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CHAPTER V: The Turning Away from 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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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.
[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).