Front Page Titles (by Subject) CHAPTER VII: The Reappearance of Natural Law - The Natural Law: A Study in Legal and Social History and Philosophy
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CHAPTER VII: The Reappearance 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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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.
Philosophy and Content of the Natural Law
[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.