was, however, a tradition of long standing. Equally ancient was the corresponding view that legal duties are, without any self-contradiction, enforceable by physical means, in contrast to such duties as love, gratitude, and reverence (love of country, for instance, is unenforceable, whereas obedience to the laws of the state can indeed be enforced). But both classes had always been conceived as moral duties. Up to that time there were no merely juridical duties, even though there existed merely ethical duties, e.g., gratitude. Yet no one recognized any mutually exclusive opposition between ethical duties and juridical duties, although people knew how to distinguish them. Juridical duties are enforceable, and they are enforceable because without such enforcement there can be no durability to the social order, through which and in which the idea of man as a social animal finds completion. Permanence is a special attribute of law. Violation of the law is a negation of this order. But precisely because this order must exist, the fulfillment of legal duties is likewise always a moral duty. Consequently the state is not a pure apparatus for compulsion; it is always a moral community, too. Moreover, it does not live by law alone, though it lives in the law; it lives rather by the exercise of all the social virtues. Accordingly thinkers had in the past always assigned to the state as its essential task, to render the citizens virtuous.
Despite such accurate discrimination (precisely for the sake of morality as free fulfillment of duty), this inner connection was first torn asunder by Thomasius in the separation of ethics (equivalent to inner peace of the individual soul) and law (equivalent to external peace of society). Kant, on the other hand, replaced inner peace by autonomous freedom. Inner freedom, the moral autonomy of the individual person, is the sphere of morality. “A person is subject to no other laws than those which he (either alone or jointly with others) gives to himself.”9 External freedom, according to Kant, requires coercive laws; on this point he found himself in full agreement with tradition. Therefore, Kant infers, the condition of external freedom (i.e., law) is something purely external. Morality and law differ not so much by reason of the diversity of duties (e.g., justice, love of neighbor, filial and parental love) as because of the disparity of legislation. The motive of moral legislation is duty, derived from the autonomy of reason and appearing in the form of the categorical imperative and practically deified by Kant. The motive of juridical legislation is not morality but the keeping of external freedom, the carrying out of the coercive measures that are necessary thereto. The legal order is devoid of moral character. “Hence ethical legislation cannot be external (not even that of a divine will).”10 Thus the impersonal, formal, categorical imperative takes the place of the eternal law. The natural law, therefore, as part of the lex naturalis, is no longer connected with the eternal law, for the very reason that it can no longer be understood as part of the lex naturalis, of the rational moral law. Furthermore, not enforceability but external physical force is directly and necessarily included in the concept of law.
Freedom as a starting point and first principle of the natural law in its purely formal character renders impossible a material natural law, a natural law with a material content. This follows also from Kant’s pronounced dualism of speculative and practical metaphysics, the coordinated knowledge contents of theoretical and practical reason. Theoretical reason affords no sure knowledge of the essence of things; it can posit the existence of external reality only as a postulate. Practical reason alone yields certitude about the metaphysical. Practical reason “believes” in God, freedom, and immortality, things which theoretical reason is unable strictly and necessarily to know and demonstrate from the world of phenomena; for without them morality would be impossible. This primacy of the practical reason parallels to some extent the nominalist contention that the will is a higher faculty than the intellect and that supernatural faith as well as the positive divine law is the positive rule of knowledge and action. As in the case of the nominalist Occam, on this primacy of practical reason rests Kant’s ethical rationalism, his deductionism uncontrolled by the intellect and consequently by reality. For otherwise the intellect would have to perceive the ideas in things and to be able to present that which is to the will as that which strictly ought to be.
Kant’s formalism, i.e., the theory of mere conditions of knowledge and of moral autonomous freedom, is the main cause of this peculiarity of his ethics. It did not allow him to develop a doctrine of material values, but only the doctrine of conditions under which values can be “given.” The principle of freedom is too formal and hence too unfruitful to permit a material ordo, whether of oughtness or of essential being, to find acceptance, in relation either to knowledge or to volition. Since metaphysical being can thus exercise no control with regard to thinking, deductive free thought loses itself in rationalist constructions. Only too frequently, moreover, it clothes empirical, historical contents with the sheen of pure and absolutely valid deductions from reason. Indeed, this can be verified even in the case of the Neo-Kantian theories of formal and pure law, as, for example, in the writings of Stammler and Kelsen. (However paradoxical it may appear, Karl Bergbohm would actually have uncovered, in virtue of his peculiarly keen scent, abundant traces of natural-law thinking even in Kelsen.) Hence every external mode of action whereby the arbitrary freedom of the citizens is not mutually impaired would have to appear as juridical. That is to say, the joint consent and approval of the citizens would necessarily be able to render, in a positivist fashion, any action whatever a juridical one, quite apart from its material moral quality (here the well-known strong influence of Rousseau upon Kant is discernible). Thus, on the sole condition of the formal freedom of others, it would be possible for such intrinsically immoral actions as usury, theft, and adultery to become juridical, which Occam, who taught the same dualism of theoretical and practical reason, had admitted even in the case of the lex naturalis. The inherently immoral character of an action is no longer of importance for its juridical qualification.
This formalism thereupon led to abstruse deductions that altogether disregard the social value of, for instance, marriage and the family as institutions. To Kant the entire world of law appeared exactly like a variegated, intrinsically uncoordinated aggregate of subjective rights. Marriage becomes for him “the Union of two Persons of different sex for life-long reciprocal possession of their sexual faculties.”11 The use of another’s sexual organs is, in Kant’s view, a gratification for the sake of which one party gives himself to the other. But thereby a man makes himself a thing, which is contrary to the law of the humanity in his person. Only because the other person similarly acquires another as a thing does he regain himself and recover his personality. “The Acquisition of a part of the human organism being, on account of its unity, at the same time the acquisition of the whole Person, it follows that the surrender and acceptation of, or by, one sex in relation to the other, is not only permissible under the condition of Marriage, but is further only really possible under that condition.”12 The act of generation is “a process by which a Person is brought without his consent into the world, and placed in it by the responsible free will of others. This Act, therefore, attaches an obligation to the Parents to make their Children—as far as their power goes—contented with the condition thus acquired. Hence Parents cannot regard their Child as, in a manner, a Thing of their own making, for a Being endowed with Freedom cannot be so regarded. Nor, consequently, have they a Right to destroy it as if it were their own property, or even to leave it to chance, because they have brought a Being into the world who becomes in fact a Citizen of the world, and they have placed that Being in a state which they cannot be left to treat with indifference, even according to the natural conceptions of Right.”13
In Kant’s thought also the state of nature, which is contrasted not with the social but with the civil or political condition of mankind, plays the same great role that it did in the individualist conception of natural law. Kant held that the state of nature is already social, and that the norms of natural law have force in it as private law. Accordingly the whole body of law derivable from reason (the law covering marriage, the family, inheritance, contracts, property and the ways of acquiring it, as well as trial and verdict) is dealt with in this connection. The status civilis is looked upon as something superadded, not as equally original. It is the domain of public law, in which “through public laws the ‘mine’ and ‘thine’ [is] safeguarded,” hence not created. It has the important function of presenting these norms of private law, which are projected upon or into the state of nature conceived as social, as sacred to the public or positive coercive law of the state. The rights and institutions existing in the state of nature are at most to be protected by the state with its force; they are not to be substantially altered or to be abolished. For what did not previously belong to the law of nature cannot become matter of civil law.14 The circle of subjective rights, which is continually widening, and the maintenance of these rights in the status civilis form together the contents of the natural law. They are projected into the state of nature in order to protect them from encroachment on the part of the state. In this way the state itself is merely an institution resting on a free contract: it does not result intrinsically and necessarily from the essence and reason of man. At most it arises from eudaemonist and utilitarian motives, so far as the passions, which were generally viewed by rationalism after the Stoic fashion as devoid of value, menace the state of nature in its very existence and hence render coercion necessary.
The era of the individualist natural law, conditioned by the theory of a purely imaginary, unreal world of the state of nature and adopting as a starting point any propensity or attribute whatever of empirical human nature, brought to light nearly as many supreme principles of law and resultant natural-law systems as there were chairs and professors of natural and international law. Such were sociality, external peace, urge for earthly happiness, and, finally, freedom. As Warnkoenig has shown, eight or more new systems of natural law made their appearance at every Leipzig booksellers’ fair since 1780. Thus Jean Paul Richter’s ironical remark contained no exaggeration: Every fair and every war brings forth a new natural law.
The reforming zeal of the eighteenth century considered useful, right, and good its ideal of civil liberty and equality, economic freedom as a condition of social harmony, and liberation from the rigid bonds of guild law and corporations. All this was taken, together with and in addition to the traditional contents, into the natural law and transferred to the state of nature. Thus the particular systems of natural law became compendiums in which the norms of the positive law (only now rationally demonstrated), vindicated by speculative thought and before the bar of reason, appeared side by side with proposals for improvement arising from the criticism of the positive laws. Moreover, in these systems the natural-law norms handed down from the past were dealt with alongside both the ideas of political reform stemming from the spirit of the time and the subjective rights of citizens and men. With these last were combined, with more or less good fortune or skill, the personal and often abstruse desiderata of the individual teacher.
For these reasons Anselm Desing, O.S.B. (1699–1772), who as a Catholic, in contrast to the majority of natural-law teachers, was still in close contact with the Scholastic tradition, could rightly point out that the pretended natural law of his time was in no way a “dictate of reason”; that it was rather a rationalization of the positive law of the period, yes, even of the laws of the nation to which the author belonged; hence that it was not at all derived, as asserted, from reason alone, but was little more than “the civil law adorned with some spoils of philosophy and moral theology.” How are we otherwise to explain the fact that, side by side with the natural right to liberty and equality, a natural law of feudalism was taught; and that, alongside the new French constitution, the constitution of the Holy Roman Empire was shown to belong to the natural law? Or that the postal system was converted into a natural-law institution? Nature, state of nature, natural reason, natural theology, and natural ethics were the dominant ideas and viewpoints of the age. Whoever was desirous of representing something as good and worth while had now to make of it a requirement of the natural law, and to show that it is a conclusion of reason and that it existed in the state of nature.
This individualist natural law of rationalism did not, however, owe its importance in world history to its absurdities. It owed this significance rather to its ethical and politico-economic aims, which were raised to the sublime dignity of natural justice and held in altogether singular esteem by the spirit of the eighteenth century. Through its acid criticism of society, it certainly served to dissolve the traditional and rigid forms of feudal and guild law in the reforming legislation of enlightened despots like Frederick the Great of Prussia and Joseph II of Austria. This causal connection is verified in the authors of these reforms, who lived and taught wholly under the spell of this natural law. Nor did it only smash these forms to pieces in a revolutionary manner, as the Jacobins inspired by Rousseau did in France. It also preserved from ultimate extinction a goodly part of the old national legal heritage by investing much of the latter with the splendor of natural justice. For example, Thomasius rejected the free testamentary disposition of Roman law and opposed to it, as a requirement of natural law, the Germanic system of succession according to blood. Moreover, in conjunction with the Enlightenment, it again did away with the belief in demons, which since the close of the Middle Ages had been working havoc in the sphere of law (witchcraft delusion); and it thus deprived torture of all justification arising from belief in demons, from the supposed “possession” of the criminal. Finally it upheld, in Germany by means of reform, in France through revolution, human and civil rights against a personal absolutism of princes that towered above everything; in this way it once more helped the idea of the constitutional state on to victory. Yet we should not overlook that it likewise vindicated to the point of chicanery the police-state of enlightened despotism along with its tutelage of the citizens.
On the other hand, the separation of morality and law, and the assignment of law alone to the state and of morality to the individual, aided materially in the suppression of the police-state. The state, it was held, is not to concern itself with the morality of the citizens, which is an internal matter. Among the consequences of this view in the moralizing century was not only the victory of civil toleration in matters of religious belief, but also the victory of the liberal constitutional state over the totalitarian educational state, whereof Maria Theresa’s morals commissions still afforded evidence. For, supposing that the Church as a free community pre-eminently concerned with faith and morals is lacking or is not recognized, the identification of morality and law leads readily to a state which no longer respects a sphere of personal moral responsibility or a personal nature and goal which transcend the state.
We can, therefore, readily understand that the rationalist natural law should have lost ever more and more of its importance as its aims were progressively achieved in political life and in positive law. Yet it is a singular thing, and a sort of poetic vengeance for its own betrayal of tradition, that throughout the entire nineteenth century this natural law passed in the scientific world for the natural law par excellence, and that thus the battle against it was regarded as a fight against the natural law. Thus positivism, which was now beginning its triumphal march, obtained its laurels all too easily, since it was indeed able to vanquish this historical form of a philosophy of law which called itself natural law, but not the idea itself of natural law. The latter was carried along by the philosophia perennis even through the centuries flushed with passion for deduction. It sought for fresh confirmation in every historical setting of the problem until, with the exhaustion of positivism, with the resurgence of metaphysics, and with the collapse of the spirit of the nineteenth century, it came back renovated. It returned, not of course absolutely speaking, for it had always been cherished in the shadow of moral theology and the metaphysics of the philosophia perennis, yet return it did even into the realm of jurisprudence, from which positivism had attempted to banish it.
The Turning Away from Natural Law
The attack upon the idea of natural law came mainly from two quarters. It came, in the first place, from skeptics and agnostics like David Hume or from utilitarians like Jeremy Bentham (1748–1832) and their disciples. In the next place, it came from the leaders of the romantic movement, which was antirationalist and antirevolutionary and was based upon the philosophy of traditionalism as expounded by De Maistre and De Bonald.
Common to both groups, however, though for very different reasons, was a pronounced distrust of the power and abilities of human reason in individual men. This distrust resulted from a strong reaction against the overestimation of that same human reason in the era of rationalism. For both groups, law is not a system of clear rational conclusions from some axiomatic or self-evident principles. It is not a body of deductions which human reason can construct more geometrico, as Baruch Spinoza, in keeping with the predilection for the mathematical method which dominated the rationalist era, attempted to work out in his Ethics. On the contrary, law becomes the effect of habits, the product of the experienced utility of conventional behavior for individualist self-interest. Hume never tires of pointing out that reason is and ought to be the servant of the passions, and that consequently man is ruled by the passions and not, as the rationalist must contend, by reason. Similarly the romantic movement (in legal philosophy, the historical school of jurisprudence) would insist that law is merely the creation of the Volksgeist or spirit of the people which works in an irrational manner and reveals itself in the establishment of legal conventions and customary law. Law itself is constituted by such time-honored customary laws, which emerge from the mysterious soul of the nation that grows like an organism and is not deliberately fashioned. It is not the legislator of rationalism, deliberating in the rational clarity of consciousness, who makes the law; and it is not the will of the state, informed by abstract logical reasoning and vesting the natural law with the cloak of positive law, that makes the law. The law is the silent, almost subconscious, historical product of a particular Volksgeist, of the spirit of a particular people. The law is not made; it grows.
Both ways of thinking result in the rejection of the theory of natural law. Yet there exists between them a significant difference. The skeptics, agnostics, and utilitarians sought definitely and completely to undermine and destroy the very idea of natural law. The historical school of law, on the other hand, launched its attack rather against the antihistorical, abstract thinking of the age of rationalism. It leveled its guns against that passion for constructing systems out of the whole cloth of abstract reasoning which was so typical of the natural-law theorizing of the seventeenth and eighteenth centuries and was at the same time so destructive, as appears in the excesses of the French Revolution, which appealed to the idea of natural law in justification even of its most wanton injustices. This school of law was antirevolutionary and antirationalist, but it was not, like the agnostic school of thought, antimetaphysical.
It has been pointed out that the forces which would destroy the hold exercised over men’s minds by the idea of natural law were already germinally contained in John Locke’s empiricism. Locke began with a certain distrust in the power of human reason that was only slightly neutralized by his philosophically rather inconsequential confidence in practical common sense. The point has also been made that Cartesian rationalism, with its conception of the human intellect as practically angelic, contained within itself a fall of the angels by leading to relativist sensualism. In the philosophy of David Hume (1711–76) these forces became mature. “Reason is, and ought only to be the slave of the passions, and can never pretend to any other office than to serve and obey them.”1 Reason fails us, but only in order that nature herself (reason and nature are now opposed; no longer is reason the dominating element of human nature) may step into the breach.2 What, then, is this “nature”? It is the passions, the propensities, and an assorted bundle of perceptions.
Hume’s dissolving criticism leaves no method for determining what is intrinsically good or bad in these passions and in the acts that proceed from them. Whatever may be the moral principles that guide our actions, they are not founded on objective truth and on reason. Indeed, they are not principles at all. They are only names, symbols for emotions, i.e., for feelings of pleasure and pain. What the earlier philosophers called natural law is but a common name conventionally agreed upon for moral sentiments of approval or disapproval. Thus the morality of an action is determined not by its conformity with reason but simply by the sentiment of approval: “Morality is determined by sentiment.” As a consequence, Hume defines “virtue to be whatever mental action or quality gives to a spectator the pleasing sentiment of approbation; and vice the contrary.”3 The reason for such sentiments is not the intellectually apprehended conformity of the action with objective principles. Such a conformity supposes powers of intellectual cognition which Hume, in his epistemology, denies to the human mind. The single remaining explanation and ground of these sentiments is the usefulness of the action to serve human needs, as repeated experience shows. The sentiment of approval is a sign that the respective action is useful, either directly to self-interest, or indirectly, inasmuch as the action is useful for the preservation of society in its function as framework for the realization of self-interest, which ultimately is the sole thing that matters. Out of repeated individual experiences which evidence the utility of an action, arises the presumption of standards of behavior and the fixing of habits.
The moral law is far from being intrinsic and objective; even the utility of our actions is not an objective quality. It is consequently but a sum of societary conventions that are adapted to serve human needs and urges according to our experiences, which, however, may be superseded by different experiences at some future time. Thus the moral law has no basis in the intelligible rational and social nature of man; it has to do with no eternal, unchangeable verity rooted in the metaphysical order of the universe established by the Creator. Hume rejects the fundamental conception of St. Thomas that being, truth, and goodness are intrinsically linked together (ens et verum et bonum convertuntur). For Hume, being does not appear to the human intellect as the true because man’s mind has no access to the thing-in-itself, to the essences or ideas of things. Similarly, being, which confronts theoretical reason as the true, cannot appear before practical reason and the will as the good to be realized, as the objective norm of human action. Conventions cannot, of course, claim intrinsic validity. Utility or usefulness, in addition to its inherently subjective slant, is a quality which changes with socio-political circumstances and with accidental and more or less arbitrary estimates of human needs.
All that remained after this analysis was empiricist positivism. The good and the just are what is here and now deemed useful to the self-interest of individuals and to their life in common. The latter, of itself and through educational enforcement, develops a social habit of considering a common interest, which, however, is not such in reality: it is but a nominalist symbol for the sum of tangible individual interests.
This “destruction” of the idea of natural law at the hands of Hume4 was, in the Anglo-Saxon world, of less importance for the survival of the natural-law concept in jurisprudence than one might have expected. This fact must be attributed to the tenacity with which the spirit of the English common law retained the conceptions of natural law and equity which it had assimilated during the Catholic Middle Ages, thanks especially to the influence of Henry de Bracton (d. 1268) and Sir John Fortescue (d. cir. 1476). For a long time natural law remained the critical norm for common-law judges who, much like the Roman praetors acting under the influence of the philosophically minded juris-consults and their responsa, allowed the principles of equity to control the rigid formalism of the original common law. In addition, the decisions of the Christian courts or ecclesiastical courts, applying canon law which is imbued with the idea of natural law, constituted a vessel in which this idea could be handed down to later generations. The English religious revolt of the sixteenth century brought with it the grave danger that the resulting caesaropapism might pave the way for a revival on English soil of Byzantine absolutism. According to Byzantine legal theory the emperor as lex viva was above and not under the law, a conception which might be used by the king to establish his supremacy over the law. But the Christian elements of the common law continued to keep alive in the minds of the judges the traditional belief in the supremacy of natural law. Thus Sir Edward Coke upheld in Bonham’s Case (1610) the general principle that statutes are void if they do not conform to the natural law.5 Ideas such as these, inimical to arbitrary power and unlimited governmental prerogatives, found a peculiarly favorable socio-cultural environment in the New World, though here they came to receive a starkly individualist interpretation which, owing to the Zeitgeist of liberalism and to special economic and social conditions, culminated in so-called rugged individualism. It was mainly with the growth of the analytical method of John Austin (1790–1859) and with the progress of pragmatism that the dilution of the Christian legal heritage advanced to an alarming degree.
The other offensive against natural law was launched by the romantic movement and its legal offshoot, the historical school of law. The genius of jurisprudence became exhausted by the airy abstractions of the cosmopolitan natural law; it was sobered and shaken by the passionate rhetoric and the horrible, legally infamous sentences of the murderous tribunals of the French revolutionaries. Now it bowed before the vigorous life of the legal sense flourishing in the popular mind and committed itself to the strictly antirevolutionary sway of the historical process. Just as it had formerly been driven on by the arrogantly rationalist spirit of the Enlightenment, so now it was propelled by the conservative thinking of romanticism. But the historical school of law was not yet positivism, although it adopted a hostile attitude toward natural law. Karl Bergbohm (1849–1927), the diligent tracker of natural law, has made this point sufficiently clear. Yet what Bergbohm (and many others with him) overlooked is the fact that the historical school directed its attacks against the individualist natural law. The blame for this gross error is to be ascribed to the total ignorance of the great Western tradition of natural law, together with the antimetaphysical mood of the closing nineteenth century.
The historical school of law showed an affectionate regard for the past of peoples, especially for that of one’s own people. “The motley world of legal forms, like language, art, and mores, does not evolve in virtue of deliberate natural reflection or reasoned considerations of utility; it springs rather from the common conviction of the people, from the like feeling of inner necessity which excludes all thought of fortuitous and arbitrary origin” (Friedrich Carl von Savigny, 1779–1861). The state does not create the law; it should only formulate it, just as in earlier times the national judge merely “found” the law and applied it. The consciousness of law and its contents are the law. Law is the general will of those living together under law. The spirit of the people is the source of human or natural law, of legal principles. Consequently the law of each people is as different from that of other peoples as is its language. “Hence to the German people corresponds a German law” (Puchta). Within law, as in language, are found provincialisms. Customary law is thus the first form of the law which emerges from the dim workshop of the spirit of the nation. Law does not originate through action of the state. On the contrary, the state presupposes a legal consciousness, a law, even though the state is a necessary complement of the latter.
In this way the historical school acknowledged three sources of law: customary law, statute law duly promulgated, and the science of law which brings the law, so to speak, into consciousness by the path of jurisprudence. In its view, moreover, these sources flow forth in chronological sequence. First on the scene is customary law which, as the legal consciousness of the community, also represents, as it were, the higher law. With advancing civilization, as the state becomes conscious of its special mission toward the law, the state regulates the various domains of life by means of legislation. Last of all appears the science of law, which gathers up the customary law, interprets the statute law, and, in conjunction with the judiciary and the legal profession, brings customary and statute law into agreement. The historical school thus upheld a sort of hierarchy of these sources of law. Customary law, which is in force among a people prior to the legislative activity of the state, ranks highest. The state does not enact law that is new and foreign to the people; it decides what in doubtful cases is to be considered the general will so that it may itself adhere thereto. The science of law, however, brings into consciousness principles of law which are, so to say, concealed in the abundance of the concrete and intuitively known legal rules acknowledged by the citizens as well as in the laws of the state. In the order of importance this law of jurists ranks lowest, for it is all too much in danger of becoming abstract. Wherefore both the genius of jurisprudence and the genius of legislation must seek to find the law where it abides par excellence, that is, in the general legal consciousness of the people. Furthermore, the law must be “found.” It cannot be derived from unsubstantial principles by a process of abstraction and rationalist deduction, since it has but one principle: the obscure depths of the national spirit.
The historical school, therefore, acknowledged only positive law. “There is no law but positive law. What underlies the conception of a natural law are precisely those concepts and precepts of the divine order of the world, the ideas of law. But these possess neither the requisite definiteness nor the binding force of law. They are the motives for the perfecting of the commonwealth, not already valid norms. Hence there are indeed demands of reason on law, but there exists no law of reason.” Thus wrote the philosopher of the historical school, F.J. Stahl (1802–61). Consequently, he continued, “the human community whose function it is freely to give to the concept of law its definite shape, can convert the latter into its opposite and command what is unjust and unreasonable; and even in this condition of opposition to God the law retains its binding authority. The binding authority of law is nothing else than the divine order of the world, but its abode is the existing law which can come into conflict with God’s order of the universe.”
Such was the first reaction of the positivist spirit to the individualistic natural law, in particular and designedly to the idea of natural law. “For,” as Stahl insisted, “the highest principles touching the binding force of the positive law—that one must obey the public authorities; whether there is a limit to this obedience and what the limit is; whether active resistance is permissible—lie beyond positive law. Yet this pertains not to natural law but to ethics, and hence everyone according to his conscience will judge for himself before God what stand he should take on the matter.”
Structurally, however, this position is akin to the speculation characteristic of the law of reason. What we have here is, on the one hand, the higher law of custom which, though not set up by the state as a higher norm, rules prior to the state and over it; and on the other hand, statute and jurist-made law which takes its norm from customary law. Such at least is the way it ought to be. But in keeping with its conservative attitude, like the whole romantic movement antirevolutionary, the historical school, faced by the decisive question of a conflict between positive law and natural law (or ethics, as Stahl termed it), could only say: “Subjects may not, relying upon the natural law, set themselves singly or collectively in opposition to the positive law; that would be the crime of the Revolution.” Besides, customary law is related to the statute law of the state as the conservative natural law of the state of nature was related, e.g., in the thinking of Christian Wolff, to the statute law of the prince. The sole difference, though it is a decisive one, is that customary law was historically existing law, not abstract law deduced from abstract principles. The historically minded romanticism of the antirevolutionary era stood no longer in need of such a natural law, for it felt no call to make laws as did the reform-minded age of the law-of-reason enthusiasts.
But there is one more striking point. For the historical school, too, the eternal law was not a genuinely binding norm, no more than it was for Occam. Just as Occam had raised the question of whether God (by willing it) can oblige a person to hate Him, so Stahl declared that a positive law which is contrary to God’s law is none the less binding. Despite the historical metaphysics of the national spirit, law in the eyes of the historical school is will rather than reason. To state the matter more exactly, for the historical school law is a product of the vital, irrational impulse in historical development, a result of historical necessities and of the spontaneously working power of the popular mind, rather than a product of clear, cool, non-historical reason. Nevertheless, although the historical school was positivist, it did not disavow justice, but referred the latter to moral philosophy. Its object was to replace the eternal and unchanging natural law with its cosmopolitan appeal to enlightened reason by the rich and varied abundance of the positive, historical, national law. This it did in order effectively to oppose the demands, clothed in natural-law dress, of the revolutionary publicists and of the jurists who were clamoring for reform and pressing for the codification of the law. The historical school was neither able, nor did it wish, to dispute the right, in principle, of ethics to pass judgment upon existing historical law. Stahl, as has been indicated, expressly stated: “What underlies the conception of a natural law are precisely those concepts and precepts of the divine order of the world, the ideas of law.” And he assigns to the philosophy of law the knowledge of what is just and valid independently of all recognition.
It is, then, no wonder that out of the same spirit of romanticism and in spite of the struggle of the historical school, the natural law forthwith reappeared in a purified form. With the victory of empiricism, scientism, and antimetaphysical thinking, however, it was once more driven back to the confines of Catholic moral philosophy and the adherents of the philosophia perennis, but only to return at once.
Thus the idea of natural law remained alive throughout the entire nineteenth century. Certainly, open profession of the doctrine through employment of the name itself was no longer so common. But the systems of philosophical right, of conceptual or pure law, and of law in itself are indicative of the vitality of the natural-law idea. They are likewise indicative of the fact that the nineteenth century was for the most part acquainted only with the individualist natural law of Pufendorf and his successors, especially with that of German idealism and that formulated by Kant. The natural law and philosophy of law of earlier centuries, with the exception of a few stereotyped formulas which were repeated ad nauseam and in their isolation had very little meaning, were wholly unknown to nineteenth-century legal thinkers. This remarkable telescoping of tradition to the period of from 1600 on had disastrous consequences, as no less a scholar than Rudolf von Jhering complained. As is well known, the latter asserted, amid severe reproaches leveled at contemporary philosophy, that he would probably not have written his work, Der Zweck im Recht, had he been acquainted with the philosophy of the past, in particular with that of St. Thomas Aquinas. For, he went on to say, “the basic ideas I occupied myself with are to be found in that gigantic thinker in perfect clearness and in most pregnant formulation.”6
Noteworthy, however, is the fact that though this epoch, down to about the time of the victory of scientism and even earlier in the case of historical materialism, was often ashamed of the name “natural law,” it did not repudiate the thing itself, that is, a real law before and above the positive law. We observe that this idea was upheld particularly in penology. Certainly it is much more difficult to maintain that murder, manslaughter, perjury, theft, and adultery constitute breaches of the law solely because the positive law so determines than, e.g., that a written form is required for the legal validity of a promise of gift or that, since a person can make free testamentary disposition of his property (in contrast to the right of succession) only in writing, this is law because the positive law so ordains. No, the positive law prohibits such crimes and threatens their perpetrators with the heaviest penalties because the deeds are wrong in themselves: no agreement or statute could make them lawful. In like manner the idea of natural law was further applied in the case of international law. Here, too, the norms governing the international community did not consist of positive law alone, nor did actual practice suffice. In particular, the first principles of international law, e.g., the much-invoked fundamental rights of states, are rules of law, not because some congress of states has so decreed or because a usage may exist—political history proves how frequently this usage is overridden—but because here the legal conscience still strives with unyielding vigor to prevent might from making right.
The second reason for this continued existence of the natural law in the disguise of a pure, absolute law was the circumstance that the separation of ethics from law, inaugurated by Thomasius and Kant, could not be carried through. The great function of the idea of natural law, to preserve morality in the law, continued to be performed even during this period. That the importance of the natural-law idea was outwardly not so great is readily explainable. The great codifications of the early nineteenth century had taken over the moral, yes, “natural” principles of law almost without exception and explicitly in the form of general clauses. Consequently ethics was embodied in the law.
But down to the last decades of the nineteenth century the natural law maintained itself even outside the Christian doctrine of natural law which lived on in the native soil of a great tradition. It was taught, for instance, by the Aristotelian, F. A. Trendelenburg (1802–72), in his system of a natural law grounded in ethics.
Nevertheless, throughout all the centuries the tradition of natural law held its ground in the philosophia perennis. It is true that it was treated with contempt by Pufendorf and Thomasius. But this attitude is not difficult to understand. The adherents of the traditional natural law, even in the seventeenth century, had exposed the extreme rationalism of Pufendorf and others, just as later on, in the era of revolutions, they did battle with the revolutionary dynamic of individualism. They also stood in the front line when the notion again gained ground in international life that the fact creates right.
In his Syllabus of 1864, Pius IX condemned the following propositions: “Moral laws do not require a divine sanction, nor is there any need for human laws to be conformable to the law of nature or to receive their binding force from God” (56); “Rights consist in the mere material fact, and all human duties are an empty name, and every human deed has the force of right” (59); “The commonwealth is the origin and source of all rights, and enjoys rights which are not circumscribed by any limits” (39).7 In connection with the revival of Thomistic philosophy under Leo XIII, Catholic scholars began afresh to occupy themselves with the natural law in the context of moral philosophy. As a result a large number of important and comprehensive treatises made their appearance under such titles as Institutiones iuris naturalis. Leo XIII himself, in his encyclicals on political and social matters, afforded a shining example of the strength of the natural-law idea, which precisely from that time on was exposed within the sphere of jurisprudence to the fiercest attacks at the hands of positivism.
The doctrine of natural law also proved to be extraordinarily valuable for constructing Christian social theory as well as for establishing Christian social policy. The social encyclicals of Leo XIII (Rerum Novarum, 1891) and Pius XI (Quadragesimo Anno, 1931) are themselves weighty evidence of this value. At the same time, these very encyclicals and the treatment of the social question undertaken in numerous and sometimes authoritative writings, together with the critical analysis of that fossil of the individualist natural law, individualist liberalism with its purely economic basis, constitute a strong proof of the vitality of this Christian doctrine of natural law. Other by-products of the same movement were the development of the so-called natural-law doctrine of the state and the grounding of sociology in social metaphysics, which received systematic treatment and a solid foundation in the natural-law doctrine. Further telling evidence of all this is found in the lifework of Heinrich Pesch, S.J. (1854–1926),8 among others, as well as in the important part played by the natural-law doctrine in the theoretical and practical policies and reforms sponsored by the Catholic social movement and developed in its literature.
The Victory of Positivism
The attack of positivism proceeded from several quarters along an ever-widening and enveloping front. It came first from scientific empiricism, which was generally lacking in a sense of the normative. The conflict of ethics with sociology opened, so to speak, a second front. The third point of assault was the spread of philosophical and historical materialism. For, in the “overthrow of the titans” of German philosophy, even the power of German idealism after Schelling and Hegel had been broken, notwithstanding the efforts of the post-Kantians (Feuerbach, Marx).
Empiricism, which dismisses metaphysics as epistemologically impossible (agnosticism), believed that, since it had won such great triumphs in the natural sciences, it is also the right method to follow in the so-called cultural sciences.1 It penetrated into legal philosophy in proportion as the historical school, which in this matter had acted somewhat as a forerunner, came more and more to adopt what amounted to Kant’s view of the connection of law with morality. According to K. Binding, for example, the sole way to true knowledge of the law is exact analysis of actually existing law, present and past. The philosophy of law should therefore not only rest upon mere external experience, but it should be restricted thereto. Every project of passing beyond it is rejected as metaphysics.
Philosophy of law, however, means understanding the ultimate and highest principles of law: it means understanding the essence or nature of law, the source of its obligatory character, the essential and intrinsic difference between right and wrong, justice and injustice. ‡Experience teaches us nothing about all this. It merely tells us that such and such laws were enacted by the constitutional organs, that this or that rule was once recognized as law. But certainly all true understanding of law calls for something more. It demands to know just why in final analysis this law was right, and why this law could become binding in conscience. It is thus no wonder that empiricism led not only to relativism, but to skepticism as well. No right exists as an eternal idea. There are merely positive rights which are only to be known, not to be recognized. The ignoramus et ignorabimus (“We do not know and we shall never know”) of the natural scientists invades legal philosophy. The will of the state, the formal general will of the citizens, is the source and criterion of law. Sociology thereupon explains by the mechanism of environment, by the struggle of interests, the further question of why this particular norm is chosen by the will. Lastly, historical materialism reduces law to the level of a mere reflex of the modes of production and the class struggles, or to a line of demarcation between classes.2
To be fair, therefore, we must distinguish two forms of positivism: first, positivism as a consequence of an empiricist narrowing of reality, as a method; secondly, positivism as a philosophy of life, as a conception of the meaning of the universe and of man’s place in it, as a Weltanschauung. The crudest expression of this second form of positivism has been materialism, whether in its metaphysical (Feuerbach, Buechner, Haeckel) or historico-economic dress (Marx). Moreover, the second form of positivism has played by far the more important role.
Positivism as a method was already present in the historical school of law. It developed with the victorious advance of scientism, of natural-science modes of thought.3 This approach to reality became the standard methodological pattern for all scientific thinking, as was once the case of deductive, mathematical rationalism which insisted on conceiving and handling ethics and law more geometrico. The essential feature of this view of reality is the prominence assigned to the empirical knowledge of individual things, and the restricting of the mental horizon to the empirical and the individual. Whatever else there may still be is ethics and not law, for it is not a law that is immediately experienced. This attitude held relatively little danger so long as moral philosophy itself did not become positivist. But when this occurred, there resulted from methodological positivism, which relegated the natural law to the background of ethics, either a world view that was frankly materialist or a self-denying skepticism which, with an almost ascetical self-restraint, merely gathered, compared, and verified. Or positivism simply referred to the newly emergent science of sociology what had hitherto been assigned to ethics; it tried thereby to rid itself of responsibility for answering the fateful question of the foundation of law.
The jurisprudence of materialism must boil down to mere positivism. Materialism regards man as nothing more than a highly evolved animal; the soul is a mere concept, required by the law of parsimony, for the manifold functions of the brain: it is not an immaterial, immortal substance. In place of a personal God, materialism is a doctrine of impersonal eternal force or of perpetually recurrent changes of matter in accordance with the blind necessity of the laws of nature. There thus exists no free will, and hence no morality in the Platonic and Aristotelian sense, or in that of the Roman jurists, or in that of the entire Christian tradition. Right as idea and the order of justice are things, concepts, which have as little relation to reality as have God, immortality, and free will. Positive law alone exists, i.e., coercive law, for only what is actually enforced is law; and it is merely a creation of the state. Moreover, the state itself is not recognized as a moral collective person, as a moral phenomenon. It is rather a necessary product of the evolution of social forces or, as historical materialism declares, of the conditions of production. It is a natural product in the proper sense of the term. In this way it is, what it is in fact, merely a thing of the class that actually has the upper hand, the ruling class.
The positive law, on the other hand, is “the boundary, fixed for the time being by the social groups struggling for power and influence in the state, of their authority and their influence” (Gumplowicz). This boundary is continually shifting; a common body of ethical and legal ideas is wanting. Here the law of the stronger holds sway. Callicles had spoken of this long before, and he as well as Spinoza had identified it with the natural law because they regarded nature as the antithesis of mind. Consequently there is no eternal justice, nor is there an unalterable moral law. The state is the creator of morality and law, but the state in turn is merely a product of the struggle of social classes and servant of the class that rules at any given time. Hence “the political order is the moral order for the time being, and the self-interest of the state [which is itself a product of naked power] is an element of morality. … All the highest goods that man possesses—freedom, property, family, personal rights—he owes to the state” (Gumplowicz). Law is thus not a genuine norm. It does not tell what ought to be, but is merely an indication of how far the power, the material and psychological power, of the ruling class extends. The law indicates what the sociological situation is. This is the extreme form of materialist jurisprudence. In this view, the law is neither reason nor will: it is but the line of demarcation of the relations of social power. Therefore real force, whether physical or psychical, is of necessity the essential note of law. Law is merely what is actually enforced, not what is enforceable. Jurisprudence is an inept expression, handed down from a metaphysico-theological age, for the materialist sociology of a purely experimental science that tells how the power pattern of the groups within a society stands at the moment in the struggle for the machinery of political control.
‡In contrast with this crassly materialist positivism stands a moderate form of positivism. The latter simply acknowledges the positive law as legally binding, and believes it possible to forgo a philosophy of law, i.e., to avoid the question of the basis of the binding character of law. Law is the will of the state that is expressly declared to be such, is enacted in conformity with constitutional provisions, and is then duly promulgated. Any further criterion, as, e.g., the inherent justice or the moral lawfulness of the action commanded by the positive law, is rejected as irrelevant for the sphere of law. The legal sphere is identified with the creation of law by the state, the carrying out of the law by the administration and the citizens, and the applying of the law by the judges. This is the position taken by the so-called theory of will, which has gained numerous adherents in political science and international law. It has found its strongest expression in the idea of the absolute sovereignty or the juristic personality of the state. Such sovereignty is even greater than that of the absolute monarch of the seventeenth and eighteenth centuries, who considered himself bound by the natural and divine law. Indeed, upon closer examination, the doctrine of sovereignty transfers states, after the manner of Hobbes, into a pure state of nature with its single rule of self-preservation. Thus international law is dependent at every moment upon its actual acceptance or rejection by the states, just as parliamentary majorities in states like England may in theory pass any measure whatever. Law is consequently no true norm or something pertaining to reason, but mere actual will in the psychological sense. It does not depend upon the essential being of things or upon the nature of the case, which L. von Baer, following here the Anglo-Saxon judicial tradition, designated as the basis of law.
Such views can emanate from a tired agnosticism that admits no metaphysical foundation of law. They can also spring from a strong feeling against the rationalist deductions of the natural-law doctrine which prevailed in recent centuries. Often, too, they are the result of a hostility, stemming from a conservative outlook, toward the revolutionary components of the newer natural law. These components hold danger for the state, whose inspirational value and sublime dignity are held to need no further justification. Moreover, the reason for such views often lies in the typical attitude of the modern scientific mind: satisfaction with the mere ascertainment of what actually exists, industrious search for facts, idolatrous worship of the factual. On the other hand, many students of law are much concerned about the great blessing of legal certainty. These hold that even a poor law and its application are more conducive to the general welfare than the riddling of the positive law by appeals to natural law or moral principles. This contention is based on the importance of the secure expectation of the members of the community that they may count on a definite and, if need be, enforced mode of conduct on the part of the rest. They clinch this contention by pointing out that no uniformity of views and convictions concerning this higher law prevails either among the members of the community or on the bench or among jurists.
With the exception of the group of agnostics, these jurists in no way deny the value of justice or the validity of the ethical norm. What the older writers termed natural law they regard as an ethical norm. But such norms, so far as these are not contained in the positive law, they exclude from “law.” In their eyes, law and justice, law and right, are not identical. The lawmaker, of course, should enact no unjust laws. Yet if he enacts a law of this kind, it is law in the true sense. One may not look upon it as non-binding from the viewpoint of a natural law, but only from the viewpoint of ethics. This matter, however, everyone must settle for himself with his own conscience. Legal dualism, the doctrine of a natural law functioning as real law concomitant with and superior to the positive law, is flatly repudiated.
The ultimate basis of this moderate positivism was and is the paralyzing realization of the unsettled condition of philosophy in the nineteenth and early twentieth centuries. This was and is quite apparent even in moral philosophy, which itself was not long in becoming positivist. For so must we designate an ethics which holds with Friedrich Paulsen, for example, that morals or mores “are, like instincts, … purposive modes of behavior for solving the various problems of life,”4 or in the form of pragmatism identifies the good with what is useful and successful, and evil with what is detrimental and unsuccessful (biologism). This school of thought has been unable to find a distinction between a material, unalterable ethics and such positive, interested, historical moral codes as those of the nobility, the bourgeoisie, and the peasants. Thus, in the face of ethical relativism and the rejection of all metaphysics, it could see no other possibility than a self-denying positivism in law.5
The great speculative outburst of German idealism had given way to a purely formal criticism of knowledge, to which the contents of thought were a matter of indifference or which was even frankly skeptical about the possibility of attaining scientific knowledge of the content of ideas. Stahl’s work on the philosophy of law, which was representative of the thinking of the historical school of law, appeared in a final (fifth) edition in 1878, that of H. Ahrens, in a second (last) edition in 1860. Roeder’s work on the natural law appeared in a second (last) edition in the same year, 1860, and the already mentioned treatise of the Aristotelian Trendelenburg on the natural law based on ethics appeared in a final edition in 1866. It is likewise significant that, toward the close of the century, the compiling of the first volume, dealing with legal philosophy, in Holzendorf’s well-known Encyclopedia of Law was entrusted to A. Merkel, the first thoroughgoing positivist. The philosophy of law, the theoretical doctrine of the natural law, now became a general science of law, a nonmetaphysical science founded on generalization and comparison, in full agreement with the evolution in philosophy.
Positivism, of course, could be no more permanently satisfying than could the historical school of law with its one-sided preference for customary law and the purely historical element in a science which has to do with oughtness, with norms. This external mark of the formal will of the lawmaker can by no means answer the perpetually arising question about the intrinsic difference between right and wrong. “Legal statutes must be measured by some standard or other to prove that they are justified”; moreover, “the doubt whether the existing law is in conformity with reason cannot be simply pushed aside” (R. Stammler). The existing law must also be one that ought to exist. The much-acclaimed consciousness of right is not a creator of law but an intimation that a legal fact is perceived and acknowledged as one that also ought to be.
It is a continually recurring experience that, even when we are wholly disinterested in a matter, we keep trying to distinguish laws as good and bad according to their purpose, but as just and unjust laws in accordance with an intrinsic criterion. Yet that is possible only if this intrinsic criterion is the very basis for the qualification of right and wrong. Hence pure positivism has at no time been carried through in actual practice, even in the countries that make the judges wholly dependent on the formal law. It is simply repugnant to the notion of a true judge to be merely a subsuming automaton. Even the positive law has again and again had recourse to morality, to natural-law norms. This it does since the presupposition of positivism, that is, the lack of gaps in the statute law, is not verified. Moreover, not only do legal codes refer to the natural principles of law (e.g., Austrian General Civil Code, Code of Canon Law), but even the law itself refers to good faith and to good morals. In these references there is no thought at all of that which is merely proper, of that which passes at a given period for respectable or conforms to the mores of a certain class of society. Frequently in such cases it is far more a question of the conclusions and further inferences from the natural law as well as of applying them. Nor does it do any good to explain, in a spirit of unshakable loyalty to positivism, that the lawmaker has precisely willed all this. For such an explanation presupposes not the actual lawmaker but an ideal one, i.e., a lawmaker who wills what is just.
“The individual experience of law is, when clearly grasped, dependent upon the universally valid concept of law, not vice versa. The concept of law cannot be derived from particular legal experiences (through induction or comparison), since these really become possible only through the former” (R. Stammler). Law exists prior to jurists and legal philosophers. They have not created law, but, inversely, law is the precondition of a legal profession and philosophy of law.
We have recorded the victory of positivism. But this must not be taken to mean that positivism won a definitive and total victory on all intellectual, moral, and political fronts. The victory, such as it was, was the outcome of the eventual undermining of metaphysics and the progressive dilution of the Christian heritage at the hands of both Kantian criticism and empiricism. The immediate result of these trends of modern thought was an agnostic and skeptical relativism, whose mock heroism showed itself in an almost ascetic, disillusioned search for “facts” and whose contempt for the theological and metaphysical era was pretentious and likewise ridiculous. Wherever these presuppositions of positivism did not prevail, the idea of natural law continued to live its now hidden life. It is true that most university professors and most practical jurists, to say nothing of the popularizers of shifting scientific fashions, spoke of natural law as a dead letter. Yet the idea of natural law once more found refuge in the philosophia perennis which, as we have repeatedly pointed out, had been its home whenever it was exiled from the secular universities and law schools. And the idea, divested of its academic dress, went on living also in common sense, in the minds of ordinary men.6 Bergbohm, the Quixotic assailant of natural law, was forced to admit that all men are born natural-law jurists. How right he was! The spirit of skeptical agnosticism, which denies to the human mind access to transcendental truth and objective values and, doubting the inner logic of the universe, constructs subjective systems of thought, is more an attitude for the academic ivory tower or for the private study of one who enjoys economic security.
In real life this attitude is untenable. When he acts, and does not merely turn things over in his mind, even the skeptic acts as if such a thing as natural law or objective justice existed, as the common sense of ordinary men and women has always implicitly held. And the reason is obvious. If anyone were to attempt to realize a strict and consistent positivism in the everyday life of society, his sole possible attitude would be an unbearable cynicism. When he becomes interested in problems of economic, social, or political reform, the avowed positivist frequently turns, in practice and as it were unconsciously, to the idea of natural law and to standards of unchanging justice. The “scientific mind” may skeptically deny the existence of the natural law, but the heart, in which, as St. Paul says,7 the natural law is recorded or inscribed, affirms it. It is easy to profess and proclaim positivism in a culture that is secure and is saturated with materialism. Positivism is the typical by-product of a solidly established, economically secure, and politically unendangered ruling class (beati possidentes). Yet man with his unquenchable thirst for justice cannot long be content with such an attitude. The hunger and thirst after justice are no less pressing than the ceaseless quest for truth. The idea of the natural law may thus be compared to the seed which, buried under the snow, sprouts forth as soon as the frigid and sterile winter of positivism yields to the unfailing spring of metaphysics. For the idea of natural law is immortal.
The Reappearance of Natural Law
The genius of the legal sciences could not be detained for long in the arid waste of positivism. Bergbohm, who tracked down the natural law into all the nooks and crannies in which it was supposed to have hidden itself from positivism, found everywhere, even among self-styled positivists, natural-law thought patterns. His intention was to dislodge it definitively. The year was 1885. Had Bergbohm repeated his hunt for the natural law about 1925, forty years later, he would have been shocked at the many new camouflages of his quarry. There is manifestly something invincible and eternal about that body of spiritual and moral ideas which for thousands of years has been called natural law and is once more coming back into honor. This is true even if those who admit these ideas in fact look back with false shame at the deductive extravagances of the rationalism of the seventeenth and eighteenth centuries and suppress the name of natural law. Not many concepts have had to endure so much violence as the notion of natural law. Yet few conceptions have had so proud and so great a tradition and a past, and are destined to have so great a future.
Positivism had no sooner achieved its position of dominance than men began to turn away from its Stoiclike self-denial. This first occurred, in a rather timid fashion, in the Neo-Kantian philosophy of law, of which the doctrine of Rudolf Stammler (1856–1938) affords a specific and typical instance. Stammler distinguishes between form and content of law—in the Kantian sense, of course, not in the Aristotelian. For Stammler, “formal” means the same as “conditioning,” and he accordingly asks under what conditions positive law can be true law. Thus it is not a question of a legal content, but, as in Kant’s ethical system, a question of a purely formal and empty concept which can receive various contents. Law thus becomes a “conditioning and determining form” of social life as the matter, the content. But this form hovers as far above every merely historical content as, in Kant’s philosophy, the world of noumena soars above that of phenomena. Yet just as Kant did not attain to a material ethics determined by being, so Stammler fails to achieve a material jurisprudence. On the contrary, he arrives at a natural law with historically changing contents, for natural law is merely his concept of formal law. Such at least should be the case.
In reality, however, Stammler’s doctrine of law does attain to contents—by way of the “social ideal” of the community of “freely willing men.” By this path he arrives at universally valid legal principles which, because of their emptiness, are in part merely tautological. An instance in point is the principle that the individual should not be compelled to renounce interests to which he is fully entitled. But the whole question, of course, is to determine what makes him fully entitled to certain interests. Or “the unconditioned law for man is the good will, i.e., the direction and determination of empirical ends, which can present themselves as universally valid, abstracting from subjective selfish impulses.” However, good will has precisely little to do with the rightness of a law; and whether or not the will is good, i.e., free from subjective selfish impulses, needs precisely to be ascertained by comparison with objective, legitimate, unselfish impulses. In this way, then, Stammler ascribes to his formal law contents that are “right,” measured by the social ideal which likewise is not without a content that supplies a standard. The community of freely willing men implies, according to Stammler, rejection of slavery, polygamy, and despotism. But the rejection of adultery, perjury, theft, and intentional killing of an innocent person is equally well founded. It is no wonder that the positivists have charged that Stammler’s natural law with a changing content still retains a sort of sediment of unchangeable “old” natural law.1
Many jurists separate the juridical and social aspects. Jellinek, for instance, in his political philosophy makes a distinction between legal theory and social theory. The legal theory is constructed along positivist lines; and then in social theory the old natural law at times breaks through. It is altogether surprising how often recourse has been had to the natural law, i.e., the idea of unalterable norms, in social philosophy and sociology for the building of social institutions, after it had been banished from jurisprudence. And yet this should not be wondered at, since social philosophy has from of old been closely connected with moral philosophy, as may be seen in every table of contents of the great Institutiones iuris naturalis of Theodor Meyer, Cathrein, Costa-Rosetti, Taparelli, Schiffini, and others. It is astonishing solely for the social doctrine that really wishes to be purely empirical and yet judges the empirical world of social phenomena by an unexpressed but ever-present social ideal of a just social order as a standard. The same is true of ethics. Even in the more recent systems of ethics, as in that of Nicolai Hartmann, we find principles aplenty which contain good old natural law. The institution theory of Maurice Hauriou (d. 1929),2 the eminent French jurist, likewise contains, as even his respect for St. Thomas Aquinas would indicate, principles corresponding to the old natural law.
On the whole, in this advance of the idea of objective order as opposed to conditions and relations arising from the arbitrary will of individuals, we can and must see a sign of an intellectual revival that is open to the natural law. German legal scholars sometimes speak of the flight of certain natural-law principles (such as good faith, good morals and what we have the right to expect somebody to do or to tolerate) into the general clauses of the German Civil Code. This fact is most embarrassing for the formal jurist, particularly for a jurist who simply regards as an ideal the obligation of the judge to adhere to the formal law. But this is merely one more clear indication that alongside the positive law stands yet another law which often exactly resembles the old natural law. Indeed, it is an experience repeatedly verified that natural law makes its appearance whenever, through an altering of the circumstances, to use St. Thomas’ expression, the positive law would work material injustice if it were applied. This situation occurs when the ontological foundations of the law have undergone a substantial change or when improved understanding reveals the inadequacy of this positive law. Ever since the dogma of the absence of gaps in the positive law was overthrown, natural-law concepts have been pushing in more and more; and the necessity of a moral quality in the law is receiving recognition in continually widening circles. The French Civil Code threatened with punishment the judge who would refuse to hand down a decision on the plea that the law is silent on the matter. When the judge finds no positive rule in the code, he is to make use of the principles of natural equity in reaching a decision.
From still another angle legal positivism has proved itself utterly inadequate. Positivism has only one criterion for law: the will of the sovereign formulated in accordance with the legislative process prescribed by the constitution. This formal criterion, consisting in the observance of the method and form of legislation as provided by the technical constitutional rules, is all; any material criterion (conformity of the law with the ethical end of the state, with the objective common good, with the objective moral law) is repudiated by positivism. The latter acknowledges only formal legality; it has no place for material legitimacy. Now either the will of the legislator, formulated with legal correctness, must be taken as a mere psychological act, or the will, i.e., the law, is to be regarded as the act of rational beings which has, or must be presumed to have, a content determinable by reason. Yet even the positivists agree that, for the jurist at least, the will of the legislator is no mere psychological act. The jurist has to concern himself with the intent of the law, with the ratio legis; that is, he has to concern himself with the normative intention of the lawmaker, not with the psychological facts of formulating and declaring or enouncing the intention. As applied in juridical and administrative practice, therefore, the psychological will disappears, and rightly so, and a new idea makes its appearance, namely, the rational intention of a normative character. In this way, what matters is not the psychological will enunciated in a legal document which represents the sole fact, but the normative intent of an abstract legislator who deliberates and resolves in a rational manner. The latter is substituted by the courts and administrative agencies for the factual lawmaker.
The law thus acquires an objective mode of self-existence which is independent of the psychological acts or of all persisting acts of will. Practically speaking, the law contained in the statute books is no longer any conscious and enduring will. It is construed as a regulative norm, as the result of the deliberations and reasonable intentions of a legislator who is presumed rational as well as prone to regulate certain social relations in a reasonable manner. The jurist imputes reasonableness to the will of the lawmaker; he is little concerned with the psychological process of willing. The law as a norm frees itself from the psychological will as soon as it is inscribed in the statute books and interpreted in the courts. Very often, indeed, it even frees itself from the actual intentions of the concrete legislators and acquires an existence of its own in virtue of the end or purpose in the law. It is not the subjective intention that matters, but the objective intention of an abstract reasonable legislator, whom the jurists assume to have, as a rational being, intended a reasonable regulative norm. The formal text of the statute is construed in this sense, and not by a study of the subjective, psychological moods, intentions, and wills of the accidental members of the legislature whose action may have been very unreasonable. This liberation of the law as an objective, reasonable norm from the actual concrete psychological will of the legislator proves that law is essentially reason and not arbitrary will.
In the second place, no positivist can get around the problem of limitations of governmental authority or limitations on the will (sovereign will) of the legislator. It is a common conviction that the law limits the will of the legislator, that the latter cannot will what he pleases. In effect, limitations of this sovereign will represent a dilemma for the positivist, who contends that the duly formulated and promulgated will of the legislator makes the law. Jellinek thought to resolve this dilemma of the positivists by saying that the lawmaker limits himself (theory of auto-limitation). But this theory does not solve the juridical dilemma, even though in practice the legislator may feel himself bound by promises of auto-limitation. For as long as the auto-limitation is itself dependent on the will of the lawmaker, those who are subject to this will are at the mercy of the uncontrolled arbitrariness of the lawmaker.
It may indeed be objected that at least under a representative form of government such an auto-limitation is workable enough in practice. Since in the system of representative government the will of the legislature is the product of a rational deliberation and ample discussion of pros and cons, it may safely be considered to represent the general will. In other terms, the legislative will is identified with the will of the citizens: the lawmakers and those subject to the law are in some way identical. But this contention is superficial and untenable. In actual practice, the general will, because representative government is almost necessarily party government, is always at best a majority decision against which the minority will ever claim the protection of the law. For the formal will of the numerical majority cannot logically be asserted to be always reasonable and just, however great the presumption may be that the majority has more and better reasons for its decision than has the minority. This claim of the minority to protection by the law against the will of the majority functioning as the positive law clearly shows that there exists prior to the positive law an a priori element of a material character which qualifies the legislative will as just or unjust. It is strange but common to see many jurists who adhere to positivism bow before this a priori limitation of the will when they turn social reformers. On these occasions they do not condemn the existing law as technically inefficient, as failing to achieve its juridically and morally indifferent purpose. On the contrary, they condemn the injustice of the purpose itself, the immorality and unreasonableness of the will itself. They thus acknowledge and establish pre-existing conceptions of justice, morality, and reasonableness as limitations of the legislative will and as material criteria of the positive law, in place of mere political prudence that seeks to avoid armed resistance on the part of a strong minority which has been defeated at the polls.
The influential French jurist, Léon Duguit (1859–1928), was quite conscious of this necessity of limiting the legislative will through the law. Nevertheless he stubbornly maintained that he was a positivist, and he labored to refute the idea of natural law. But how can the legislator’s willing be limited by the law, if the latter is the creature of his will? According to the positivist school the state as legislator is the omnipotent creator of the law; but Duguit certainly did not agree with such a juridical deification of the legislator. If the state is the omnipotent creator of the law, a conflict between the law and the lawmaker is, as positivism indeed affirms, obviously out of the question. The will of the legislator may be economically unreasonable, financially disastrous, socially inefficient and futile, and morally perverse, yet juridically it is, if duly enacted, the law. The real problem, however, is that of the limitations on such legislative fiats by means of the law.
Duguit vehemently rejects all identification of law with the duly enacted will of the legislator. He protests strongly against the tendency of the majority of German jurists to regard any enactment duly emanating from the legislative organ as a legal norm before which the jurist has simply to bow and which he has to accept without subjecting it to critical evaluation.3 Duguit insists that, on the contrary, there exists a rule of law that imposes itself upon rulers and governed alike, upon the state and its subjects. He contends that this rule of law exists and is valid apart from any intervention of the state, and that it is not the creature of the state’s will. Yet he denies the seeming consequence that this rule must originate in a superior principle of the metaphysical order.4
What, then, is the nature of this rule of law? It is a social norm which has become juridical in virtue of the fact that the mass of individual consciences has come to understand that the material sanction of this norm can be socially organized.5 Thus the rule of law does not contain a moral and juridical obligation of conscience; it is a mere indication that it will be wise for the individual to observe the rule lest he incur the organized resentment of the group. Yet it is the undeniable essence of law, of the juridical and moral norm, that it involves an imperative and binds the conscience, as Duguit himself is forced to concede.6 Law by its very nature places an obligation on free rational beings, irrespective of the fear of retaliation at the hands of the group or social milieu. Yet what is it that obliges in the strict sense, and does not merely counsel on the basis of utilitarian motives or prudential considerations? What, in final analysis, legitimates the juridical norm? Duguit denies that a superior norm, a real or hypothetical basic norm, such as the natural law, which he rejects, can provide this legitimacy. However, he concedes that “the mass of individual consciences does not create the juridical norm.” The bare fact that such a norm is held or accepted by the mass of individuals does not, of course, necessarily give to this norm an imperative character which binds consciences, however much, by threat of ruthless enforcement, it may compel people to outward conformity.
At this point in his argument Duguit, after the manner of Jhering, introduces the teleological concept. The social norm is a “law of purpose” which governs the cooperation of the individuals who form the social group, limiting their actions and imposing certain acts while it leaves intact the substance of their will.7 Thus the end or object of the norm becomes the criterion by which acts are judged right or wrong: acts which are conformable to the end are right, those which are not conformable thereto are wrong. But then the same problem recurs. For the question inevitably arises: What ends are to be approved of as right, or disapproved of as wrong? It appears obvious, indeed, that not all ends actually intended by a concrete group are intrinsically right or good. To this Duguit replies that social solidarity is the universal end. Right is what strengthens social solidarity, wrong is what weakens it. But this criterion also is too formalistic. How may we distinguish a state or commonwealth from a robber band? To attain their ends both need social solidarity. As St. Augustine said, “Take away justice, and what are realms but great robber bands?”8 Duguit is fully aware of this objection. Hence he adds that, besides the solidarity experienced as necessary by the mass of individual consciences, these consciences must also have a sentiment of the justice, both commutative and distributive, of that sanction.9 Thus the rule of law is characterized by the end of social solidarity and by the justice of the sanctions of the rule. Consequently the justice of the sanction, not the justice of the end, would be the superior rule, the criterion of the rightness or wrongness of the positive law, of what the legislator wills. To this rather formalized justice, to this “rule of law” Duguit ascribed an over-all general validity for the law of all countries and for all branches of the law, private as well as public. They all obey the superior norm.10 At the same time, he asserts that the spirit with which one has to approach the study of law, of all branches of the law, is the spirit of justice. In truth, Duguit seems to have come to the vestibule of natural law. His next step should have been a discussion of the rightness and wrongness of the concrete ends as measured by the objective ends in the metaphysical order.11
The work of Duguit leads to the inevitable conclusion that either positivism is sound—a contention which Duguit ably confutes—or the time-honored doctrine of natural law must be accepted in order that the legitimacy of the positive law can be founded on a superior norm of material justice, unvarying and general. The juridical norm cannot be based on the accidental historical fact of the will of the legislator; it must rest ultimately on being. Oughtness and being must in final analysis coincide. Normative oughtness must be grounded in metaphysical being. By attacking legal positivism Duguit had, as it were in spite of himself, to open the way to the idea of natural law.
It is true that a refutation of positivism does not lead straight to the idea of natural law. Yet it opens the way thereto, inasmuch as it raises the problems of the higher law, of the legitimacy of the positive law, of the intrinsic limitations of the power and will of the legislator. A rejection of positivism means a refusal to solve these problems by simply referring to the psychological motivation in the subjects, a motivation that makes it wise and profitable to comply with the demands of authority in view of the undesirable consequences of non-conformity. As a result, the contemporary criticism of the modern concept of sovereignty must logically turn against legal positivism and thereby break down one of the greatest obstacles to the revival of the natural-law idea.
Numerous jurists have criticized the positivist concept of sovereignty. Positivism conceives sovereignty as legal and political power limited only by physical or psychological facts, not by the natural and divine law. This modern concept of sovereignty, which became particularly poisonous in combination with an essentially materialist rationalism, was not the brain-child of Jean Bodin. It stemmed rather from Hobbes, who allowed the idea of natural law, which was still held by him, to disappear in the will of the state. Bodin, on the other hand, stood for centralized state authority against feudalist pluralism and decentralization of political authority, but he never doubted that all such authority is subject to and limited by natural and divine law. Therefore the modern concept of absolute sovereignty could appear on the scene only after positivism (as a general philosophical trend) had freed sovereignty from the limitations which Christian tradition and the ideas of natural and divine law had placed upon it. These restrictions had in earlier times made Bills of Rights relatively unnecessary; the modern positivist conception of sovereignty has rendered formal and positive declarations of human rights a practical necessity.
For the past half-century this positivist concept of sovereignty has been vehemently criticized. Léon Duguit, H. Krabbe, Otto von Gierke, Hans Kelsen, and Harold J. Laski have led the attack. The sovereign authority must itself be subject to the law as a higher norm. The state, i.e., the political will-power, whether the latter is invested in an individual or in a majority group that can enforce conformity to its demands or to its will, is not the source of law; that is to say, will is not the essence of law. The irreducible source of law is, according to Krabbe, the sentiment and conviction of the members of the community as to what is law. The positive law thus becomes a mere declaratory agency which gives expression to the law residing in the people’s consciousness and sentiment of right.12
Kelsen contends that it is impossible to found a normative oughtness upon a fact, upon being. A norm must always be founded upon another, a higher norm. The notion of sovereignty wrongly implies that a fact, a psychological being, the actual will of the legislator plus his socio-psychological power of coercion, is looked upon as the source of law or of oughtness. But every norm must be based on and derived from another, a higher norm, and, since this process cannot go on ad infinitum, Kelsen postulates a formal basic norm or original norm. It seems that his thoroughgoing agnosticism prevents him from anchoring his basic norm in a fundamental being of the metaphysical order. Hence his basic norm is a mere hypothetical construct, even if it is not inappropriately called civitas maxima, which of course is again a being.13
Had his agnosticism not stood in the way, Kelsen could have attained to the idea of natural law. In this conception rational nature, viewed in the Thomistic sense as a metaphysical being, is the rule of oughtness for the concrete being, and essence is the final cause of existence. Kelsen, however, does not make this latter distinction since for him being is simply existence. Yet it is interesting and significant that Kelsen’s view of the relation between the positive law and the basic norm, however indistinct the character of the latter may be in his theory, shows a similarity of formal structure with the philosophy of natural law. But for his agnosticism this thought structure would have led straight to the conclusion that the basic norm must be the law of God, in whom being and oughtness are identical and who has revealed His law in the order of being, in the ordo rerum, from which through intuition or by discursive thinking we derive the precepts of natural law.
It is readily understandable that natural-law principles are for the most part being applied in the spheres of social life where the law itself is in the process of formation (e.g., social legislation, labor laws). The new legislation may set down, for instance, the principle of the social responsibility of the entrepreneur for his workers or the principle of mutual fidelity governing those engaged in a common business enterprise. These principles were overlooked in an age which out of an excessive concern for individual freedom would not allow ethical duties to be made strict legal obligations. Yet precisely because it is law in a formative stage, the new legislation has left undetermined the specific facts and conditions to which and in which these principles have to be applied. In such cases the legal determination and adjudication of facts and conditions have been made on the basis of natural-law concepts, by means of judicial decisions and with the help of such formulas as “from the nature of the case” and “in virtue of natural equity.” Compare, e.g., what the papal social encyclicals, following in the footsteps of tradition, call natural law and what the courts designate from the nature of the matter as mutual legal responsibilities, duties, and rights in the field of labor relations. It will be found that the decisions of the courts and the demands of the encyclicals not only have much in common but are practically identical in content.
Furthermore, the ideas of the autonomy of nation and nationality in relation to the state have furnished a powerful inducement to criticize positivism. These ideas were already alive in the period before World War I, but they have since attained great force. From the standpoint of the right of a nationality to an autonomous life, it proved impossible to uphold the principle that law is what the state wills; and this is true in a state composed of a single nationality as well as in one that comprises several nationalities. The special value of the nationality had of necessity to become its special right which exists prior to the state and constitutes the natural-law limit of the state’s centralized power. The “spirit of the nation” was at one time conjured up to do battle with the natural law. But now the same national spirit, with its natural-law claim to respect for its special value and therewith for its prerogatives, is rising up against the modern centralized administrative state with its continually expanding control of all domains of life. Here too, then, being has become the source of an ought. Liberal and nationalist thought maintained the identity of state and nation (viewed as a society of individuals). But this identity is being exploded by an appeal to the difference of values and thereby of the natural right of the nationality. The omnipotent state of positivism is turning into the instrumental order of the autonomous nation or people, whose members are not citizens or individuals but rather families, kindred and national groups with their culture growing out of blood, native province, and intellectual life.
International law is likewise law in process of formation. It is in this field that the old natural law is most noticeably returning to life. International law cannot be based solely on the mere self-obligation of sovereign states. A positivist foundation of international law is impossible because an international lawmaker is wanting. Consistent positivists logically deny altogether the legal character of international law. On the other hand, Franz von Liszt (1851–1919) asserts: “The international legal community rests upon the concept of the co-existence of different states with reciprocally delimited spheres of sovereignty, with a mutually recognized sphere of power. From this fundamental concept [more properly, from this essential being of the state exemplified in sundry states] follows immediately a whole series of legal norms, by which rights and duties of states are reciprocally determined, that need no special recognition through agreements to possess binding force” (whose source is therefore not the will of the states that form the union, but rather reason which derives these norms from the nature of the international legal community). “… The rights which result from this fundamental concept are due forthwith to each and every state as a member of the international legal community. … So far as these ‘basic rights’ form the object of special agreements between two or more states, these have either exclusively declaratory character or it is a question of carrying out in an individual case the principle which is self-evident.”14 Statements such as these could stand word for word in a natural-law treatise of the Late Scholastics, Vittoria, Suarez, or Bannez.
The protection of national minorities should also be mentioned in this connection. Since this protection ought to be the concern of international law, and not a mere matter of municipal law solely for reasons of internal policy within states which have minorities, this right to protection has come as a matter of course to be founded upon the natural-law prerogatives of national minorities. That is, it has come to be based on rights which already had juridical existence prior not only to the purely declaratory positive constitutional principles of states with minorities but also to international legislation touching the protection of minorities. Writers of repute, like Wolzendorf, thus find it quite natural to speak openly of the natural law governing national minorities. If a foundation in the natural law is indispensable wherever law is in process of formation, this is certainly true today in the case of international law.
But all this does not yet, and without further ado, mean natural law. But it surely signifies one thing: There are still other sources of law besides the positive will of the legislator. The will of the state is not the sole source of law. Of equal importance as a source of law, and prior to it, is the “nature of the case,” which is synonymous with what the older writers used to call the ordo rerum, the essential order of being. And, through the breaches thus effected in positivism, jurisprudence is subject to continual invasion on the part of ideas whose relationship with the old natural law grows steadily more apparent. Frequently, to be sure, because of the discredit into which the individualist natural law brought it, the old natural law goes under such designations as “sentiment of right,” “a priori foundations of law,” “consistent cultural norms.”
In 1925, Niemeyer published in his review, Niemeyers Zeitschrift fuer Internationales Recht, the results of a questionnaire submitted to a representative group of professors of international law and jurists. These had been asked whether Grotius’ theory of natural law (whose close connection with tradition has been pointed out) has validity today for the interpretation and completion of the positive international law, which rests upon the legal will and consent of states, so that international and national courts as well as arbitration tribunals ought to follow the principles of this theory. Of the forty-one best-known teachers of international law and jurists who replied to the query, fourteen answered with a flat “yes” and only eleven professed positivists gave a negative answer; the remaining sixteen adopted, it is true, a neutral position with respect to the natural law, but, on the other hand, they did not declare in favor of positivism. Of the last group one, for instance, rejected Wolff’s conception of natural law, but he demanded that the judge effect just settlement of matters in dispute; another declared that positivism is impossible, that it has now passed its peak, and that international law may not be torn from its ethical roots; a third affirmed that Christian morality, as the native soil of the natural law, must have force even in international law.15
Many signs, therefore, point unmistakably to a renascence of natural law. Such renascence, moreover, concerns the metaphysical natural law, the ius naturale perenne, not the individualist natural law. It has coincided with a return to a doctrine of material values in ethics, and with a return to metaphysics in philosophy. This recent revival of the natural law is a fresh proof of its perpetual recurrence.
Despite appearances, the rise and spread of contemporary totalitarianism do not invalidate the contention that a distinct revival of natural law is occurring today. Modern totalitarianism is an end product; it is not the opening period of a new era. It is indeed the final outcome of positivism as a general philosophy, as an intellectual atmosphere, as a scientific method raised to the level of the absolute and divine. The position that law is will has come to mean that the human will is freed from all universal ideas, from any objective moral order beyond class interests, beyond nationalist or racial programs, beyond economic considerations, beyond unlimited evolutionary progress. But modern totalitarianism has provided the reductio ad absurdum of the axiom, Voluntas facit legem; indeed, it has revitalized in its victims and adversaries the idea of natural law. For resistance to totalitarianism, in which the end results of positivism appear as ethical and intellectual nihilism, had to look for support beyond any mere national tradition or status quo ante and base itself on something superior to history, race, class, scientific method, and the like.
In the first place, the nationalist form of totalitarianism arose and flourished most in the two countries where juridical and moral positivism had obtained a dominant position in the universities, in the legal profession, and in the official philosophies of law which conditioned or determined the outlook and practice of courts and government. For in Italy and Germany, more than anywhere else, positivism had filled the void created by the dissolution of the idealistic philosophies of the nineteenth century. In the eyes of this juridical positivism the mythical will of the state, formally established in accordance with constitutional norms, was the sole, exclusive, and sufficient source and foundation of law. When, therefore, the totalitarian revolutions had succeeded by formally legal methods, whence could a positivist, whether judge or jurist, derive a critical norm that would enable him to pass judgment on the legitimacy of the legally correct totalitarian revolution? Or how could a positivist determine the intrinsic injustice of a formally legal act of the now totalitarian government? An appeal to former legal traditions, to juridical ideas that formerly were commonly accepted, could be of no avail since, according to positivism, these possessed validity only because they had been the then will of the state. Any criticism of, or resistance to, totalitarianism had consequently to find a deeper juridical basis of criticism or resistance than the mere actual will of the state formulated with legal correctness and enforced with an irresistible power. Is it far-fetched to contend that the predominance of positivism among judges, high government officials, and teachers of jurisprudence robbed them of any juridical support against the will of the now totalitarian state?
It is worth observing in this connection that the resistance which Catholicism has offered to totalitarianism and its pseudoreligious political creeds is not based exclusively on dogmatic theology but above all on natural law. Nathaniel Micklem has rightly pointed out16 that the Confessional (Protestant) Church in Germany, under the influence of Barthian theology, which rejects a natural theology and with it the idea of natural law, has had a less advantageous basis for its resistance to Hitlerism, whereas the Catholics have had the natural-law doctrine to lean on in addition to their religious principles.
It is further deserving of mention that totalitarian propaganda, aware of the recent revival of natural-law thinking, has abused the term “natural law.” Such abuse of revered terms is indeed typical of totalitarianism: witness today the sorry abuse of the term “democracy” at the hands of totalitarian leftist regimes. As if out of reverence for them, terms like “natural law” and “natural rights of the nation” have been frequently used in propaganda and even in serious books.17 But it is quite evident that the term “natural” has here undergone an even more wanton disfigurement than it suffered at the hands of Hobbes, Hume, or the utilitarians. “Nature” no longer refers to the rational nature of each individual man or to man’s endowments of intellect and free will, on which rest the dignity, liberty, and initiative of the individual person;18 nor does it refer to the universal order of being and oughtness, to the transcendent reality of reason. On the contrary, nature is transformed into an altogether materialistic concept. It is viewed as the blood, the hereditary biological mass of animal nature, deprived of its personalist and spiritual values. Thus metamorphosed, the law of nature has but one principle: Right is what profits the German folk-community—just as a deformed proletarian natural law would yield the single principle: Right is what profits the proletariat. This vicious alteration of the meaning of the terms “nature” and “natural” makes it possible for Huber on one page to abuse the venerable terms in the interest of the blood-and-race ideology and on another to maintain that “there are no personal liberties of the individual which fall outside the realm of the state and which must be respected by the state. … The constitution of the Reich is not based upon a system of inborn and inalienable rights of the individual.”19
‡As a consequence the internal and external opponents of totalitarianism have had to base their defense and their criticism on the perennial idea of natural law as it has been preserved in the philosophia perennis, in common sense, and in the juridical tradition of Western civilization. Moreover, they have had to take this stand in spite of and against the prevailing evolutionary materialism, philosophical positivism, or the refined historical materialism of the Neo-Marxist and pragmatist schools of thought. Thus the natural-law doctrine became willy-nilly the ideological basis of the struggle against totalitarianism. Totalitarian regimes are in their very nature the ultimate consequences of the positivist denial of natural law, i.e., of a transcendental and universal moral and juridical order valid for all nations, races, classes, and individuals, of an a priori for all legal institutions and for any will of the state. The growth of totalitarian regimes, far from checking or reversing the revival of natural law, has on the contrary contributed mightily to this revival in ever wider circles. For totalitarianism has opened the eyes of more and more thinking people to the ultimate consequences to which the denial of the natural law must lead. Such consequences were not obvious or clearly predictable so long as modern society, though infected with positivism, continued to live on, beguiled by an optimistic faith in an inevitable and automatic evolutionary progress and under the protection of a constitutional form of government which was still feeding on an inherited Christian substance. People and their leaders were therefore not yet sufficiently aware of the depths of evil and perversion to which the evolutionary product, man, supposedly determined by blood or mere economic conditions, could sink, if once the age-old moral and intellectual molds and floodgates were shattered.
In the next place, totalitarianism and the struggle against it have also brought to light the weakness of a more refined form of juridical positivism. This subtle form of juridical positivism (sometimes referred to as juristic monism or analytical jurisprudence), though it does not deny the absolute character of the moral law, maintains that legally the state can do anything, since positive law as the will of the state does not find a legal limit in the moral law. Juridically, it holds, there exists only the self-limitation of the state’s will. But this contention rests on an illicit separation of positive law from its matrix, the natural law, which is simultaneously ethical and juridical. The Kantian separation of morality and legality, which was a reaction to Hobbes’ effort to identify morality and legality, may underlie this position. Yet the consequences are the same.
The formula according to which the state can legally do anything (which recalls the description of the emperor as lex animata in Late Roman jurisprudence) appears to be equivocal. If by the phrase “can do legally” is meant that the state, i.e., the persons in authority or holding power, controlling the legislative organ and the enforcement machinery of a totalitarian regime, can declare anything law and can by physical force and psychological threat compel subjects to active obedience or at least to passive conformity, then this is merely a statement of experimentally verified fact. Totalitarianism has indeed proved how far a modern tyrannical regime can legally go in declaring lawful any act which it deems advantageous to its arbitrary aims, from the suppression of religious freedom to the shooting of guiltless hostages and the killing of innocent persons in the interest of scientific research or of purity of the racial stock. By applying all the means at the disposal of the modern state with its intricate compulsory mechanism (propaganda, terror, fear, indoctrination and control of economic life), the totalitarian state is comparatively or even practically certain of the obedience and conformity of its subjects. For the life and fortune of these would be at stake should they fail to conform. In addition, the totalitarian state will always find, among the citizens, individuals who by reason of indoctrination, perversion, or brutalization will serve as its agents and actively compel all others to conform.
But this actual fact of being able legally to do anything or of being able to declare any act lawful is not the real problem. Actually, when we use the term “can” we mean “may.” We have in mind the moral problem: How far is the state permitted to go? By “state” we here mean the persons who have at their disposal the means of compelling conformity of the citizens and active obedience of the law-enforcing agencies to their commands, duly declared legal or lawful. The problem is thus whether resistance to the state on the part of the citizens and refusal to obey on the part of the executive organs become lawful if the commands clothed with legality go beyond the line which separates licit and illicit use of legal power, of the legal “can.” It seems clear that the question cannot be solved by saying that the line is where the state is certain to find open and violent resistance and insurmountable mass disobedience. For this is a matter of mere psychological fact or experiment; it is a matter of expediency. An answer is possible only if a paramount law is acknowledged that serves as a measure and critical norm both for acts which are formally declared legal and for the lawfulness of resistance and disobedience. Furthermore, what is to be said of the execution of orders of superiors, orders which in a totalitarian state are indubitably lawful inasmuch as the will of the state is always lawful? Is the minor war criminal, who hides behind the lawful orders of the supreme war lord as head of the state, free from moral and legal responsibility for execution of a lawful act of his superior, of an act that is obviously in conflict with natural law and reason though not with the laws of his state?
To put these questions is to answer them. “Every positive law, from whatever lawgiver it may come, can be examined as to its moral implications, and consequently as to its moral authority to bind in conscience, in the light of the commandments of the natural law.”20 It is inadmissible to separate the legal “can” and the moral “may,” the formal legality of the positive law and its material morality (the agreement or disagreement of the positive law and its material morality, i.e., the agreement or disagreement of the positive law with the natural law). Totalitarianism has merely verified once more the profound wisdom of St. Augustine’s dictum: “Take away justice, and what are realms but great robber bands?”21 The natural law binds all men collectively and each one separately: the sovereign lawmaker, the executive or administrative official, the judge or juror, the citizen and subject. Duguit as well as the Roman jurists had a higher opinion of the jurist’s office and function than merely to bow before all acts of the state clothed in due legal forms.
To repeat, such theories as this can flourish only so long as their sociological and political presuppositions prevail: a consciousness of political unity in spite of a pluralism of groups; free associations in religious, economic, and cultural life; a limited sovereignty under an unquestioned constitution which includes a bill of rights, some division of powers, a procedure to protect officials against arbitrary acts of repression on the part of their superiors, and, above all, a truly independent judiciary. As soon as these institutions are suppressed de facto or de jure by totalitarian regimes, the weakness of this subtlest form of juridical positivism and the necessity of a moral basis for positive law appear with unmistakable clarity and force.
[1.]“It is owing to their wonder that men both now begin and at first began to philosophize; they wondered originally at the obvious difficulties, then advanced little by little and stated difficulties about the greater matters, e.g., about the phenomena of the moon and those of the sun and of the stars, and about the genesis of the universe. And a man who is puzzled and wonders thinks himself ignorant (whence even the lover of myth is in a sense a lover of Wisdom, for the myth is composed of wonders); therefore since they philosophized in order to escape from ignorance, evidently they were pursuing science in order to know, and not for any utilitarian end” (Metaphysica, A. 2, 982b; trans. W. D. Ross).
[2.]That is, in the third and fourth centuries of the Christian era, after all the free inhabitants of the Roman Empire had been made citizens (212), and in the Middle Ages through its incorporation in the canon law of the Church, its systematic study in the universities, and its subsequent reception in Western Europe. Cf. Roscoe Pound, “The Church in Legal History,” in Jubilee Law Lectures, 1889–1939. School of Law, The Catholic University of America (Washington, D.C., 1939), p. 25, quoting Rudolph von Jhering. Of considerable value, especially for the historical portion of the present volume, is Jerome Hall, Readings in Jurisprudence (Indianapolis: Bobbs-Merrill Co., 1938).
[3.]See, in general, Otto Karrer, Religions of Mankind, trans. by E. I. Watkin (New York: Sheed and Ward, 1936), chaps. 1 and 2.
[4.]Fragments 112–14, in Charles M. Bakewell, Source Book in Ancient Philosophy (New York: Charles Scribner’s Sons, 1907), p. 34.
[5.]Fragment 44; ibid., p. 31.
[6.]On these ideas of the Sophists, see the excellent discussion of George H. Sabine, A History of Political Theory (New York: Henry Holt and Co., 1937), pp. 25–34.
[7.]On the other hand, Socrates’ older contemporary, the dramatist Sophocles (496–406 b.c.), has the heroine of the tragedy Antigone declare that her conscience is altogether clear even though she had deliberately overstepped a law of King Creon by burying her brother against the royal orders. She defends herself by appealing to a law higher than any ordinance made by man (ll. 450–60):
The validity of this particular use of the higher-law doctrine is beside the point.
[8.]Laws, IV, 715 (Jowett’s translation).
[9.]Cf Werner Jaeger, Humanism and Theology (The Aquinas Lecture, 1943. Milwaukee: Marquette University Press, 1943), pp. 38–40, 50 f.
[10.]This phrase is used by Cicero in his speech For T. A. Milo, apropos of the right of self-defense: “This, therefore, is a law, O judges, not written, but born with us, which we have not learnt, or received by tradition, or read, but which we have taken and sucked in and imbibed from nature herself; a law which we were not taught, but to which we were made, which we were not trained in, but which is ingrained in us, namely, that if our life be in danger from plots or from open violence or from the weapons of robbers or enemies, every means of securing our safety is honourable” (Yonge’s translation). Cicero’s conclusion, it is worth observing, is too broad: not every means of self-preservation is morally allowable.
[11.]Laws, I, xvi, translated by C. W. Keyes, in the Loeb Classical Library. Cf. also ibid., I, x, xv, xvii f.
[12.]The following is another celebrated passage of Cicero on the same subject: “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment” (The Republic, III, xxii, trans. by C. W. Keyes, in the Loeb Classical Library).
[13.]Epistulae morales ad Lucilium, XCV, 33.
[14.]Ibid., XCV, 52, trans. by R. M. Gummere, in the Loeb Classical Library. The pantheistic cast of Stoic thought is here unmistakable.
[15.]Meditations, VI, 44.
[16.]Cf. R. W. Carlyle and A. J. Carlyle, A History of Mediaeval Political Theory in the West (6 vols., Edinburgh and London: William Blackwood & Sons, 1903–36), I, pp. 23 ff.
[17.]On “responding” and on its later development, the ius respondendi, see, e.g., W. W. Buckland, The Main Institutions of Roman Private Law (Cambridge: Cambridge University Press, 1931), pp. 14 f.; James Hadley, Introduction to Roman Law (reprint, New Haven: Yale University Press, 1931), pp. 61–69.
[18.]Cf. Digest, I, i, 1–4; Carlyle and Carlyle, op. cit., I, 34–44.
[19.]Digest, I, i, 10.
[20.]Anglo-Saxons will be disposed to demur. But this is not the place to attempt to weigh the claims of the English system of common law, in which the natural law has also played an important role, to equal or superior excellence. In a general way, cf. W. W. Buckland and A. D. McNair, Roman Law and Common Law. A Comparison in Outline (Cambridge: The University Press, 1936).
[21.]Philosophia perennis (a term seemingly coined by Steuchus in 1540, used by Leibnitz, and popularized by the Neo-Scholastic movement) denotes a body of basic philosophical truths that is perennial, enduring, abiding, permanent, eternal—a philosophy that “is as old and as new as philosophical speculation itself.” It is one whose “validity and truth content is not confined to any particular age or civilization but is absolute and enduring” (K. F. Reinhardt, A Realistic Philosophy [Milwaukee: Bruce Publishing Co., 1944], p. 17; cf. also pp. 18 ff.). In other words, philosophia perennis is the accumulated fund of sure philosophical truths: “the eternal store of primordial philosophical truths which remains in spite of all evolutions and changes” (Philosophia Perennis. Abhandlungen zu ihrer Vergangenheit und Gegenwart, herausgegeben von Fritz-Joachim von Rintelen [2 vols., Regensburg: Josef Habbel, 1930], I, ix); “a stock of fundamental truths which survive the change of time and prevail over and above the difference of systems” (Franz Sawicki, “Die Geschichtsphilosophie als Philosophia Perennis,” ibid., I, 513). It is in the main identified with the philosophy of Aristotle as purified, synthesized, developed, deepened, and enriched through the genius of St. Thomas Aquinas. Its leading traits are aptly summarized by Jacques Maritain: The “philosophy of Aristotle and St. Thomas is in fact what a modern philosopher has termed the natural philosophy of the human mind, for it develops and brings to perfection what is most deeply and genuinely natural in our intellect alike in its elementary apprehensions and in its native tendency towards truth.
[22.]See, in general, Etienne Gilson, The Unity of Philosophical Experience (New York: Charles Scribner’s Sons, 1937), pp. 298–320. Metaphysics is but “the knowledge gathered by a naturally transcendent reason in its search for the first principles, or first causes, of what is given in sensible experience. … As metaphysics aims at transcending all particular knowledge, no particular science is competent either to solve metaphysical problems, or to judge their metaphysical solutions” (ibid., pp. 308–10).
[1.]It is thus correct to speak of a Christian natural law, but solely in the sense in which we use the term Christian philosophy. A Christian philosophy, to adopt the balanced view of Etienne Gilson, is one “which, although keeping the two orders [of reason and the supernatural] formally distinct, nevertheless considers the Christian revelation as an indispensable auxiliary to reason” (The Spirit of Mediaeval Philosophy, trans. by A. H. C. Downes [New York: Charles Scribner’s Sons, 1936], p. 37). See also his Christianity and Philosophy, trans. by Ralph MacDonald, C.S.B. (New York-London: Sheed and Ward, 1939), p. 101. As Johannes Messner has pointed out, “when we speak of a ‘Christian’ natural law, this does not mean that the natural law knowable by us through reason alone is replaced or amplified by one derived from supernatural revelation, but that our knowledge of its existence, its essence and its content is confirmed and clarified through the guidance of reason by faith. … For the Catholic the designation ‘Christian’ natural law further includes the conviction that the Church, in virtue of its divine mission, is the unfaltering guardian and infallible expounder of the same” (Die Soziale Frage [5th ed., Innsbruck-Vienna: Verlagsanstalt Tyrolia, 1938], p. 492).
[2.]Ad pop. Ant., XII, 4 (Migne, PG, Vol. CXXXII), quoted by Stanley Bertke, The Possibility of Invincible Ignorance of the Natural Law. The Catholic University of America Studies in Sacred Theology, No. 58 (Washington, D.C.: Catholic University of America Press, 1941), p. 8, where also (pp. 5–11) the views of the other Church Fathers on the natural law are conveniently presented in summary fashion. Bertke’s study is a real contribution to the whole problem of the natural law.
[3.]Scholasticism, which follows the main lines of Aristotle’s thought, in part “advocates a natural dualism of God and creature, mind and matter, thought and thing, as against monism and pantheism; it defends a moderate realism, as against ultrarealism, nominalism, and conceptualism, in the problem of the universals; it is spiritualistic and not materialistic, experimental and not aprioristic, objectivistic and not subjectivistic; in sense-perception it is presentational and not agnostic or representational or idealistic; concerning intellectual knowledge it defends a moderate rationalism, as against sensism, positivism, and innatism; it is common-sense knowledge critically examined and philosophically vindicated” (Celestine N. Bittle, O. M. Cap., Reality and the Mind [Milwaukee: Bruce Publishing Co., 1936], p. 146).
[4.]Cf. Charles Grove Haines, The Revival of Natural Law Concepts (Cambridge: Harvard University Press, 1930), pp. 104–234; Benjamin Fletcher Wright, Jr., American Interpretations of Natural Law (Cambridge: Harvard University Press, 1931), especially pp. 292–306.
[5.]It may be observed that the common assignment of the first three of the Mosaic Commandments to the first tablet of stone, and of the last seven Commandments to the second tablet, is merely conventional. We simply do not know how the Ten Commandments were distributed on the two stone tablets, as the Bible itself gives no information on the matter. Cf. Louis Hartman, C.SS.R., “The Enumeration of the Ten Commandments,” Catholic Biblical Quarterly, VII (1945), 105, note 1.
[6.]For an excellent discussion of the all-important and universal metaphysical principle of finality, “every agent acts for an end,” see R. Garrigou-Lagrange, O.P., God: His Existence and His Nature, trans. by Bede Rose, O.S.B. (2 vols., St. Louis: B. Herder Book Co., 1934–36), I, 199–204; also K. F. Reinhardt, A Realistic Philosophy, pp. 87–89.
[7.]“In Aristotle’s vitalistic holism,” entelechy “is the substantial form or soul which unites with primary matter to constitute the unitary substance of the organic body; it is primarily an entitative principle” (Celestine N. Bittle, O.F.M. Cap., The Whole Man [Milwaukee: Bruce Publishing Co., 1945], p. 632). For a comparison of the Aristotelian notion of entelechy with that of Hans Driesch, cf. ibid., p. 473.
[8.]See, in general, Gustaf J. Gustafson, S.S., The Theory of Natural Appetency in the Philosophy of St. Thomas. The Catholic University of America Philosophical Series, Vol. LXXIV (Washington, D.C.: Catholic University of America Press, 1944), especially pp. 84–90. Among the numerous recent analyses and expositions of St. Thomas’ doctrine of the natural moral law, may be mentioned: Walter Farrell, O.P., The Natural Moral Law According to St. Thomas and Suarez (Ditchling, England: St. Dominic’s Press, 1930); A Companion to the Summa (4 vols., New York: Sheed and Ward, 1938–42), II, 365–89; Hans Meyer, The Philosophy of St. Thomas Aquinas, trans. by Frederic Eckhoff (St. Louis: B. Herder Book Co., 1944), pp. 455–73; Karl Kreilkamp, The Metaphysical Foundations of Thomistic Jurisprudence. The Catholic University of America Philosophical Studies, Vol. LIII (Washington, D.C.: Catholic University of America Press, 1939), pp. 39–73; Stanley Bertke, op. cit., pp. 1–45. For an undoubtedly well-intentioned but pathetic attempt to outline, weigh, and criticize the moral philosophy of a St. Thomas (as well as to devise a positivistic methodology which will advance ethics from the alchemy stage to the high plane of science and thus accelerate the urgently needed moral progress of mankind), see Louise Saxe Eby, The Quest for Moral Law (New York: Columbia University Press, 1944).
[9.]“Now as being is the first thing that falls under the apprehension absolutely, so good is the first thing that falls under the apprehension of the practical reason, which is directed to action (since every agent acts for an end, which has the nature of good). Consequently, the first principle in the practical reason is one founded on the nature of good, viz., that good is that which all things seek after. Hence this is the first precept of law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based upon this; so that all the things which the practical reason naturally apprehends as man’s good belong to the precepts of the natural law under the form of things to be done or avoided” (Summa theologica, Ia IIae, q.94, a.2). Wherever possible, all English quotations from St. Thomas are taken from Anton C. Pegis, Basic Writings of Saint Thomas Aquinas (2 vols., New York: Random House, 1945). “For St. Thomas truth and goodness are one; there is a science of truth which is a science of the good; there is accordingly a truth of conduct which carries with it its own stringent obligations. There is, of course, a distinction between knowledge and action but there is only one intellect which is both speculative and practical. We might then define the object of St. Thomas’ moral science as ‘what conduct ought to be in virtue of what man really is, the right ordering of life to life’s true goal.’ The viewpoint is completely realistic” (Gustaf J. Gustafson, S.S., op. cit., p. 100).
[10.]But it is man’s natural tendencies or inclinations which disclose to his reason and will in what direction the perfection of his essential nature lies and, therefore, more precisely what is to be done as good, and what is to be avoided as evil. “Since, however, good has the nature of an end, and evil, the nature of the contrary, hence it is that all those things to which man has a natural inclination are naturally apprehended by reason as being good, and consequently as objects of pursuit, and their contraries as evil, and objects of avoidance. Therefore, the order of the precepts of the natural law is according to the order of natural inclinations. For there is in man, first of all, an inclination to good in accordance with the nature which he has in common with all substances, inasmuch, namely, as every substance seeks the preservation of its own being, according to its nature; and by reason of this inclination, whatever is a means of preserving human life, and of warding off its obstacles, belongs to the natural law. Secondly, there is in man an inclination to things that pertain to him more specially, according to that nature which he has in common with other animals; and in virtue of this inclination, those things are said to belong to the natural law which nature has taught to all animals, such as sexual intercourse, the education of offspring and so forth. Thirdly, there is in man an inclination to good according to the nature of his reason, which nature is proper to him. Thus man has a natural inclination to know the truth about God, and to live in society; and in this respect, whatever pertains to this inclination belongs to the natural law: e.g., to shun ignorance, to avoid offending those among whom one has to live, and other such things regarding the above inclination” (Summa theologica, Ia IIae, q.94, a.2). “It is at this point that the theory of natural appetency enters the field of ethics. To know what man must do, one must first of all know what man is, know his nature, his needs, his possibilities and his limitations. In more technical language, this is to know his natural appetites, which, as orientations of that nature, point out his goal and the means which are at his disposal for its attainment” (Gustaf J. Gustafson, S.S., op. cit., p. 101).
[11.]The “first necessary and natural dictate of practical reason is: Do good, avoid evil. The ‘good’ here is that which is according to natural inclinations, the ‘evil’ that which is against those inclinations; for the whole purpose of man’s natural inclinations, as natural, is to indicate what nature needs for its perfection.
[12.]Viktor Cathrein, S.J., Moralphilosophie (2 vols., 4th ed., Freiburg im Breisgau: Herdersche Verlagshandlung, 1904), I, 185 f. All this, too, should enable one to appreciate the profound statement of St. Thomas: ‘We do not wrong God unless we wrong our own good” (Summa contra Gentiles, Bk. III, chap. 122).
[13.]St. Thomas, De veritate, q.23, a.6.
[14.]The problem of the correct numbering of the Ten Commandments is well handled by Louis Hartman, C.SS.R., article cited, Catholic Biblical Quarterly, VII (1945), 105–8.
[15.]Cf. Jacques Maritain, The Rights of Man and Natural Law, trans. by Doris C. Anson (New York: Charles Scribner’s Sons, 1943), pp. 62–64.
[16.]Summa theologica, Ia IIae, q.94, a.4.
[17.]Ibid., q.100, a.1.
[18.]De veritate, q.16, a.2 ad 1.
[19.]Summa theologica, Ia IIae, q.94, a.6. Cf. ibid., q.77, a.2; q.94, a.5; Maritain, loc. cit.
[20.]It is well to point out that, in developed Catholic teaching, original sin is not something positive but the privation of those supernatural (especially sanctifying grace with its allied virtues) and preternatural gifts which God had gratuitously bestowed upon the human race in the person of its head, Adam. Yet it is an habitual sin of human nature itself which consists in a privative aversion toward God as man’s supernatural end and whose voluntariness springs from the actual will of Adam in his capacity as the natural head of the human race. Cf. J. M. Hervé, Manuale theologiae dogmaticae (4 vols., 17th ed., Paris: Berche et Pagis, 1935), II, nos. 429–43. Moreover, it is the far more common teaching among Catholic theologians that the natural powers of man have not been intrinsically weakened by original sin: fallen man no more differs from man in the (hypothetical) purely natural state than one who has been despoiled of his clothing differs from him who has been going about in the nude; but it is quite commonly held also that the natural powers of fallen man have been extrinsically weakened. Such traditional formulas as vulneratus in naturalibus and natura vulnerata must seemingly be understood, consequently, of nature taken historically, not philosophically (cf. ibid., II, nos. 444–48). In short, the difficulty which man in the present order experiences in doing good “comes rather from the obstacles to virtue that man encounters than from any intrinsic diminution of his natural powers.” Francis J. Connell, C.SS.R., in The American Ecclesiastical Review, CXIII (1945), 70. See also John A. Ryan, Original Sin and Human Misery (pamphlet, New York: Paulist Press, 1942), particularly pp. 39–42, 52–55.
[21.]Hence St. Thomas is easily able to bring custom into harmony with law: “Therefore by actions also, especially if they be repeated, so as to make a custom, law can be changed and set forth; furthermore, something can be established which obtains the force of law, in so far as, by repeated external actions, the inward movement of the will and the conceptions of the reason are most revealingly declared. For when a thing is done again and again, it seems to proceed from a deliberate judgment of reason. Accordingly custom has the force of a law, abolishes law, and is the interpreter of law” (Summa theologica, Ia IIae, q.97, a.3).
[22.]Ibid., q.100, a.8. For “God cannot dispense a man so that it be lawful for him not to direct himself to God, or not to be subject to His justice, even in those matters in which men are directed to one another” (ibid., ad 2). Walter Farrell, O.P., aptly indicates the metaphysical basis of this position of St. Thomas: “These precepts do not depend on the will of God; they are not extrinsically but intrinsically valid, for the Natural Moral Law, like all law, is essentially the work of reason not of will; in this case it is the divine reason which cannot be changed” (The Natural Moral Law According to St. Thomas and Suarez, p. 120).
[23.]Ibid., ad 3. Cf. also ibid., q.94, a.5 ad 2. In other words, St. Thomas supposes that in such cases of apparent dispensation God did not act as Lawmaker, but as Lord and Master, with sovereign dominion over human life and property. But see the cautious and sobering remarks of Jacques Leclercq, Les droits et devoirs individuels, Part I, “Vie, disposition de soi” (Namur: Maison d’Édition Ad. Wesmael-Charlier, 1937), pp. 53 f., on this now common solution. Of course, whether or not the traditional exegesis of all such Old Testament episodes and passages is correct is another question. For instance, there is neither any need nor any sound reason for holding that Yahweh ordered Osee to commit fornication or adultery. Cf. A. Van Hoonacker, Les douze Petits Prophètes (Paris: J. Gabalda & Cie., 1908), pp. 13 ff.
[24.]Cf. Walter Farrell, O.P., The Natural Moral Law According to St. Thomas and Suarez, pp. 122–30.
[25.]On the positions of Scotus and Occam in this far-reaching controversy, see Anton-Hermann Chroust, “Hugo Grotius and the Scholastic Natural Law Tradition,” The New Scholasticism, XVII (1943), pp. 101–12.
[26.]The true relationship between the natural order (the realm of natural laws and of the natural moral law) and the supernatural order (the realm of divine grace) is clearly and concisely set forth by Oswald von Nell-Breuning, S.J.: “Elevation to supernature leaves human nature unchanged in principle. Therefore, human nature retains its full value as a source of knowledge for social order. All principles for the structural plan of human society are impressed upon human nature by God, and remain so; therefore, they can be recognized in and deduced from this human nature with certainty. This is also true of man exalted by grace or abased by sin. Just as grace elevates man above his mere nature as a being without taking away anything from his human nature, so sin has not changed the condition of human nature into something else. True enough, there is no longer a purely natural order since God has introduced a supernatural order and has destined man for a supernatural goal; in fact, there never existed a man in the purely natural order. (Thus the sinner can miss the supernatural goal, but he cannot nullify his destiny for this goal.) The natural order is consummated by the supernatural order in such a way that it remains fully unchanged. That is why the natural order, although we can separate it from the actually given supernatural order only by abstract thinking, is not merely a fancy, but a living reality whose misappreciation, denial, or debasement at the same time not only misappreciates, denies, and debases supernature, but actually deprives it of its foundation, thus making it untenable” (Reorganization of Social Economy. The Social Encyclical Developed and Explained, trans. by Bernard W. Dempsey, S.J. [Milwaukee: Bruce Publishing Co., 1936–37], p. 17, note).
[27.]Cf. A.-H. Chroust, article cited, The New Scholasticism, XVII (1943), 114 f.
[28.]This important problem, together with its bearing on the nature of moral obligation, is discussed in Part II.
[29.]On Suarez’ doctrine of the natural law, see the widely divergent expositions and appraisals of Heinrich Rommen, Die Staatslehre des Franz Suarez, S.J. (M.-Gladbach: Volksvereins-Verlag, 1927), pp. 43–77, and Walter Farrell, O.P., The Natural Moral Law According to St. Thomas and Suarez, pp. 48–72, 147–55. For an excellent presentation of Bellarmine’s doctrine in its historical setting, cf. Franz Xaver Arnold, Die Staatslehre des Kardinals Bellarmin (Munich: Max Hueber Verlag, 1934), pp. 13–75.
[1.]“What we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to Him” (De jure belli ac pacis libri tres, Prolegomena, II, trans. by Francis W. Kelsey and others for The Classics of International Law, edited by J. B. Scott, Oxford-London, 1925). According to A.-H. Chroust, “this famous passage from Grotius is but a rebuke of William of Occam’s and Hobbes’s voluntarism or ‘positivism’—by that we mean something valid because of its being posited or willed by someone—and an indirect proof of Grotius’s belief, quite in accordance with the Thomistic tradition, in the perseitas boni et iusti” (“Hugo Grotius and the Scholastic Natural Law Tradition,” The New Scholasticism, XVII , 126). Cf. also, ibid., notes 88 and 89.
[2.]The thesis of Chroust is that “Hugo Grotius constitutes but a direct continuation of the great Natural Law tradition which stretches from St. Augustine to Suarez, and which culminated in St. Thomas” (“Hugo Grotius and the Scholastic Natural Law Tradition,” ibid., p. 125).
[3.]Chroust is of the same opinion (ibid., pp. 129 f.).
[4.]De jure belli ac pacis libri tres, Bk. I, chap. 1. The important qualifying phrase and social is strangely missing both in Kelsey’s English translation and in the Latin edition (1646) on which it is based.
[5.]But see A.-H. Chroust, op cit., pp. 131–33.
[1.]Thomas Hobbes, Leviathan, or the Matter, Forme & Power of a Commonwealth, Ecclesiasticall and Civill, ed. by A. R. Waller (Cambridge: The University Press, 1904), Part I, chap. 13.
[2.]Hobbes argues as follows: Whereas the agreement of irrational creatures is natural, “that of men, is by Covenant only, which is Artificiall: and therefore it is no wonder if there be somwhat else required (besides Covenant) to make their Agreement constant and lasting; which is a Common Power, to keep them in awe, and to direct their actions to the Common Benefit.
[3.]Because of his clarity and pungency of style (not to mention his “scientific” materialism), George H. Sabine regards Hobbes as “probably the greatest writer on political philosophy that the English-speaking peoples have produced” (A History of Political Theory, p. 457). On Hobbes’ political philosophy, cf. especially J. Vialatoux, La cité de Hobbes. Théorie de l’état totalitaire (Paris: J. Gabalda et Compagnie, 1935).
[4.]Leviathan, Part II, chap. 29.
[5.]Ibid., Part I, chap. 13.
[6.]Cf. Jacques Maritain, Three Reformers.Luther-Descartes-Rousseau (New York: Charles Scribner’s Sons, 1929), pp. 54 ff.
[7.]Cf. A.-H. Chroust, “Hugo Grotius and the Scholastic Natural Law Tradition,” The New Scholasticism, XVII (1943), 122–25.
[8.]Immanuel Kant, The Philosophy of Law. An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right, Introduction, C, trans. by W. Hastie (Edinburgh: T. & T. Clark, 1887), p. 46. Kant further lays down (p. 45): “Every Action is right which in itself, or in the maxim on which it proceeds, is such that it can co-exist along with the Freedom of the Will of each and all in action, according to a universal Law.”
[9.]Immanuel Kant, Introduction to the Metaphysic of Morals, IV, 24, trans. by T. K. Abbott, Kant’s Critique of Practical Reason and Other Works on the Theory of Ethics (6th ed., London–New York: Longmans, Green and Co., 1927), p. 279.
[10.]Ibid., III, 19, trans. by T. R. Abbott, op. cit., p. 275.
[11.]The Philosophy of Law, Part I, no. 24 (ed. W. Hastie, p. 110).
[12.]Ibid., no. 25 (p. 111).
[13.]Ibid., no. 28 (pp. 114 f.).
[14.]Cf. ibid., nos. 41 and 44 (pp. 155–57, 163–65).
[1.]A Treatise of Human Nature, Bk. II, Part III, § 3, ed. by L. A. Selby-Bigge (Oxford: Clarendon Press, 1888), p. 415.
[2.]Cf. ibid., Bk. I, Part IV, § 1, pp. 180–87.
[3.]An Enquiry Concerning the Principles of Morals, Appendix I, i. Hume, Selections, ed. by Charles W. Hendel, Jr. (New York: Charles Scribner’s Sons, 1927), p. 241.
[4.]George H. Sabine, op. cit., pp. 598–605, gives an enthusiastic exposition of Hume’s alleged destruction of the natural law. He candidly admits, however, that Hume’s destructive criticism of natural law stands or falls with his psychology and analysis of causation. But Hume’s psychology and analysis of causation flatly constitute an affront to, and a mutilation of, the human intellect. Cf., e.g., Celestine N. Bittle, O.F.M. Cap., The Whole Man, pp. 316–21, 540 f.
[5.]In the following century Sir William Blackstone laid down explicitly that “the law of nature being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original” (Commentaries, i, p. 40, cited by A. V. Dicey, Introduction to the Study of the Law of the Constitution [9th ed., London: Macmillan and Co., 1939], p. 62).
[6.]Der Zweck im Recht (2nd. ed.), II, 162, cited in Martin Grabmann, Thomas Aquinas. His Personality and Thought, trans. by Virgil Michel, O.S.B. (New York: Longmans, Green and Co., 1928), p. 162.
[7.]The entire text of the Syllabus in English translation may be found in Raymond Corrigan, S.J., The Church and the Nineteenth Century (Milwaukee: Bruce Publishing Co., 1938), pp. 289–95.
[8.]Cf. especially Franz H. Mueller, Heinrich Pesch and His Theory of Christian Solidarism. Aquin Papers: No. 7 (St. Paul, Minnesota: College of St. Thomas, 1941).
[1.]See, in general, John Wellmuth, S.J., The Nature and Origins of Scientism. The Aquinas Lecture, 1944 (Milwaukee: Marquette University Press, 1944).
[2.]For a brief but penetrating exposition and criticism of recent American schools of jurisprudence which pass for philosophies of law—sociological jurisprudence, economic determinism, and realism with its psychological, experimental or skeptical approaches—see Francis P. LeBuffe, S.J., and James V. Hayes, Jurisprudence (3rd ed. rev., New York: Fordham University Press, 1938), pp. 70–81.
[3.]On scientism and on the proper relations between natural-science modes of thought and philosophy, see John Wellmuth, S.J., op. cit.; Jacques Maritain, The Degrees of Knowledge, trans. by Bernard Wall and Margot R. Adamson (New York: Charles Scribner’s Sons, 1938), chap. 1; Jacques Maritain, Scholasticism and Politics, trans. by Mortimer J. Adler (New York: Macmillan Co.), chap. 2.
[4.]A System of Ethics, ed. and trans. by Frank Thilly (New York: Charles Scribner’s Sons, 1899), p. 346. Italics in the original.
[5.]In regard to ethical relativism, see the remarkably forthright admissions, and no less remarkable confusions, of Friedrich Paulsen, op. cit., pp. 19–25, who reaches the following general conclusion (p. 25): “Every moral philosophy is, therefore, valid only for the sphere of civilization from which it springs, whether it is conscious of the fact or not.” Cf. Jacques Leclercq, Le fondement du droit et de la société (2nd ed., Namur: Maison d’Editions Ad. Wesmael-Charlier, 1933), pp. 25–43; Walter Farrell, O.P., A Companion to the Summa, Vol. II, chap. 21.
[6.]On the important question of the relation between philosophy and common sense, cf. Jacques Maritain, An Introduction to Philosophy, chap. 8.
[1.]For an exposition and criticism of Stammler’s Neo-Kantian philosophy of law, cf. Erich Kaufmann, Kritik der neukantischen Rechtsphilosophie (Tuebingen: J. C. B. Mohr, 1921), pp. 11–20.
[2.]Cf. Jacques Leclercq, Le fondement du droit et de la société, pp. 276–78.
[3.]Traité de droit constitutionnel (2nd ed., 5 vols., Paris: E. de Boccard, 1920–25), I (3rd ed., 1927), 174 f.
[4.]Cf. ibid., I, 97.
[5.]Cf. ibid., I, 81, 93. Notice that Duguit says that the material sanction can be, not ought to be, organized.
[6.]Cf. ibid., II, 169 f.
[7.]Cf. ibid., I, 80 f.
[8.]De civitate Dei, Bk. IV, chap. 4. Cf. C. H. McIlwain, The Growth of Political Thought in the West from the Greeks to the End of the Middle Ages (New York: Macmillan Co., 1932), pp. 154–61.
[9.]Op cit., I, 124 f.
[10.]Cf. ibid., I, 685 f.
[11.]For a good exposition of Duguit’s theories of law as well as for a criticism of the same from the inadequate standpoint of an analytical jurist, see Westel W. Willoughby, The Ethical Basis of Political Authority (New York: Macmillan Co., 1930), chap. 21. Cf. also Charles G. Haines, op cit., pp. 260–72.
[12.]For the theories of Krabbe, cf. Westel W. Willoughby, op. cit., pp. 410 ff.; Charles G. Haines, op. cit., pp. 274–77.
[13.]For a forceful criticism of Kelsen’s theory, see Erich Kaufmann, op. cit., pp. 20–35; Herman Heller, Die Souveraenitaet, ein Beitrag zur Theorie des Staats- und Voelkerrechts (Berlin and Leipzig: W. de Gruyter & Co., 1927); Heinrich Lenz, “Autoritaet und Demokratie in der Staatslehre Kelsens,” Schmollers Jabrbuch, L, 4, pp. 93–124.
[14.]Das Voelkerrecht systematisch dargestellt (10th rev. ed., Berlin: Verlag von Julius Springer, 1915), p. 65.
[15.]For a rather full account of the results of Niemeyer’s questionnaire, see Charles G. Haines, op. cit., pp. 294–300.
[16.]National Socialism and the Roman Catholic Church (New York: Oxford University Press, 1939).
[17.]Cf. Ernst R. Huber, Verfassungsrecht des Grossdeutschen Reiches (Hamburg: Hanseatische Verlag, 1939), pp. 194 ff.
[18.]Cf. St. Thomas, De potentia, q.9, a.5.
[19.]Op. cit., p. 361.
[20.]Pius XI, Encyclical Mit brennender Sorge (1937), cited by Michael Oakeshott, The Social and Political Doctrines of Contemporary Europe (Cambridge: Cambridge University Press, 1939), pp. 53 f.
[21.]De civitate Dei, Bk. IV, chap. 4.