The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• Translator’s Preface
• Part One: History of the Idea of Natural Law
• Chapter I: The Legacy of Greece and Rome
• Chapter II: The Natural Law In the Age of Scholasticism
• Chapter III: The Turning Point: Hugo Grotius
• Chapter IV: The Natural Law In the Age of Individualism and Rationalism
• Chapter V: The Turning Away From Natural Law
• Chapter VI: The Victory of Positivism
• Chapter VII: The Reappearance of Natural Law
• Part Two: Philosophy and Content of the Natural Law
• Chapter VIII: Being and Oughtness
• Chapter IX: Intellect and Will
• Chapter X: The Structure of the Sciences
• Chapter XI: The Nature of Law
• Chapter XII: Morality and Law
• Chapter XIII: The Content of the Natural Law
• Chapter XIV: Natural Law and Positive Law
• Chapter XV: Conclusion
• Select Bibliography
• General Studies
• Ancient
• Medieval and Scholastic
• Enlightenment
• Anglo-american
• Contemporary Debates

PART TWO

Philosophy and Content of the Natural Law

CHAPTER VIII

Being and Oughtness

The history of the natural-law idea shows that there are many ways of clothing any system of ideal law with the appeal of the natural or the rational. In periods when the positive law, grown rigid, is no longer the order of justice that people believe in, but rather a means in the struggle of the ruling class to maintain its social and political power which can no longer be justified in the name of the general welfare, revolutionary and reforming groups, unwilling or unable to appeal to the “good old law,” have to appeal to the natural law. On such occasions, however, the natural law all too readily appears as something impure, as almost inextricably entangled with juridical demands arising from the concrete sociological situation: demands whose bases are not solid from every point of view, whose support lies in passion rather than in reason.

Yet one point history does make clear. The idea of natural law obtains general acceptance only in the periods when metaphysics, queen of the sciences, is dominant. It recedes or suffers an eclipse, on the other hand, when being (not taken here in Kelsen’s sense of mere existentiality or factuality) and oughtness, morality and law, are separated, when the essences of things and their ontological order are viewed as unknowable.

The natural law, consequently, depends on the science of being, on metaphysics. Hence every attempt to establish the natural law must start from the fundamental relation of being and oughtness, of the real and the good. Since the establishment of the natural law further depends upon the doctrine of man’s nature, this human element has also to be studied, especially inasmuch as the question of the primacy of intellect or will in man is related to being and oughtness. In the next place, justness, or right as the object of justice, needs to be considered if we are to grasp the distinction between lex naturalis and ius naturale. A brief survey of the order of the sciences will thereafter be in place. Only then, finally, will it be worth while to go into the details of the natural law, in order to explain, from the theoretical side as well, the actual historical fact of the perpetual recurrence of the natural law.1

If moral philosophy and, in moral philosophy and with it, legal philosophy are to have a solid foundation, they must be a continuation of metaphysics. At least this is true of a natural system of ethics and jurisprudence, though not of a positivist one which is grounded only in a will as such. In this connection “being” does not denote simple existence, the imperfect form of being. It means essential being, the esse essentiae. Kelsen, who repeatedly asserts that oughtness has nothing to do with being, with the factual, and that the science of law must be constructed in a purely normological fashion, has not heeded this distinction which is basic for the metaphysics of realism. His rationalism, therefore, leads him to a theory of law devoid of contents and constructed apart from the factual, the existent. Yet since his atheistic relativism prevents him from acknowledging with Occam a supreme omnipotent will of God as the source of all norms, Kelsen’s rationalism ends by bringing him to the position that factual reality is indeed the ultimate, primordial norm, that is, the existence of the order of the civitas maxima, the factually existing world legal order. But this position is downright paradoxical in view of his ideal of a science of pure, normative law built upon the unbridgeable opposition between being and oughtness. Thus for Kelsen, precisely because he lacks Occam’s supreme will which lays down the positive norm, existence and oughtness ultimately coincide. Thus he arrives at an extreme empiricism. Had he had a metaphysics, the doctrine of essential being, he would have avoided this contradiction.

For being and oughtness must in final analysis coincide. Or to express it differently, being and goodness, the ontological and deontological or moral orders must at bottom and ultimately be one.

Accordingly, the first prerequisite of an unalterable, permanent, standard natural law is the possibility of a knowledge of being, of a knowledge of the essences of things; in other words, a realistic epistemology or theory of knowledge. For Pufendorf, Kant, and others, who have no realistic epistemology, not being but some impulse or other, a special property like sociality or a postulate of practical reason like freedom, is the source of oughtness, the principle of ethics and of natural law. Deductive reason is thereby freed from control by reality and consistently indulges in an increasingly hollow rationalism which, to be meaningful, borrows continually from the actual political and sociological ideals of the age. Natural law in the strict sense is therefore possible only on the basis of a true knowledge of the essences of things, for therein lies its ontological support.

Thomistic philosophy lays the foundation of the natural law in the following manner: Man perceives individual things through the imagination and the senses, and he is thus able to apply the universal knowledge which is in the intellect to the particular thing; for, properly speaking, it is neither the intellect nor the senses that perceive: it is man who understands by means of both. The intellect alone does not understand; that is to say, objective reality or the things of the external world do not release in the soul ideas of things which are already innate. Nor do the senses alone perceive: it is not individual things alone that exist, and the concepts of essences, which the intellect forms in a quasi-authoritarian manner from motives of economy of thought, are not without foundation in reality, as both nominalism and sensism maintain. Again, it is not the intellect alone that understands, as rationalism pretended when it placed the conditions and the measure of knowledge in the intellect as subjective forms of the latter, and when it failed to make things or reality the measure and condition of knowledge. As a result, the deductive intellect, for which the essences in real things remain unknowable, can no longer control itself by reference to reality. But man understands by means of senses and intellect. Consequently, through intellectual activity he knows the essences from the things. Things in their reality, i.e., that which actually is, are the measure of knowledge. The entire domain of that which is (and is therefore knowable) in the context of the first principles and ultimate particulars constitutes the intellect’s field of investigation.

The things themselves are the cause and measure of our knowledge. The speculative intellect is moved by the things themselves, and thus the things are its measure. The being of the thing is the measure of truth. We constantly meet with these and similar propositions in the writings of St. Thomas. It further follows that there is nothing in the intellect that has not first been in the senses.2 For the senses are the gateway through which things or reality pass, according to the mode of the intellect, into the latter’s immaterial possession. But the senses always portray only the particular. Phantasms, the images of things, transmitted by the senses constitute material for the intellect, and this material has to be transformed from sense perception into intellectual knowledge. Knowledge, however, is the apprehension of essences. A thing is not known through the senses, but through the intellect with the aid of the senses, since the intellect apprehends or takes into itself the thing in its essence, in that which it is. At first, then, the intellect is passive. Reality exists prior to the intellect. The mental image is a copy whose original is the real. This real, moreover, presupposes for its actuality only God the Creator, the first creative intellect, who as the All-actual and All-operative gives things their measure. But reality is independent of its being thought of or noticed by the finite intellect. It exists whether or not the finite intellect thinks of it.

The human mind is at first passive, receptive, open. It is not, however, as though the intellect were affected by the senses and, looking into itself, perceives innate ideas released through sense impressions. Nor is it as though there were in the intellect a thought-mechanism which now in accordance with subjective conditions works the images into ideas, independently of the being of the thing represented. On the contrary, the human mind is able to understand only by remaining in contact with reality: by continually adjusting its knowledge to reality. For true cognition is the agreement of the thing as known with the object of knowledge, the thing itself. Or, according to the recent way of stating the matter, it is the agreement of the assertion expressed in the judgment with the actual reality, of the logical with ontological truth, of the intellectual equation with a real equality. Hence the great importance of experience, the incessant self-orientation toward reality which is the norm of thought. Continual experience of reality, not a sort of geometrical deduction from a principle, is the adequate method. This is all the more important, too, the farther thought wishes to proceed with its deduction. St. Thomas himself requires experience in particular for moral philosophy and the science of law. Not doctrine, but experience over a long period of time proves the goodness of a law. The difference between realism and an empiricism that glories in experience does not, consequently, lie in the preference of empiricism for experience (induction) whereas realism, so to say, prefers speculation (deduction). The difference consists rather in the fact that empiricism remains content with what is in the foreground, with actual reality, whereas realism, with its delight in knowledge, holds it to be both possible and necessary to push beyond the cheerfully affirmed actuality to that which is in the background, to the metaphysical, to the essences and their laws of being in the actual facts.

The object of rational knowledge or cognition is therefore not the particular or the individual as such; this the senses lay hold of. The object of cognition, what judgments assert of the individual thing in the predicate, is what the thing is: the essence of the thing which lies hidden in the core of phenomena as an idea in every thing of the same kind; in a word, the form. The intellect does not attain to the core of the being by way of intuition, by the immediate contemplation of the being, but by way of abstraction. This brings us to the famous dispute over universals and to the distinction, basic for the possibility of all metaphysics, between essence (quiddity, whatness) and existence (haecceity, thisness).

Sense perception grasps only the particularity of the existent being, of the individual thing, as, e.g., this man or this concrete state. But cognition is founded on the perception of the universal, of that which is in all things of the same kind as their quiddity or essence. The thing is that which the abstract concept of the thing, the object of intellectual knowledge, represents, signifies, means; and this object of intellectual knowledge is really in the thing. Being belongs to a nature, e.g., to the nature of a stone, in a twofold manner: existential being, so far as the nature is in this stone and that one, which it therefore possesses in the individual thing; and intentional or mental being, which the nature attains in the individual intellect, in mine and in yours, so far as it is thought of by us. But the nature becomes universal and hence representative of the essence, the quiddity of the thing, when it is abstracted, as St. Thomas says, ab utroque esse, when it is viewed apart from existence in things of the external world as well as from existence in the thought of some intellect. It is this nature, considered absolutely and in itself, which is predicated of all individuals as their quiddity, their form, their essence, their nature.

The universals are not substances.3 They do not live in a heavenly region, nor does the soul, affected by sense impressions, remember them from its premundane sojourn in that region, as Plato held. Nor are they mere names or vocal utterances (flatus vocis) which, lacking a foundation in reality, were arbitrarily devised by human agreement for the purpose of bringing order into the welter and chaos of sense impressions; hence they are not arbitrary products of the human intellect or of the human will. Finally, neither are they types derived by a process of pure induction from individual things: certain uniformities which lead only to an empirically probable general validity, so far as our experience has gone. On this distinction rests that of existence and essence; upon it also is founded teleological thinking as well as the unity of being and oughtness in the metaphysical order.

This essence in the thing is the measure of our knowing. It is the universal predicate in the judgment which establishes the truth of our knowledge. For a judgment does not say that the abstract concept in my mind is the thing, but that the objective content, which is independent of the mere fact that I am thinking of it, of the abstract concept is perceived by me in the individual. For example, a state in itself does not exist. Concrete states alone exist. But a social unit, a territorial corporation, I call a state because and so far as it is a realization of the idea “state.” Accordingly the intellect alone does not know, nor do the senses alone know, but man knows by means of both.

To be sure, as has been stated, things as bearers of essence can be the measure of our knowledge only because they themselves in turn receive measure from the supreme creative intellect of God, who measures all things with wisdom. The divine reason by thinking creates the essence of things. The divine will brings them into existence either immediately as first cause or indirectly through secondary causes. This is basic for the possibility of the natural law, because it means that the essential forms are not dependent in their quiddity on the absolute will of the almighty Spirit, but only in their existence. The essential forms of things are unalterable because they are ideas of the immutable God. Occam’s question of whether God must be able to will that His rational creatures hate Him is the foundation for his moral positivism. Conversely, the doctrine of the immutability of the natural law, of the natural goodness of certain moral actions that follows from the nature of things, has meaning only if the unchangeableness of essences is acknowledged. These lines of thought are of importance because the principle that law is positively something pertaining to reason and not mere arbitrary will depends upon this realistic epistemology. This is also shown indirectly by the fact that the principle that law is arbitrary will (auctoritas facit legem, and other equivalent formulas) is founded upon a nominalist or purely empiricist theory of knowledge.

The principle that being and truth coincide is a further consequence of the foregoing considerations. Intellect and reality stand in a threefold relationship to each other. From the viewpoint of the intellect we speak of knowing, of the thing, of the real, of being known, and the unity of both is called truth. To know a thing, however, means to apprehend or assimilate the essence of the thing or its form. In contrast to creatures which lack cognition, the intellect is capable of having, and even of becoming, the form of another (every created) thing. The knowing mind is in a certain manner everything. Knowledge is possession of forms. “The intellect in act is wholly, i.e., perfectly, the thing understood.”4 The attainment of the abstract concept, of the universal, whose content is the essence, is the function of the active intellect. The latter gathers from the real, which is given in the mental image of the sense impressions, the immaterial essential core, intelligible being itself, which however is identical with the natural being in the real. Hence a being, so far as it is intelligible, is also true. All that is is true, because it is knowable.

But the essence (form) which constitutes the real thing in its being is also the end, the final cause, of the thing. The Aristotelian-Thomistic theory of knowledge starts essentially from the actual fact of motion, of self-change or of being changed, in short, from the attempt to comprehend becoming. Thence came the distinction between an inner, enduring core, the form, and a changeable element, the matter, that which is formed or molded in every material thing. The prototype of such thinking is the creative activity of the artist, who fashions the form out of the material or matter, as well as organic growth in the realm of animate nature, as in the case of plants: in seeds the incorporeal form, acting after the manner of an entelechy, unfolds itself in the matter. The form is not only the proximate efficient cause of the thing; it is also its end. All beings aim at, strive after, desire, their own perfection. But goodness is that which all things aim at, strive after, desire, since the essence of goodness consists in this, that it is in some way desirable. Therefore perfection and whatever leads to it are good.5 Becoming, the proper condition of all created being, is the way to perfection, to fullness of being. Hence the more perfectly a created being becomes its essence, and the more its thisness approaches its quiddity, the more does the essence overcome the imperfection in the existence. In God, the most perfect Being, essence and existence are consequently identical. God is pure Act; He is absolute, most perfect Being. The creature, however, is its quiddity in an imperfect manner only; yet it is intended to become this quiddity, to realize its idea. Becoming is the condition of the creature; being is the nature of God. The full realization of its nature, of the idea, is the end or goal of a thing, ever greater realization of the quiddity in existence. This holds true of inanimate nature, so far as it is moved from without, as the artist fashions more and more perfectly the form of the statue out of the material. But it also holds good of animate nature, which in the process of becoming realizes more and more perfectly the form which is germinally present in it. Whence the axioms: every being, as being, is good; being, truth, and goodness are convertible.

Let us take an example or two. The so-called marriage that legally existed for a while in Soviet Russia was rejected by the more or less Christian West because it was not distinguishable from concubinage. But this position did not rest on a comparison of the Soviet view of marriage with the marriage law of the French Civil Code, or with the matrimonium of Roman law, or with the marriage legislation of Germany or of the Anglo-Saxon countries. It was based upon a measurement by the idea of marriage which is expressed and exemplified in the positive legal institutions of these codes. We speak of the imperfection of a piece of marriage legislation by measuring it against the idea of marriage. Moreover, in the history of marriage legislation we distinguish stages according as the positive, historical, legal forms realize the idea of marriage in a more or less perfect manner.

Again, a territorial corporation or a tribe does not become a state by the fact that international bodies or other states recognize it, as though international recognition were constitutive of right. No; this recognition takes place, and the territorial corporation has a right to this recognition, because an actual case is present which realizes, however imperfectly, the idea of state; in this way a state can become known, and it thereupon has a right to formal recognition. The basis of the obligation to recognize this state lies in the degree in which the idea of state is realized. Incidentally, the school of comparative law leaves us unsatisfied because, for fear of natural law, which nevertheless makes its appearance, it avoids taking the final step to the nature, to the idea, of legal institutions. Its work thereby becomes interesting, instructive, informative. But it enters only the vestibule of the philosophy of law, where its skepticism detains it.

The teleological conception, grounded in the metaphysics of being, is therefore the basis of the essential unity of being and oughtness, of being and goodness. The entire past had to be forgotten before the theory of pure law, the normological school, could maintain that being has nothing in common with oughtness. It was right when it was unwilling that empirical existence should be regarded as a root of oughtness. The factual cannot become right in virtue of mere factuality. There is no factuality of right. A basis of right exists only when in something factual an essential being is striving for realization. Right can never arise from a violation of right. Yet even laws of an illegitimate ruler can bind in conscience, not in virtue of the illegitimate power, but by reason of the actual fact of the common good realized through the laws, irrespective of their factual source, and so far as they realize it. The distinction between essence and existence would have preserved from its antimetaphysical formalism the theory of pure law, whose criticism of the thesis that the fact creates right is so effective. It would likewise have saved it from its ultimate relapse into the thesis of the factuality of right in the case of the civitas maxima or great society.

The essence of a thing is the norm and the goal of its becoming. But the creature is always in the state of becoming or development, whether toward the goal, toward goodness, or away from the goal, toward evil, that is, toward the lack of being. But goodness is the final embodiment or realization of the essence in existence, of the tendency of the existent being toward its essence. The fullness of being is the goal. Every being (everything that is real) tends naturally to become its essence, to realize its idea. But that toward which a nature has always an essential bent is a good; for it is an inclination toward perfection. Every real thing moves toward its essence. The perfection of being is the end, the good, the essence. Fullness of being is the real in the repose of the goal of becoming, of self-movement, or of motion from without.6

Thus in the essence lies the norm, the end or goal is in the quiddity, and the good is the full being. Therefore all that is, so far as it is real being, is good. But since the good also ought to be, it follows that in the domain of metaphysics being and oughtness coincide.

These ideas lead further to the conception of an order of reality, that is, according to the degree of being which things possess. This order rises from purely potential being which is not yet real through the stages of created actual being with a greater and greater content of being and with less and less mere potentiality. It mounts from the inanimate creation through the world of animate beings to the living rational being that is man as the norm of creation. It culminates in God, the most perfect Being, who is both infinitely superior to the whole of creation and essentially different from it. In God all distinctions between being and becoming, motion and immovableness, potency and act, essence and existence, become meaningless. For God is purest Being, purest Act, unmoved Mover of all things, and therefore most perfect Goodness, deepest Truth, ultimate Norm and highest End, in whom there is no distinction between essence and existence. Hence God as the supreme Good is also the goal of all created being, as indeed the latter is being solely in virtue of its participation in the divine Being, although merely in an improper, analogical sense. God is the final end of all human life and activity. His glory is the goal of creation.

The world is order. The order of creatures according to the differentiation of their natures and their gradations proceeds from God’s wisdom. Chance is not the origin of things, nor is the world a chaos into which our intelligence had to bring order. The law of order corresponds to God’s wisdom, which first conceived it in idea prior to God’s will calling it into existence. This order is therefore an order in accordance with the essence of God. Whatever is real is an imperfect exemplification of the ideas of God which are embodied in things. Man recognizes this order as directed to one final end, to God Himself, who at one and the same time is origin and end of the order. For the rational creature endowed with free will, who cooperates in shaping the world, the order of being thus becomes an order of ends, culminating in the final and highest end, the glory of God.7

CHAPTER IX

Intellect and Will

The order perceived by reflective thought is not, however, a rigid, static order of motionless things. It is not external compulsion, a clocklike mechanism which, once wound, runs according to mechanical laws. The order conforms to the natures of the things. It is indeed an order of necessity for inanimate as well as for living but irrational creatures. But it is an order of freedom, a moral order, for beings endowed with reason and free will. Therefore, so far as man perceives that he is a creature possessed of free will who is not subject to blind necessity but to the law of freedom, he also perceives that this order, in accordance with God’s will, ought to be. The ontological order becomes, in relation to man endowed with free will, the moral order. The order of being confronting the intelligence becomes the order of oughtness for the will. Since, therefore, from knowledge of the essences of things the order is perceived as established by God in conformity with His essence, this order necessarily appears to the will of the rational and free creature as likewise an order to be attained and preserved and as a norm of the finite will. But this order is naturally and really “given.” It is not projected by human reason, in keeping with subjective, regulative forms, into an external world which in itself is unrecognizable as order. It is objective order, independent both of our thought and of its being thought of here and now.

In its essence this order is established by God’s wisdom; in its existence it has proceeded from God’s will. In its meaning and end it is again directed to God, the highest end. Teleologically also there is but the one order, because being is both true and good.

The law of order, then, does not lie in the bare, positively promulgated will of God, but in the nature of things as God’s wisdom ordains them. The order of being can be a moral order only if its essential basis is God’s wisdom, only if in God the intellect is, humanly speaking, the nobler faculty. Otherwise we could never derive a norm from the essential order of the world, but solely from the revealed will of God.

It has already been shown how in moral philosophy this thesis of the will as the nobler faculty led, and had to lead, through Duns Scotus to Occam, i.e., to the most one-sided moral positivism, for the doctrine of the will as the nobler faculty is itself the root of nominalism. But nominalism, directed only to the individual, particular thisness, to the existence which is related to the will, arrives in its extreme forms at the denial of the clear and distinct knowability of the essences of things, of the essence which is related to the intellect. The universals are but vocal utterances. Reality, since in its quiddity it is not unmistakably knowable for us, is likewise not the measure of our knowledge. The order of being cannot of itself become a norm of the will; the absolute, omnipotent will of the Supreme Being can alone become that.

The entire doctrine of the eternal law and natural moral law is undermined by such a view. Just as the theory of will in municipal and international law cannot admit a law beyond the positive one (or, more precisely stated, beyond the factual will as a persisting act), so Occam, for instance, could not admit a morality that does not have its first, proximate, and sole norm in omnipotent will, in the absolute power of God. If, then, the idea of God and therewith the supreme personal will are lost to sight or rejected, nothing is left as the source of norms but the concrete will of the earthly lawmaker. Or, as in the case of Spinoza, the deep impulses of nature (here taken as contrasted with mind) are regarded as the natural norm. The biological as well as materialistic ethical systems and theories of law have here their roots.

From this it follows that the doctrine of the priority of the intellect over the will in God as well as in man is a prerequisite of the possibility of a natural moral law and hence of the natural law in the narrower sense. It is significant that traditionalism is congenial both to the historical school of law and to the conservative thinking of Donoso Cortes, De Maistre, and A. von Haller, a consequence of the deep feeling against rationalism. The principles of morality, it appeared to them, are not to be discovered in being. They are a positive revelation, a primordial revelation, mysteriously handed down through the centuries and millennia in the hearts of men.

The objective, the real, is the measure of knowledge. The order subsisting in reality is perceived by man. At first it is known in a speculative, purely intuitive way. Reason is thus for a long while absorbent, receptive. But man is not only pure reason; as a free agent and part of the order, he is himself called to realize it. As reason turns from pure, merely receptive knowledge, from the idea as end, to existent being, it becomes practical reason which is directed to doing and making. Being is perceived as oughtness; the idea is perceived as goal and norm of making and doing. Realistic metaphysics sets out from artistic activity as a model as it does also from self-consciousness, from man’s self-knowledge. Man does not act blindly. There are not two reasons in man. On the contrary, the rational soul, while it apprehends being as truth, directs the known truth to action. The position that the practical reason is the extension of the theoretical reason corresponds to the position that moral philosophy, the science of moral action, is an extension of metaphysics, the science of being. The speculative intellect becomes practical. First the theoretical reason knows, and the real exists prior to it. The known truth thereupon appears to practical reason as truth to be accomplished through the will.1

In this priority of the real or of being over knowing, and of knowledge over willing, lies the basis of the possibility of a natural moral law. The structure of moral action is built up from the knowledge, through the theoretical reason, of the idea as goal of the being by way of the recognition, through the practical reason, of this being as a good. This good is then proposed to the will as something to be striven for.

Knowable being is the principle of oughtness. The supreme principle of oughtness is simply this: Become your essential being. For the rational, free nature of man this signifies: Act in accordance with reason; bring your essential being to completion; fulfill the order of being which you confront as a free creature.2 The order of all being has its principle in God: as order of essences in God’s essence, as created existing order in God’s will. The essences of things, as first creatively conceived by God’s intellect, are, once established, unalterable.3

This order of the world is the eternal law. The purposiveness of things, their continual pursuit of their ends, which reveals the order, points to the supreme Lawgiver. Accordingly the eternal law is nothing else than the exemplar of divine wisdom, as directing all actions (of rational creatures) and all movements (of irrational creatures) to their due end.4 Or as St. Augustine had defined it, “the eternal law is the divine order or will of God, which requires the preservation of natural order, and forbids the breach of it.”5 But order results from the steady pursuit of their ends on the part of the various natures, from the natural activities implanted in things by God in conformity with the natures of the things. “All things partake in some way of the eternal law, in so far as, namely, from its being imprinted on them, they derive their respective inclinations to their proper acts and ends.”6 But they participate in it in keeping with their natures: the unfree, irrational creatures in an unfree manner, blindly obeying the compulsion of their nature; the rational, free beings in the freedom of oughtness. The order of the world is an order of absolute necessity for unfree creatures, but it is an order of oughtness, a moral order, for rational and free beings. In the former case the eternal law is a law of necessity; in the latter, it is a moral law of freedom.7

The natural moral law is therefore the eternal law for rational, free beings. The ontological law becomes a moral law; the order of being becomes an order of oughtness. The natural moral law may be defined8 as “the light of reason inherent in us by nature, through which we perceive what we ought to do and avoid; or also: the knowledge, communicated to us by the Creator through nature, that we must strictly observe in our conduct the order which corresponds to our nature.”9

CHAPTER X

The Structure of the Sciences

The realistic theory of knowledge is the basis both of the unity of knowledge and of the internal coherence and organic structure of the sciences. Despite all distinctions of objects or ways of experiencing and looking at the one reality, and notwithstanding all the differences of methods, the sciences form an integrated system. Not only do they all rest upon metaphysics as the foundation of knowledge in general, but they also find their crowning in metaphysics as the philosophy of being, the science which affords the deepest knowledge concerning the principles and causes of being itself. The individual sciences deal with being from specific viewpoints. For instance, ethics deals with the norms which determine the deeds and actions of free persons, with the oughtness which springs from being; and physics treats of material things in their causal connection, their mode of existence, their motions. At the end of every science, moreover, there stands, not the value of the science for practical use, but its discharge into knowledge as such, the most profound impulse of the human spirit. Indeed, man is so dominated thereby that we must affirm that his deepest urge is to know as much as possible about everything. Wherefore Genesis has quite rightly designated pride, the desire to be like God (“You shall be as Gods, knowing good and evil”; 3:5), as the greatest sin. And the modern age merely betrays its shallow, vulgar, and unphilosophical mentality when it ascribes the temptation of the first human pair to concupiscence, as though sexual love itself were not at bottom a kind of impulse to know.1

Metaphysics is the logical foundation of all science. All science is a system of general, necessary judgments touching the existence or essence of their objects, and to that extent they constitute true and genuine knowledge. Thus jurisprudence is a systematic formulation of judgments about the general and particular positive institutions of the legal order: their existence, essence, sources, principles, normative coherence, validity in space and time. The history of law is a systematic exposition of judgments relating to legal arrangements that were formerly in force. International law is a system of judgments about the legal ordering of the community of states. But the formal element of every judgment is contained in the verb “to be”: jurisprudence is a normative science. Hence the science of being (of its forms, principles, and modes) is the basis of every other science. Being is universally “given” simultaneously with every act of knowledge: knowledge is true knowledge through its agreement with a being. Being, however, is reality differentiated according to act and potency, according as being is determined or is capable of determination. Being is reality before the intellect and truth in the intellect; it is goodness before the practical reason and in the will.

Certain fundamental laws result from being: the principle of contradiction (nothing can both be and not be at the same time under the same respect), the principle of sufficient reason, the principle of causality. They are absolutely universal; they are always valid, even in regard to purely conceptual possible being, provided it is something conceivable by reason. Yet this does not mean that metaphysics as the first science must necessarily be also the first in time, as though the cultivation of other sciences were rendered possible only through it. It merely means that its essential principles first render science possible. In this way we positively hold in our secure, habitual possession the principles of contradiction, causality, and differentiation between being which determines and being which is capable of determination: and this possession is unconscious because it is continually experienced. These principles guide our entire thinking. They are valid for every object of knowledge, so far as it must possess a minimum of being in order to be apprehended or known at all. The first principles of theoretical reason are self-evident. Even an actual theoretical doubt about them proves their axiomatic validity: to doubt them is to affirm them in the very act of doubting.

“Philosophy does not inquire about particular subjects in so far as each of them has some attribute or other, but speculates about being, in so far as each particular thing is. … Physics studies the attributes and the principles of the things that are, qua moving and not qua being (whereas the primary science … deals with these, only in so far as the underlying subjects are existent, and not in virtue of any other character).”2 The various kinds of being, participations of universal being by the many particular beings, particular reality in contrast to universal reality: all this conditions the diversity of the sciences. Nevertheless the different sciences are interconnected and they have a single object: that which is, and a more and more comprehensive and profound knowledge of it. How well and aptly, then, the creative spirit of all languages speaks of the craving for deep knowledge, for what lies beneath the surface, for the obscure that lies under and behind the clear and obvious! Realistic philosophy has no tendency to separate the sciences in place of distinguishing them; it has no tendency toward a fanatical excessive specialization.

Just as the speculative intellect by extension becomes the practical intellect, so metaphysics becomes moral philosophy. That which is, so far as it is, also ought to be. The essences or natures of things ought likewise to be the goal of the development and active formation, through the secondary cause, of the existing organic thing as well as of the thing to be produced by art. And the order of the world, as it exists ideally in the natures of the things ordered, is for the free will an order that ought to be realized. Likewise the essential nature of rational and free man ought to be. Realize your essential nature: such is the primary norm of moral action, the perfecting of the idea of man.

There are in man, however, as the slightest reflection makes plain, different modes of being. Man belongs to the corporeal world, to the world of sentient creatures, and to the world of rational, free, and social beings. To this complex reality correspond various sciences which concern themselves with man inasmuch as he belongs to these worlds. But as a rational, social being endowed with free will, he is the object of the sciences that are properly human: of psychology, as a rational being; of social philosophy, as a being that is essentially social; of sociology, as a being that exists in concrete social forms. Yet as a creature that shapes his own rational and social life and being in freedom and not through compulsion, man is the object of the moral sciences which lay down norms of action in the light of the idea or essential being of man.

The first principle of ethics, that good is to be done and evil avoided, obtains its material content (the determination of what is good) from the essential being of the rational, free, and social nature of man. Thence result a natural social ethics, which also rests upon social philosophy, and, as part of it, a natural law, the natural law in the strict sense. When they were not treating of law in the narrower sense, the Scholastics and their successors frequently called their entire moral philosophy institutiones iuris naturalis. This served a good purpose: the unity of morality and law was thereby safeguarded. Moreover, law, through its inclusion in moral philosophy, was given its metaphysical basis. The science of law received its foundation, the philosophy of law its objects, and positive legal institutions their legitimation in the natural law, which in its turn rested upon social philosophy and hence upon the metaphysical doctrine of man. The oughtness or obligation of legal norms also obtained thereby a material foundation in the essential being of man’s social and rational nature. Thinkers thus escaped positivism, which believes that it has to acknowledge and recognize only a factual willing of the norm by a lawmaker who has force at his command. Positivism has always originated in philosophical skepticism, or it is a purely arbitrary short cut in the matter of determining the structure and interconnection of the sciences. It renounces inquiry into the reason of the norm.

The essentially social nature of man means that his mode of being is social being, and that the idea of man is perfected in the community and its gradations. This is not a requirement of some impulse or other, but a reality which in ever increasing human experience shows itself as “given.” Social being, the necessary communities of the social animal, is the object of social philosophy. Social being is in reality. Therefore continual contact with reality and observation of social life are needed in order to be able to make assertions and form judgments about the nature of social being. Only then can we discern what is permanent amid the changing situations, amid the alterations of outward forms in the course of history. With regard to social science, then, social philosophy plays a role similar to that of metaphysics in respect to the sciences in general.

It follows, consequently, that in this case also essential being becomes oughtness to the practical reason. In this case, too, essential being becomes the goal and norm of what is taking shape through the free activity of the human will. Social ethics and the philosophy of law are extensions of social metaphysics. As the mind by cognition draws out or abstracts the nature of social being from the social data, from reality, it discovers the first social ideas and principles. It does not itself construct them or postulate them from some abstract principle or other, such as freedom.

There is a philosophy of law, a doctrine of juridical oughtness, to the extent that law and every legal order constitute a peculiar order of social oughtness, a coordination of the various social relations and connections among men from the loose and ephemeral to permanent and firmly established forms of community living, since there exists a legal form of social being. The philosophy of law cannot be detached from ethics, since it is part of the latter. Furthermore, to the extent that it exists, it is as oughtness and norm grounded in essential being, in the nature of social being. Its first principles and the further conclusions form the content of the natural law. The laws of being become norms of doing and acting for the creative will. The eternal law, the law of the world’s being, becomes the natural law in relation to the rational and free creature. Whatever necessarily appertains to the perfecting of a nature which is essentially social ought also to exist and to be realized by the will. What necessarily belongs thereto, no more, but also no less, is by nature right and moral.

As social philosophy is distinguished from sociology, and social ethics from historical moral systems or codes of an epoch or class, the positive science of law is distinguished from the philosophy of law, and the positive law from the natural law. The natural law embraces the contents of both the science of law and the philosophy of law. As in metaphysics the first ideas of being in general are presupposed, so here the ideas of individual person, community, morality, and of law are “given” beforehand. “The individual legal experience depends for its clear comprehension upon the universally valid concept of law, not vice versa” (R. Stammler). Moreover, this concept of law is immediately present to us who grow up in the legal community of family and kindred-group, of professional group and village or town, and of the state with its officials, judges, and courts. This holds true even if only in the form of the general normative appurtenance of certain things, and in the form of the relation of certain persons and their action to us as individual equal or unequal members of the community. Indeed this concept of law is so present to our minds that, upon attaining the use of reason, we at once become immediately conscious of the basic juridical and moral principles and we apply them in practice. Such fundamental principles are: Good ought to be; what is mine ought to belong to me, what is yours, to you; no one may molest me in what is mine. It is precisely the same as in the case of cognition where we immediately possess the intuition of certain principles, such as the principle of contradiction.

The science of law and the philosophy of law accordingly differ in their specific objects. The science of law views its objects, legal ordinances, from the precise standpoint of their positive validity and practical application in the administration of justice, their historical evolution, their logical coherence and consistent interpretation, and their positively established legal institutions. The philosophy of law, on the other hand, has for its object the necessary universal norms; and the legitimation of every positive legal ordinance implies an attempt to realize such norms. Hence its object is what has for centuries been known as ius naturale. For this reason, too, every attempt to philosophize about law bears willy-nilly a natural-law character. For without this going back to ultimate, necessary, and permanent norms, there exist only empirical generalizations, systems of legal types, genetico-historical explanations of the factual development of a legal institution (e.g., the loan), but not knowledge of the real grounds for the universally existing principle that what is borrowed ought to be returned.

The essential nature of man, the idea of man as a rational, free, and social being is, as the normative goal, the principle of social ethics and of the natural law. The legitimation of all law must ultimately be a moral one. This is possible, however, only if the normative oughtness of practical reason is ultimately being perceived by the theoretical reason. The circle of the mind and the sciences is thus closed. The given reality and the ideal core in it, as measure of man’s knowledge and the object of theoretical reason, appear now to the practical reason, the extension of theoretical reason, as a valuable good and end, as a task to be realized. But the concrete realization does not get its legitimation from the will that does the realizing, but from the end or goal of the realization, the idea. Metaphysics is the presupposition and the crown of the philosophy of law, whose object is the natural law.

CHAPTER XI

The Nature of Law

It may be said with some exaggeration that the era of individualism was the first to pursue a philosophy of right or rights (in the subjective sense), whereas the preceding age had rather developed a philosophy of law. That would be especially justifiable were one to conceive right more as a subjective permission and power to demand, and law as objective order and the basis of duties and rights. The suum would then be first, while the norm, through which the suum would be determined and guaranteed, would come later.

The Christian doctrine of natural law, however, does not first posit the suum and the person, and only afterwards the law. But as the community is perceived simultaneously with the person, because it is “given” with the latter, so the norm which determines it is simultaneously posited with the suum. Man is continually viewed in an order that is simultaneously given, whose natural laws, arising from the nature of the essential order, require observance. Thus since thinkers did not set out from the isolated, abstract individual and did not begin by asking what are to be considered his inalienable rights, but always regarded man as a member of an order instituted by God and manifesting itself in man’s essential being, attention was paid more to the law, to right in the objective sense.1 Besides, whoever is of the opinion that law and morality may not be separated, and hence that positive law and moral law belong together, will be especially capable of appreciating this view. Laws have then an ethical aim or end. They are not merely a safeguard or protection of previously given rights. They have in addition the positive ethical function of making men better, more virtuous. But this implies that the positive law is inwardly connected with the object which the moral law has in view.

‡In St. Thomas Aquinas we find at first an entirely general concept of law. “Law is a rule and measure of acts, whereby man is induced to act or is restrained from acting.”2 This rule or law is an ought, not a blind necessity. It applies to creatures possessed of free will while it leaves their freedom intact. It is not physical compulsion. (Hence the laws established for the movements—motus, not actus—of irrational nature, the laws of nature in the present-day meaning of the phrase, are laws only in an improper sense.) Law is thus a norm for human actions which proceed from free will and are therefore actions of a being who is master of his deeds and omissions, of a being who is a person. But free will presupposes reason, in keeping with the priority of the latter. Consequently it pertains to the nature of human actions that they are somehow determined by reason and are in agreement with it. It is thus nature, and, more explicitly, rational nature, which provides the proximate criterion in passing a judgment of values on a specifically human (morally free) action. But reason, as practical reason, further regulates action since it apprehends the connections and relationships of ordered things among themselves and in relation to their end, because order arises through common direction to an end. Again, all action occurs for the sake of an end. Without purpose, action would be meaningless; without purpose, the will has nothing to strive for. But reason alone can grasp the appropriateness of the actions for attainment of the end; it alone can conceive the means and the series of intermediate ends that lead to achievement of the final end. This activity of reason, through its decision for or against a proposed course of action, precedes the will, the converting of the deliberation and the judgment into act. The content of every norm, therefore, as well as all that has in any way a normative character, is related to reason as essential nature and as principle of knowledge.3

It follows from the foregoing that law is “something pertaining to reason.”4 To the concept of law belongs “an ordinance of reason,”5 not (as it is occasionally thought) an ordinance for reason, although law is this too. For law does not speak to the blind will as such, but to the will guided and informed by reason.

Man acts for an end. Hence every action has an immediate goal. It is evident, however, that the immediate end, e.g., writing, is subordinated as a means to a higher end, e.g., the communication of thoughts. Ever wider investigation brings to light an ultimate end, to which the subordinate ends are related as to a final cause. Their relation to the final end is that which is common to them all. It belongs to the nature of law to serve a supreme purpose that is ultimate in the respective order. The purpose or end is a creative element in law and right. The final end of all human action and at the same time the principle of such action is felicitas, happiness.6 But universality belongs to this end: it is the common good of all who strive for it. To that extent law is directed to the common good in the general sense, from which it receives the property of universality. Law is thus a general norm of reason which directs the actions of free man to the common good, not to a private or particular good.7 This may not be restricted to the general welfare of the state, although this is its foremost application, but holds good for every higher community with an end of its own, in particular for the Church and the international community, but also for the family and the larger kindred-group.

To law pertains also a lawgiver. For a group of people, order among the individuals who compose it and their direction to the common end are essential. The group first receives its unity and concrete form, its sociological and juridical individuality, through the unity of order and through the end. However, the production of this unity and the enduring realization of the common good through the direction of the acting members to this goal presuppose one or more directors in the specific sense of that term. Chance or accident is not the creator of the community. For this reason the lawmaker pertains to the notion of law, which must be directed precisely to the general welfare. Consequently, too, he is the lawmaker upon whom devolves concretely the care for the common good, whether it be the corporate body itself, the people, or the constitutionally determined holder of the public authority.

Furthermore, since law is the rule of action for rational and free beings, it has of necessity to be made known to them, that they may direct their actions in keeping with it. Promulgation likewise belongs to the nature of law.

Accordingly law is a general rule of reason which is directed to the common good, emanates from public authority, and is duly promulgated.8 The will, too, is included therein. For the framing of a legal decree is just as essentially an act of the will, but only on the basis of a precedent rational weighing of the ends and means which concern the law. A rule that does not issue from the activity of reason, an arbitrary rule or an arbitrary decree, “would savor of lawlessness rather than of law,” says St. Thomas categorically.9

Law, then, is primarily not will, although it owes its positive concrete existence to a volitional act of the lawgiver. Materially considered, it has to be a rule of reason and for reason (in the one subject to the law). That is, only thereby can it obtain the decisive qualification of true law. For rational nature must be directed and guided in accord with reason, i.e., it must be in conformity with truth. That has been common intellectual property ever since the Greeks established the truth of the nomos: law is truth (veritas facit legem).

Closely connected with this idea is the doctrine that the end or aim of law is to make those who are subject to it good.10 Law as a rational norm for the free activity of man must have at bottom this objective; it is not a mere safeguard against the antisocial impulses in man which menace the community. The dignity of the laws rests on this consideration. Wherever, as already among the Greeks, law had this ethical aim, law became something sublime and venerable. This idea corresponds likewise to the ethical character of the community, especially of the state. All law wishes to educate the members of the community. All true politics is education of the people. It has required the entire emptying and disparagement of the state at the hands of individualist liberalism to bring about the denial of the educative function of the law, and to assign to law merely a protective function in behalf of the autonomous, even morally self-sufficing, individual.

Such is the nature of law. It is universal and holds good for all laws: for the moral law and the positive law, whether the latter is a statute of some corporative body or a law of state or Church.

The natural moral law, too, bears the character of law. Indeed, as has already been mentioned, a heated controversy over this point took place among the Late Scholastics. It reached its climax in the dispute between Vasquez and Suarez. The argument turned on the nature of law: Is law an act of reason, or is it an act of the will? Vasquez was in agreement with tradition when he said that law is an act of the intellect on the basis of an act of the will. Materially, therefore, he regarded law as an act of the intellect; formally, as an act of the will. Therefore Vasquez was unwilling to characterize the natural law as law proper, simply because the law of nature as an intimation of that which is good in itself, i.e., in accord with reason, and of what is bad in itself, i.e., at variance with reason, contains no element of will. Some had on this account termed the natural law a lex indicans, in contradistinction to lex praecipiens.

The idea that rational nature as such is the natural law, and that the latter has force even in the impossible hypothesis that there be no God, was carried forward by Arriaga and Grotius almost to the point of the autonomy of human reason. The contrary position was the Occamist doctrine that law is but an act of the will: hence the natural law is divine positive law, and the basis of the goodness and rightness of certain actions is not found in their conformity with nature, but in the absolute will of God, who is completely free to prescribe even the opposite course of action. That meant the dissolving of the concept of natural law. Therefore Suarez was at pains to point out that, as the light of natural reason indicates by way of judgment the inner agreement or internal contradiction of actions with rational nature, it likewise indicates in the very same act that this corresponds also to the will of God, the Author of nature.11

All law is first and foremost an act of reason. Even technically the deliberation precedes the decree. Yet law is also a decree of the will.12 The answer to the question about the nature of law is thus the answer to the question of the relationship between intellect and will. And the answer to this decides the question of whether a natural law is possible at all. The historical theories of the nature of law down to the present time cover the whole range of the antithesis: Law is reason—law is will. Besides, the nature of the law provides the basis for differentiating forms of government, and it renders philosophy of law possible or impossible.

In the United States, the judge, in virtue of his right to review the law, inquires whether an act of the legislative body is unconstitutional. Actually, however, he examines whether the act is reasonable, and he disallows it if he finds it arbitrary. The judge, or the Federal Supreme Court, thus becomes in the United States the first chamber, wholly unprovided for in the Constitution, with absolute right of veto.

The demand for a public consideration of the laws in parliament or congress, i.e., for the discussion of the reasonable grounds pro and con, is likewise understandable only on the basis of the view that law must be reason. Furthermore, paradoxical as it may sound, the same view underlay even the absolutism of a Louis XIV of France. For, as the latter passed not for a mere man but for a vicegerent of God, the reasonableness of a law which emanated from him was by inference a presumption of law and of right. The same is true of the enlightened despotism of the following century, which rested on the view that the ruler, because of his superior, enlightened reason, can manage the state to the advantage of the people.

Only Occam’s positivism in moral philosophy and that of the closing nineteenth century in jurisprudence, by clinging to the principle that law is will, held fast to the theory of will. The unfruitfulness of this theory is at the same time the reason for its rejection.

Law must be reason, too, for the sake of man’s dignity. The human person is not a means for the ruler’s use. Obedience, to be ethical, must be reasonable obedience. This requires a certain insight into the reasonable character and the purpose of the norm. Hence the lawgiver, precisely in those governments in which the laws do not originate in public deliberation, almost always adduces, generally in a detailed and solemn form, the motives of the law.

Somewhat different is the question of whether the unreasonableness of a law or an actually deficient insight into its reasonableness exempts one from obedience. Here the Christian doctrine and individualist liberalism part company. The latter optimistically considers that the individual is always sagacious enough to have the requisite insight. In addition, it proceeds from a preconceived notion that the law, as a restriction of freedom, is rather a necessary evil than a means for making the citizen good. Lastly, it is filled with a distrust on principle toward the lawmaker, whether he is a single tyrant or a hundred tyrants, i.e., a parliamentary majority. The legislator should lay down only the formal rules of procedure. The individuals themselves determine the material content of law through their contracts, which, moreover, constitute the principal form of individualist jurisprudence.

The Christian philosophy of law, however, absolutely demands the positive law. And if it declares reasonableness to be an essential note of the concept of law, it can still, with St. Thomas, characterize only the absolutely unreasonable law, i.e., one that is at variance with the natural law, as savoring of lawlessness rather than of law. But since order is a very great good, just as is the will of the state which realizes and preserves this order, so along with the demand, addressed to the lawmaker, for the reasonableness of laws goes a demand addressed to the subjects to preserve the great good of order even when a particular law cannot be entirely justified before the bar of reason. The continuance of any order at all, however mixed it may be with injustice and arbitrariness, is of greater value than the utter lack of order, than total disorder. The Christian philosophy of law can demand this because in its eyes the nature of the state is not exhausted in the legal order, although the state must be essentially a constitutional state: it must be in the law. But the state is more than that, for it does not live by law alone; it also lives by the acts of all the social virtues through which the idea of man is perfected.

We have this antithesis: law is reason (veritas facit legem); law is will (auctoritas facit legem). The Christian philosophy of law holds that, although auctoritas alone can enact the law, veritas so pertains to the nature of law that law is quite as essentially reason, i.e., an act of the intellect; indeed, from the standpoint of the precedence of the intellect, law is primarily reason. For only then can human law feed on the eternal law and be truly a norm of rational nature. The dignity of law is founded on the fact that it is “an ordinance of reason for the common good,” that it is a “dictate of the practical reason.” As norm of human conduct, i.e., of rational behavior, law must be a reasonable norm.

For the same reason, too, coercion cannot enter into the definition of law, even though, in contradistinction to moral law, physical enforceability is proper to the positive law of the state. “Hence compulsion is rather an element of wrong than of right, since the latter, so long as it functions normally, has no need at all of forcible execution” (F. von Martens). Coercion is the consequence of the dignity and necessity of the positive law. The rational end or goal of the positive law is the ethical legitimation of compulsion.

The genius of legal reason cannot, therefore, rest content with self-denying positivism. It keeps returning to the natural law, to reason and truth in the law.

CHAPTER XII

Morality and Law

It is a universal conviction of mankind that morality is a higher norm than the positive law. This conviction is so universal that lawmakers and judges continually appeal to morality; and every revolutionary relies upon a moral, higher law of justice in his opposition to the positive law. But morality itself must then be absolute; it must cause the order of values to be terminated and at the same time grounded in a supreme value and good (finis et principium). Morality bases its norms upon the hierarchy of being and of goods, which obtain their rank and proper value in their instrumental relationship to the highest good. The highest good is the Godhead, purest Being. God’s honor and glory, to which the whole of creation bears witness, are also its highest end. Therefore human morality consists in the preservation and execution of the order of being: in the perfecting and ennoblement of the unique godlike being not only in the domain of his altogether individual personality but also in the ever more perfect rightful development of communities, and this too from the first community, the family, up to the state and even up to mankind itself. This requires the more perfect development of the spheres within which human life unfolds: economics, labor, and technology quite as well as the arts and sciences. They are the great Benedicite of creation and of human culture as a whole. From the highest good they all receive due measure and their rightful place in the order of essential being. Hence it is an immoral state of affairs when economics, an instrumental department of life, becomes the dominant one: when the economic category of profit and utility is placed above man, that is, above sovereign and autonomous personal values, whether in the case of individuals or in that of national political communities.

Therefore, ethics, the doctrine of absolute morality, ranks higher than the other normative sciences such as art, medicine, hygiene, politics, legal and social philosophy. But this does not signify any narrow-minded moralization of the spheres of human life and activity. For the laws of art, hygiene, and legal organization remain for all that specific, independent laws which result from the very being of these subjects. This truth is founded upon the confidence, derived from the philosophy of being, that the realization of the specific modes of being, e.g., biological being, is at the same time a fulfillment of morality. Morality calls for fidelity to the laws of biology, whose ultimate coincidence with morality is capable of easy and ever fresh demonstration.

Every system of ethics which acknowledges a Deity distinguishes three orders of duties: duties toward God, toward one’s self, and toward ones’ fellow man. The Greeks, the Roman jurists influenced by Stoicism, the entire period of the Middle Ages, Pufendorf and Leibnitz, and Christian moral teaching down to the present day have all accepted this threefold division of duty.1

Without a doubt right is correlated with the third class of duties, with social ethics. There exists no right against oneself; the right to oneself means a right against others. Right or, to use a term familiar since Aristotle, justice (whose object is right)2 is “directed to another”:3 “it denotes essentially relation to another.”4 For justice “directs man in his relations with other men.”5 In relation to God and to oneself there exist moral duties, but no rights and legal duties in the proper sense.

But the rest of the specifically social virtues are also directed to another: love of neighbor, friendship, liberality, charity, and gratitude. How is right or justice distinguished from these? The simplest answer is: By the fact that it is derived from, and is enforced by, the will of the state, the factual will of the lawful legislator. The state admits an action at law to obtain the fulfillment of certain duties and enforces the decision of the court. Since a duty arising from gratitude or friendship is not actionable, it is consequently an ethical duty. For the most part, as is well known, a lawsuit destroys friendship. Yet this positivist explanation is inadequate. It contradicts mankind’s conviction of right: all peoples distinguish between law and right. The English Parliament is in theory sovereign: it can, to quote an expression which has become almost proverbial, “do everything but make a woman a man, and a man a woman.”6 Yet even though it is held to be able to make the wife of A the wife of B, it can never declare adultery lawful (Lord Hale, 1701). A saying attributed to the eleventh-century writer, Wippo, corresponded to the old Germanic law: “The king must learn and hearken to the law, for to keep the law is to reign.”7 The Sachsenspiegel, an early thirteenth-century treatise on the law of the Saxons, expressly differentiates the natural law, as genuine and true law, from the positive law of the state.

The proposition that law is a mere product of the factual legal will has long been flatly qualified as heresy. The contrast between legality and legitimacy, an altogether critical difference in political philosophy, would otherwise be but a play on words, and justice would be but an empty sound. Furthermore, there is assuredly a Church law (canon law) which, applicable concurrently with the law of the state on the strength of a concordat, is autonomous with respect to the state. Besides, the doctrine that the whole body of international law is derived solely from the will of states could not be upheld in view of the inherent injustice of the peace settlements of 1919 dictated in the suburbs of Paris. Since these treaties actually came into existence through consent on the part of the will of the states, their qualification as unjust must necessarily come from another source of law than the consent of the states. Lastly, is not the will of the state much more concerned with the ascertainment or finding of the law which is already in use among the members of the community than with the making of law? It would be much closer to the truth to say that right, as it were, antedates the law than to term the law of the state the sole source of right.

A specious attempt to solve the problem has been the distinction between internal morality and external legality (Thomasius, Kant). Certainly the law is for the most part satisfied with the outward fulfillment of the legal norm—for the most part! Often, however, inner motives also come into question, especially in criminal law where premeditation or cold-bloodedness is more severely punished in cases that otherwise are objectively the same. The situation is similar also in private law, where good and bad faith or the actual will of the parties to a contract, which is surely something internal, is the decisive factor, and not purely and exclusively the external document containing the contract unless, of course, the higher principle of legal security and of ability to count upon the semblance of law decides the matter. That acting in fraudem legis, i.e., with the intent of evading the law, receives no legal protection, points to the same thing. Perhaps the supposition that the distinction mentioned above is explainable by the political conditions of the time is not far wrong. The restriction of law to external conduct may well have arisen from the need to limit absolutism in the interest of a sphere of freedom for the individual. “Grant liberty of thought,” the Marquis of Posa, in Schiller’s Don Carlos, adjures King Philip II of Spain.8

However, the limitation of morality to inner peace, to that which is internal, is wholly unsatisfactory. Ethics embraces the total activity of man, his inner and outward acts. Acts of obedience toward parents, of truthful speech, and of fidelity to one’s given word certainly do not lose their moral character merely because through their externalization they become legal acts. Since they are good in themselves, even without a law they are righteous actions; and their opposite is unrighteous, even though no positive norm explicitly lays this down. It is not difficult to believe that the same motive prevailed here as in the other case. The domain of law, in the concrete sense of absolutism, was to be restricted. Only external facts and circumstances were to fall under it. The state was to be able to enjoin security, external order; but, beyond this, nothing. It was to have no ethical function. It might in this way be possible to circumvent, in the interest of liberty, moral education at the hands of the police-state.

‡St. Thomas teaches that justice “directs man in his relations with other men” in a twofold manner: “first as regards his relations with individuals, secondly as regards his relations with others in general, in so far as a man who serves a community, serves all those who are included in that community.”9 All this is brought out in the age-old saying, “Give to everyone his own” (suum cuique). But that is termed a man’s own which is directed to him, which must be regarded as due or owed to him, from the standpoint of his essential idea. It is therefore that which must be left to him. The objectively and subjectively teleological or purposive character of things, goods, and actions, as the existential basis of persons, is, in the form of “being owed,” of being necessary and hence of being enforceable, the specific feature of law. Man has a natural legal dominion over external things because he can, in virtue of his reason and will, make use of external things to his own advantage. “One’s own” denotes not merely the physical tie, the causal connection, though it can also mean this, but rather the destination for the person. “To have a right means: there is something here that belongs to us, and the will of the state recognizes this and protects us” (R. von Jhering).

“Mine,” however, presupposes an “I,” a person, i.e., a subject whose aims and end things serve and whose advantage is a goal of the actions of others, solely by reason of being a person. Right does not consider the inner, moral quality. The citizen does not owe obedience to the head of the state because of the latter’s interior moral goodness, but because he has charge of the common good. It is therefore profoundly significant when the legal reason sees only in the person a subject of right and confers legal personality upon groups of persons or associations which serve permanent human goals as bearers of rights and duties. The person exists for himself and for his own sake. He is the coordinating center of things and actions. The legal reason confers juridical freedom upon man and the human association in consequence of man’s psycho-ethical liberty, i.e., independence or autonomy. Here also being is the ultimate ground of one’s own, of a legal suum, and therefore of what ought to be done or respected by others. Hence to every right corresponds a duty. For the same reason, too, every man is legally competent. The person, the subject of right, can never by natural law become a thing, i.e., a mere means, either for another individual or for the community. That the Christian legal reason overcame slavery10 is one of the most important achievements in the history of culture.11

Love also embraces the other, but in the form of complete union, of two-in-oneness. Justice, however, embraces the other for the precise purpose of accentuating and maintaining the otherness. Separateness, the delimitation of spheres of control, the closing of the latter to others, is an essential trait of right; not fusion, but clear separation. Law gives man an absolutely private sphere, a fixed place of independence in respect to others as well as to the community. The “I” and the “you” appear before the law as separate equals, distinct first of all in themselves and only then related to each other. “Mine” and “thine” appear as the debitum juridicum, as clear, firm determinations in the same plane. Therefore my sphere of rights is separated from that of the other, and it forms the boundary of his legal competence and the goal of his duty, and vice versa.

Not all of human activity falls under the law. Only what strikes the senses, only what is meant to be manifested, is matter for the law. It has been well said that “human law does not order this to be done for the sake of that, but simply that this be done,” and that “the purpose of the law does not fall under the law.” The possibility of applying force is thus a necessary consequence of the notion of law. With ethics law has in common the power to direct. But the power to compel pertains exclusively to law. Every act or omission which relates to another, so far as it can be enforced without intrinsic contradiction, is a legal matter. The juridical character of an act is evidenced by the perception and recognition that this possible use of force is not in conflict with the inner nature of the act in question. The actual employment of coercion, therefore, in no way alters the inner quality of the legal action. On the other hand, a moral decision obtained by force is inwardly voided as a moral action or decision by the very fact of compulsion. Gratitude and pietas impel a son to care for his feeble and aged father. If he fails to do so, the law uses its force to compel him. The son’s support of his father is then a fulfilling of a legal duty, but so long as the constraint is needed the moral law remains unfulfilled.

In the sphere of law there is no place for an arbitrary decision. The legal order is essentially different from the order of love or friendship. As there is no such thing as forced love, friendship and love freely embrace the special quality of the friend or loved one: the core of his person as wholly unique, as this “you.” Law does not penetrate so deeply. It embraces the individual, i.e., a personal unity, only to the extent that he can be known by the legal mind, and then not in the uniqueness of his individual personality but in his universal nature as a person. Law presupposes a certain equality. That is the boundary of the order of justice. This leaves the inner core of the person free. Nay more, it affords him the prerequisites of free activity and guarantees such freedom. The legal order forms a network of rules around the person without regard for such individual qualities as peculiar and distinctive character traits: things and actions are thereby related to the person or are subjected to his control and competence. It compels one to cooperate or to refrain; but it likewise constrains the others to cooperate or to refrain. It erects and upholds the structure and organization of such social units as the state. It further regulates the activity, and confines within due bounds the unreasonable arbitrariness, of the holders of political power, and it turns this into moral power in the service of the general welfare. Here again, however, it is not a matter of the special, individual quality of the concrete person. The moral quality of a holder or organ of public authority does not enter into the question of his or its lawful position and of the legitimate exercise of his or its power. Catholic social philosophy was right in maintaining this view in opposition to all the sixteenth-century antimonarchists who wrote under the influence of Calvinist sectarianism. The moral necessity of living within the legal order coincides with man’s inner goal, namely, to become a moral person. Wherever law binds, absolute power is impossible.

The law is an external, objective norm. My subjective right is attached solely to my quality as an independent being, a being with a goal that is altogether its own. Especially is it independent of the coming and going of my moral qualities. It guarantees the permanence of a community as well as of the individual person. The law is not an end in itself. It organizes the community for the sake of the latter’s essential goal, and it gives me my rights for the purpose of rendering socially possible the achievement of my innate end as man. Thence comes its power to coerce.

But even though no enduring community can live without law—neither the family nor the state nor any association whatever—yet such communities do not live through the law but in the law. The married couple, the family, lives through love. Love grips the spouse in the uniqueness of his innermost being. The law touches merely his general quality as spouse. Wherever this is forgotten, wherever attempts are made to force into juridical categories each and every relation of man to man, the meaning of life is being lost. When in its panjurism, to coin a word, the natural-law doctrine of the Enlightenment sought to embrace everything with juridical categories and to explain the community as a mere product of legal conveyances, the great driving forces of society languished or became perverted. Formlessness was the final outcome in all departments of life. At least this was the case wherever the mere conservation of the existing order of things for the sake of the continued existence of society itself did not simply carry the day. The idea of the state dissolved when the state was made into a pure legal order. The idea of the family suffered an eclipse when people began to speak only of the right to self-enjoyment. The law cannot engender life, nor can it take the place of love. It can and should be but an inherently limited order that exists for the purpose of protecting life.12

In this connection one cannot fail to perceive the greatness of the philosophia perennis. It does not consist in linear thinking which, as fanaticism is accustomed to do, detaches a single notion from the ordered universe of ideas, thinks it completely through, and then becomes an ism of some sort. It is, as it were, spherical thinking. All essential ideas, which struggle with one another in their mutual interdependence, are beheld in a due and prudent equilibrium. Indeed fidelity to reality distinguishes this system of thought.13 This means that such thinking is a kind of second intellectual creation which imitates the original creation of God, the supreme Intellect, who has willed order by creating reality as a cosmos. Accordingly no prison of norms that are essentially alien to them is erected for the spirit and the irrational vital forces. These forces are first perceived in an intuitive, experiential act. (It should not be forgotten that St. Thomas, for instance, was at the same time a composer of hymns and a liturgist.) But reason thereupon constructs for the vital forces the forms in which they ought to function. It gives them the clear rational norm which is a reflection of its essential being. It gives them the rule, the framework wherein, in conformity with their nature, they can alone exist. For essential being and oughtness are correlative. The form, the law, is not life; it only guides the unruly vital forces (e.g., self-interest, the sex drive, the will to power, the acquisitive urge) in order that man can really live as man.

This explains the necessity and importance of the clear, cool rationality of law as such. But it also explains why law is insufficient for complete human living, and why law is meant to be enforced.

But law and morality are not separated. Of course, since it is the peculiar property of law to be enforceable, the boundary line of the distinction is a shifting one in history. It has shifted according as whether or not the fulfillment of definite moral duties was regarded by public opinion as necessary for the preservation of the concrete being of the community, and according as whether or not these duties were clothed in legal form. The Middle Ages were not intolerant out of mere narrow-mindedness, but by reason of the spiritual fullness of the uniform Christian culture. The heretic was not punished by the secular power because he had committed the moral sin of heresy. He was punished because in and with heresy he was doing harm to the internal stability of the community, to Christendom.14 Juridical or civil toleration, which must be carefully distinguished from dogmatic tolerance,15 had to be put into effect when the one Christian faith ceased to be a fact, when it had given way to differing creeds or denominations. Henceforth unity of faith could be looked upon as no longer necessary for political homogeneity. Whether or not disadvantageous legal effects are attached to illegitimate birth depends on whether the moral disqualification is viewed as necessary for the maintenance of the idea and institution of marriage and the family and hence as deserving of enforcement.16

‡These very examples show forth the nature of law in its inner connection with morality. There is no law without morality. An immoral law is a contradiction in terms or simply a statement of fact, namely, that this positive legal norm conflicts with the moral law and hence can impose no obligation, though the state may have the physical power to enforce it. All law requires a moral foundation.17 The will to achieve an ever greater approximation of the positive law to the norms of morality is so deeply rooted in man that even the positive law is always referring to morality. Often enough the judge, as was already the case among the Romans with their doctrine of aequitas, is not content with a mechanical subsuming of particular instances under the general norm but allows equity to play its part. In extreme cases, however, he goes back to the will of the lawmaker, who is assumed to will only what is moral; or, if the literal meaning is impossible, he puts forward an independent interpretation of the meaning of the law, on the ground that the lawgiver could not have willed anything unjust.

Yet all this does not exclude the fact that there is also a law on the periphery of law which is pure law without a materially moral character. Nor is every law necessarily a moral norm. Many police ordinances (e.g., traffic regulations), which serve merely a subordinate purpose of means to an end, exhibit no materially moral content. The same is true of the technical rules governing legal procedure or the organization of law courts. These norms bear such a technical, formal, and utilitarian character that the qualifications of moral or immoral cannot be applied to them. Questions touching a monarchical or democratic constitution, lay courts or a professional judiciary, collegiate or bureaucratic organization of offices, fall likewise into this category. Hence it is plain that these norms bear only an instrumental character in relation to the material law. The legislative process serves the law, not vice versa.

It devolves, however, upon the idea of natural law, as part of the natural moral law, to verify the morality in the law. And the high professional ethos of the true judge and of every custodian of the law also evidences it. Ulpian has given immortal expression thereto. Speaking of those who apply themselves to the study of law, the art of knowing what is good and just, he wrote: “Anyone may properly call us the priests of this art, for we cultivate justice and profess to know what is good and equitable, dividing right from wrong, and distinguishing what is lawful from what is unlawful; desiring to make men good through fear of punishment, but also by the encouragement of reward; aiming (if I am not mistaken) at a true, and not a pretended philosophy.”18

CHAPTER XIII

The Content of the Natural Law

‡From a purely factual standpoint the history of the natural-law idea teaches one thing with the utmost clearness: the natural law is an imperishable possession of the human mind. In no period has it wholly died out. At least since the advent of Christianity, it has always had a home in the philosophia perennis whenever it appeared to be temporarily banished from the secular wisdom of the jurists. Even in jurisprudence it has never entirely lost its efficacy. No one has better established this fact than Bergbohm, who was tireless in uncovering traces of the natural law. He discovered natural law everywhere, even in the thinking of the strictest positivists of the late nineteenth century. Ironically enough, Bergbohm, who had set out to banish natural law once and for all from jurisprudence, lived to hear Joseph Kohler say of his formidable attack on the natural law that he had merely demonstrated the utter untenableness of legal positivism, i.e., the complete untenableness of the doctrine directly opposed to the natural law. Indeed, even in Bergbohm’s own lifetime a distinct revival of the natural-law doctrine was observable.

But history teaches still another lesson. Whenever the sole possible foundation of the natural law vanished on account of doubts about metaphysics, not only did voluntarist ideas bring positivism to the fore, but rationalism itself discredited the natural law through its passion for deductions uncontrolled by being. For this abuse of deduction, together with the resultant absurdities, produced a skeptical attitude toward the idea of natural law.

The natural law is not in the least some sort of rationalistically deduced, norm-abounding code of immediately evident or logically derived detailed rules that fits every concrete historical situation. And this statement holds equally good of the natural moral law, of which the natural law is but a part. Yet the natural law is also no purely ideal, regulative norm which hovers over the whole of history. It is no objective mind which, as pure form, may receive ever-changing contents from the real situation. Hence it is not a norm that would not in any strict sense be valid, would never have legal validity, but would leave binding force and reality to the positive law alone.

The truth, like virtue according to the age-old Aristotelian-Thomistic axiom, lies in the mean. It lies midway between the excess of deductive rationalism and the self-denying defect of a practicalness that is held prisoner by purely external facts. St. Thomas points repeatedly to the fundamental importance of experience for the normative sciences themselves. “What pertains to moral science is known mostly through experience.”1 He unequivocally demands a long-continued study of positive legal ordinances and of customary law. Experience is far more necessary than a doctrinaire approach for those who would be experts in the normative sciences.2

A deep chasm exists between the treatises of the sixteenth and seventeenth centuries supported by tradition (e.g., De legibus De iustitia et de iure), as well as the nineteenth-century works which are products of the natural-law doctrine of the philosophia perennis (the Institutiones iuris naturalis), on the one hand, and, on the other, the comprehensive treatises of the individualist and rationalist schools of natural law compiled in the seventeenth and eighteenth centuries. Following the deductive method, these last regulate all legal spheres down to the minutest detail. Scarcely more than the formal decree of the legislator would be needed to transform them into codes of positive law.

The difference is not to be explained by theological preoccupations, as though it were the part of prudence to restrict the norms in view of the inability of Old Testament exegesis to explain away certain singular actions of the patriarchs or recorded commands of God which are in seeming conflict with the natural law. But neither is it to be explained on the ground that the natural-law thinking of these theologians, in contrast to the deistic disregard of the positive divine law, had, for what might be called practical reasons, to be limited to a few norms in order to safeguard the positive law.

The real reason for the difference lies elsewhere. There are but few natural-law norms whose intrinsic agreement with justice, with the essential being of human nature, is as self-evident as “Honor thy parents,” “Thou shalt not kill,” “Thou shalt not steal,” “Thou shalt not commit adultery,” “Thou shalt not perjure thyself or slander another.” Other norms can be obtained only by a thorough consideration of the various circumstances. But the same degree of evidence does not belong to these as belongs to the first principles. This explains not only the diversity of the positive laws according to peoples and times, but also the fact that primitive peoples (barbari) hold many things as lawful which are regarded by the legal reason of more mature and more advanced peoples as contrary to the natural law. Normative science definitely requires a more disciplined and more penetrating study, one which perpetually adjusts itself to the being and end of man and rests upon experience and comparison, than do the theoretical sciences.3

Since even St. Thomas had constantly emphasized the value of observation and experience for the normative sciences and especially for the science of law, and since he had expressly demanded extensive studies in comparative law4 for all who were to occupy themselves with moral science, it was more than a gesture in conformity with the spirit of the nineteenth century when Taparelli wished to construct his systematic exposition of the doctrine of natural law on the basis of experience. Indeed his labors were altogether in line with the whole tendency of the natural-law doctrine of the philosophia perennis. Consequently, too, the doctrine of the state of nature has had no importance for it, quite in contrast to the rationalist natural law whose foundation was precisely this state of nature (which for the most part was even viewed as historically existent).

For the same reason a development in the doctrine of natural law is possible. This does not hold good in regard to the first principles of natural law, but it is quite true in the case of the further conclusions. Thus, for example, the institution of private property has, through the teaching of Leo XIII which was occasioned (but not determined) by the situation and problems of his time, without doubt marked a notable advance in its natural-law contents over many a conception of earlier centuries. The same must be said regarding the more exact determination of the relations between the individual and the state. In fact, many matters of a similar nature have received a fuller and more searching treatment in keeping with the growing complexity and maladjustments of contemporary society. Besides, the permanent necessity of the positive law rests on the fact that the positive law gives, in accordance with natural-law norms, its positive organization to the social order. For the social order grows out of historical contingencies: it takes shape in concrete decisions drawn from the unique historical situation in conformity with the special character of the individual people in its capacity as community of persons bound together and united under law.

This reserve toward rationalist deductions provides the correct explanation of the fact that the natural law of the philosophia perennis could never be ousted by positivism, and that within this philosophical system legal positivists like Durandus and Occam have ever remained isolated instances. Furthermore, this same reserve constituted a protection against the danger of embellishing political aims with the dignity, inalienability, and eternity of natural law. Hence this natural law neither could disappear nor did it need to disappear when the political aims were achieved, in contrast to what befell the individualist natural law. On the other hand, this implies no increasingly hollow repetition of traditional, general, and therefore barren formulas. For the distribution of emphasis, conditioned by the dominant problems of the period, brought out of the wealth of inferences and deeper insights, which certainly were not always present to the minds of thinkers, an ever more thorough comprehension of the norms, their interrelations and applications. By natural law, for example, more than one form of state or government is legitimate. Yet a political ideal does exist, as acknowledged by every doctrine of natural law: the reign of the principle of subsidiarity5 and a sharing in the formation of the collective will that stresses the dignity of the person as well as of the sub-political communities which have proper ends of their own. That is to say, the political ideal peculiar to the natural law of the philosophia perennis includes a preference for the mixed form of government, and a repudiation of the attempt to turn the organized people into mere material for rulers or managers of absolutist states. “All should take some share in the government, for this form of constitution ensures peace among the people, commends itself to all, and is most enduring.”6

As self-evident principles, only two norms belong, properly speaking, to the content of the natural law in the narrow sense. These are: “What is just is to be done, and injustice is to be avoided,” and the age-old, venerable rule, “Give to everyone his own.” These norms of the practical reason are for the latter of the same fundamental importance as the self-evident, indemonstrable principles of the theoretical reason.7 Moreover, such primary norms of the practical reason, judgments of the primordial conscience, have the same certainty and evidence as the others.

These norms, however, are not purely formal rules devoid of contents. For there exist no merely indefinite justice and one’s own, which differ materially at all times. What is just and what is one’s own actually exist for everyone. In the case of the ius naturale, just as in that of the lex naturalis, the proximate and primary cognitive principle is the rational, social nature of man. As the good, so too the just or right (as part of the good) is precisely that which is conformable to rational nature.8 Thence results a syllogism: What is just, as corresponding to nature, is to be done; but this way of acting corresponds to nature; therefore one must act in this way. Or the matter may be stated with sole reference to cognition: What accords with reason and essence is the just; but this action is in conformity with reason and essence; therefore it is (materially) just.

In this manner, from the highest principles follow conclusions, of which the first share in the highest degree in the self-evidence of the first primordial norms. They present themselves immediately to human reason either as just and hence to be carried out, or as unjust and therefore not to be done. They are the same ones that have already been mentioned as the contents of the natural moral law. They have received immortal expression in the second table of the Decalogue: Honor thy father and mother; Thou shalt not kill; Thou shalt not commit adultery; Thou shalt not steal; Thou shalt not bear false witness.

These general conclusions share also in the immutability of the first principles. At first sight, however, this appears as anything but immediately evident. “Thou shalt not kill,” for instance, certainly does not seem to be valid everywhere and forever. Thus, on the strength of the natural law itself, the state is empowered to put criminals to death, and one who acts in self-defense is entitled to slay an unjust aggressor. But this objection misses the point. The brief statements of the Decalogue are not full and adequate formulations of the respective ethical principles. The humanly exact, and indeed self-evident, meaning of “Thou shalt not kill” is: “Thou shalt not kill an innocent person,” just as “Thou shalt not steal” properly means: “Do not take the goods of others against their reasonable will.”9 It is, moreover, the direct killing of an innocent person that is forbidden. This principle holds good always and everywhere.10 The killing of an innocent person has at all times been considered a crime. Nor does the attitude of certain primitive peoples toward the killing of the stranger prove anything to the contrary. For the stranger is in their eyes an enemy; he is therefore not innocent, i.e., he is not non-nocens.11

This norm is of greatest importance for the doctrine of the just war. The strict ethics of war that prevailed in former times conceived even war in ethico-juridical categories and not merely as a non-moral, law-transcending event in the life of Leviathans existing in a state of nature relatively to one another. Only a just war could warrant the killing of enemy soldiers. To be just, a war had (and, of course, still has) to be waged for a just cause, with due measure, and by public authority.12 Moreover, “enemy” or “foe” is not primarily and solely an existential concept but a juridical one: hostility, or the state of being an enemy, is a juridical quality. Hence the wounded, defenseless soldier ceases to be in the strict sense an enemy. To slay a wounded, defenseless man is murder; it is the killing of an innocent person. Even though raging passion may at times drive one to do it, the true soldier, the chivalrous warrior will ever regard such an act as contrary to his special type of honor.13 Besides, the cruelty of civil wars is due to the fact that in this case the adversary takes on the appearance of an actual enemy, without any saving juridical status. For this very reason, however, civil war is not war in the meaning of international law, and the factions involved in civil war are not regarded as belligerent powers. Were they so considered, not war itself but civil war would cease, since two states, and not the citizens of a single state, would then be carrying on a war. In this case the norms of international law would be applied, whereas in a civil war the norms of the state’s penal law tend to be applied. This means, as is well known, that each of the factions more or less formally prejudges the prisoners in accordance with the paragraph of the penal code which deals with high treason or according to martial law.

In like manner, the killing of a slave, which the positive law occasionally does not punish because it fails to prohibit it, proves nothing to the contrary. For in the view of such a legal order a slave is not innocent, since only a person can be innocent. As a thing to be held as property, the slave is subject to the ius fruendi, utendi, et abutendi, i.e., to the right which an owner possesses of full, free, and exclusive use and disposition of his property.14 Nor does the “plank of Carneades” create a real difficulty. For, as has been mentioned, the Late Scholastics rightly pointed out that in this extreme instance the order of justice leaves off and the order of charity governs the case.

What radically distinguishes these natural-law norms in their unchangeableness from the further conclusions is their prohibitive character. They pertain to the prohibitive natural law. When they are fully and precisely formulated, it is impossible to conceive of any situation or circumstance in which they do not bind.

Correct deductive reasoning thereupon yields additional norms; such, for instance, is the rule that what is borrowed must be returned. However, this principle does not apply with the same universality as, for instance, the prohibition against direct killing of an innocent person. For should a weapon be demanded back by the lender because in a fit of rage he is preparing to slay his adversary (inimicus, not hostis) with it, the borrower’s refusal to give it back then and there is justified. That private property must be respected follows from its validity in natural law, which is presupposed in the norm, “Thou shalt not steal.” Yet a person who finds himself in dire need may make use of another’s relatively surplus property to meet the emergency; by the same token the owner is obliged to suffer this action and may not appeal to the principle of self-defense, since it is not a question of an unjust, unwarranted invasion of property.15 Even under the old Germanic law of the Frankish period dire need removed the taint of unlawfulness: a wayfarer might cut wood in a strange forest to repair his cart, or he might allow his cattle to graze in a strange meadow. Moreover, the right of self-defense has been recognized at law since the beginning of the historical period. No fine was exacted for an injury inflicted in self-defense upon an aggressor, for the aggressor was ipso facto a breaker of the peace (exlex, outlaw). But with the progressive development of the positive law, corresponding to the evolution of social conditions, the number of such situations authorizing self-help necessarily grew smaller. The matter underwent a change and with it the application of the natural-law norm, whose validity however remains the same.

From the norm of truthfulness of speech follows the natural-law norm, agreements must be kept. But, as the history of law proves, the correct application of this principle has required a most subtle and careful consideration on the part of reason. It is owing to the discriminating intelligence of wise men that liability for non-fulfillment of a contract arising from malice or negligence is differentiated from the liability which is owing to no fault, which is therefore accidental (such as an “act of God”); accordingly, the two forms of liability are differently dealt with in law.

This example also shows that the farther deductive reasoning descends from first principles and universal norms to particular norms, the more the evidence diminishes; and a keener and more penetrating consideration of all the circumstances is needed for the correct application of the conclusions to facts which become ever more contingent.16 From this, too, the necessity of the positive law becomes evident. Consideration of these circumstances requires in addition a great deal of experience and wisdom. It is not a matter for everybody, but for the wise: not for the young, but for the old. Among all peoples judges and lawmakers are traditionally the wise old men.17

Only in these first, self-evident, and unalterable principles and conclusions, do all peoples agree.18 In the further inferences agreement and unchangeableness cease.19 St. Thomas would never have taught, as did many exponents of natural law in the eighteenth century, that the oath of two witnesses and the jury system (together with a definite number of jurors) pertain to natural law. The natural-law doctrine of the philosophia perennis knew full well that legal reason advances toward true law only slowly, step by step and after following many a wrong path. This, it was clearly aware, is particularly the case in complex social conditions and in view of the uncertainty of judgment which is proper to the practical reason in contrast to the theoretical reason. For the practical reason concerns itself with the contingent element in human actions.20 However necessary and certain the universal norms may be, such necessity and certainty grow fainter and fainter as one passes from the general to the particular and the singular. The more uncertain becomes the judgment of practical reason, the greater also becomes the variety of judgments concerning juridical and moral questions. All this shows the great necessity of deciding such matters by means of positive laws and of adjusting the latter to the individual case.21

In another respect, too, the danger of error where judgments of the practical reason are concerned is greater than in operations of the theoretical reason. The passions, diverse interests, and selfish appetites disturb the judgment. However correct the knowledge of the theoretical reason may be, and however possible it may be for the practical reason to apply this knowledge to conduct in the judgment of conscience, passions and appetites often bring about in the concrete a blotting out of this knowledge and of the natural law which otherwise is discernible by natural reason.22 One should not wish to construct a system of natural law by methods proper to geometry; one must, on the contrary, continually consult experience and comparative law. Hence the existing laws and mores, which cannot be totally and in every respect contrary to reason (what would then be left of man?), form the material of experience from which we recognize what is just through reference to rational nature and through knowledge of the being in the laws. This is not the strict, positivist antithesis to the deductive process, but rather the mean: deduction and induction, analysis and synthesis.23

This healthy skepticism toward the deductive, arrogant, or naively romantic natural-law doctrine of rationalism, which attempted to set up detailed norms deduced from reason and valid for all men and all times, in no way implies, as has already been remarked, the acceptance of positivism. The admitted diversity, which leads the positivists to hold that the positive will of the lawmaker, and not agreement with rational social nature, is the foundation of justice, signifies merely that in respect to the more remote conclusions there can be, so to speak, a natural law with a changing content; but this does not hold good for the most general norms and proximate conclusions. For incest (sexual intercourse between ascendants and descendants) remains contrary to the natural law, even though some primitives, in consequence of a corruption of morals, may consider it lawful.24 Moreover, the natural law does not remain limited to the formal element, in the sense that the principles, “Good or justice is to be done” and “Give to everyone his own,” leave always and exclusively to the positive law the determining of what may here and now be good or just, of what may in the concrete be one’s own, and in the sense that it is the function of the positive law to fill in the empty form with contents. Such has been the position of Neo-Kantian jurisprudence down to Kelsen. On the contrary, the natural law also includes material, content-filled norms.25

‡The proximate cognitive principle of the natural law (as part of the lex naturalis) is the rational, social, essential nature of man,26 i.e., his personal, essential being immanently determined through the concepts of individual and community.27 The rational substance of the person, endowed with free will, is the bearer, the possessor of rights. Animals have no rights.28 And whenever, owing to a failure to recognize the native personality of every human being, the slave’s character as a person is denied to him (by the positive law),29 this is a defect in such positive law but no disproof of the fact that all positive law presupposes persons. The individual person is the logically necessary prerequisite of every, even imaginary, legal order, and all the more so of the positive and actual legal order. For the latter is a normative order, an order of oughtness. But a norm logically presupposes a rational being, possessed of free will, as addressee or subject of the norm. Otherwise a distinction between the laws of physical nature and law based on right would be impossible. Moreover, socio-philosophical materialism, as it has taken concrete shape in Russian Communism, is quite absurd for the simple reason that one can indeed understand the masses in a materialist sense but not the elite which directs the masses. For this elite must assuredly view itself as a union of rational beings, as a collective group of social engineers, if only in order to distinguish the masses as a materialist phenomenon.

The personal being of man exists as a datum prior to all positive law, at least for the formation of the legal community. But this means that it also exists as a datum for the positivist theory of law. For precisely this state of being a person, this state of being an end in oneself, is the first fact, and in it lies the original germ of right. At the beginning, as Jhering has noted, stands not right itself, but one’s right. No European positivist would now maintain that the state of being a person and the rights which flow immediately therefrom (first of all, the right to be regarded even legally as a person) originated through the will of the state. Rather, as Dernburg has said, “the state regulates private rights, but it does not invent them; it safeguards them, but it did not first create them.” Or, like Cosack, positivists speak of subjective rights as being guaranteed (hence not given or “granted”). Prior to the state, then, there exist rights of the person. Yet these rights are not mere facts, to which the state thereupon attaches legal effects, as asserted by the latest form of positivism, the normative school. They appear rather as claims against the positive law, claims that demand recognition. In 1878 the German Imperial High Court of Justice rightly spoke of the natural right which an author has to his name. Here it is really a question of a natural right. For this reason, too, the suum cuique is not simply dependent upon material realization through the positive law. There exists a suum, a right, which comes into existence with us.

This is, in the first place, the right to life and property. Upon this all exponents of natural law, Aristotle and St. Thomas, Hobbes and Rousseau, and even all positivists are in agreement. The conservatio sui ipsius seu membrorum suorum is not peculiar to Hobbes; on it rests the right of self-defense. The latter is grounded in the natural law, and it excludes unlawfulness purely and simply, not merely that which is contrary to the positive law. The integrity of this sphere of personal being, this first circle of right of one’s own individual life, is an absolute presupposition of the legal order. The safeguarding or guaranty of this first suum of the person is exactly what essentially differentiates the legal order from the order of love. Personality, i.e., the state of being a person, is likewise the root of honor, of one’s good name. For what else do honor and good name signify than the radiation of one’s personality into the world of law? They are simply the special form of fellowship under law. Their negation is the negation of fellowship under law, of the basis of social life. They are consequently a presupposition of every positive legal order. The latter does not confer them; it protects them with the power proper to law. This legal good, by the way, is so prepositive that it always obtains recognition even in spite of the positive law, which pays too little heed to injuries inflicted upon a person’s honor.

In the same way, personality carries with it personal liberty, which in the positive legal order finds expression in guaranteed rights to liberty. This holds good for all legal orders, and all natural-law systems recognize it. Such rights also outline the sphere of right that is “given” with the nature of a person. In the course of history, indeed, they may expand or contract. Yet they cannot so contract that all freedom whatever comes to an end. In such a case human personality would cease effectively to exist. The person would then become a means, would existentially vanish and become an impersonal “thing,” an inherent contradiction. Varied as may be the expansions and contractions of the sphere of freedom that are encountered in the history of law, there still exists a real legal difference between the serf (bound to the soil) under the feudal system and the slave of Greco-Roman antiquity.

‡Materially this freedom is closely bound up with the institution of private property. “The conception of property is the direct outcome of the conception of the ego. Just as the expression ‘mine’ and ‘thine’ occur in every language to indicate ownership, so the consciousness of self contains the consciousness of property. … Hence property is no arbitrary idea, but is founded in man’s natural impulse to extend his own personality.” So wrote Heinrich von Treitschke, although shortly beforehand he had observed that without the state and its law “there could be no property or security of property.”30 This is an evident, typically positivist contradiction, unless this last statement is taken to mean merely that the institution of property can in the long run be maintained only if the state protects it, so that for the sake of natural-law ownership itself man was compelled to pass from the status naturalis to the status civilis. According to St. Thomas, “that which is ordered to a man is what is said to be his own.”31 In other words, one’s own is an extension of the ego. Definite things are not of their very nature and forthwith ordered by natural law to this person. On the other hand, it is self-evident that the person has a right to the products created by his labor (with, of course, the proper reservations) and to have these pass into his ownership.32 The institution of private property is of natural law. In the long run man cannot exist, cannot make good his right to marriage or to a family or to security of life, and cannot maintain his sphere of individual right to a life of his own, unless he is entitled to ownership through the acquisition of goods. The right to private property follows from the physical, ontological make-up of the individual person, from the body-spirit nature of man. “With reason, therefore, the common opinion of mankind, little affected by the few dissentients who have maintained the opposite view, has found in the study of nature, and in the law of nature herself, the foundations of the division of property, and has consecrated by the practice of all ages the principle of private ownership, as being pre-eminently in conformity with human nature, and as conducing in the most unmistakable manner to the peace and tranquillity of human life.”33

In ownership lies the guaranty not only of security of the material conditions of existence, but also of the specifically human perfection, greater personal freedom.34 To state the matter negatively, whoever has no property all too easily becomes property, a mere means in the hands of one who possesses a superabundance of property.35 This right of private property, already shown to be suited to the needs of the individual person, follows also from the need of the family. “That right of property, therefore, which has been proved to belong naturally to individual persons must also belong to a man in his capacity of head of a family; nay, such a person must possess this right so much the more clearly in proportion as his position multiplies his duties.

“For it is a most sacred law of nature that a father must provide food and all necessaries for those whom he has begotten; and, similarly, nature dictates that a man’s children, who carry on, as it were, and continue his own personality, should be provided by him with all that is needful to enable them honorably to keep themselves from want and misery in the uncertainties of this mortal life. Now, in no other way can a father effect this except by the ownership of profitable property, which he can transmit to his children by inheritance.”36 The truth of this line of thought is established also by the fact that all social utopias which reject the very institution of private property, as well as Russian Communism with its juridical rejection of private ownership of productive property, tend equally to reject the family as a permanent community.

However, only the legal institutions of private property and inheritance are of natural law. That is to say, the natural law requires only that there be private ownership and the right of inheritance. It does not demand the property and inheritance institutions of feudalism, or of liberalist capitalism, or of a system in which private, corporate, and public forms of ownership exist side by side. These are positive-law determinations which spring from the diversity of peoples and which change with the socioeconomic evolution.37

But individual personality does not exhaust the essential nature of man, even if in itself it may provide the basis of an original sphere of right. Sociality is just as constitutive of the essential nature of man as is his rationality. Sociality, indeed, so pertains to man’s nature that a definition which omits this constitutive element must be considered incomplete. It is therefore nothing superadded; it is equally original. The individual person and the community are ontologically so related to each other that they can have no existence independently of each other. Even though the individual person may always have genuine self-subsistence and hence a unique kind of being, he has at the same time a limited existence that does not yet realize perfectly the idea of man. For man is perfected only in the community. It is essential for him to be a member of enduring communities. “Man comes into existence as fruit of these communities, and only by becoming a member in them does he experience full incarnation. … But because ‘being a member’ denotes uniqueness and differentiation from all others, the individual as person is not submerged but rather expands his personality from a cramping, impoverishing state of isolation and self-sufficiency into the full man. Wherefore all shutting of oneself off from the fullness of life in communities means for the individual a personal atrophy and mutilation, a failure to realize one’s being.”38 In the concrete, of course, a person is always a member of his family, his nationality, his occupational group, his state, and lastly of mankind. The individual, as Max Stirner conceived him,39 simply does not exist.

Moreover, Hugo Grotius and Leibnitz, as well as the entire past in company with the adherents of the Christian natural law, still held fast to the principle that the union of men with God carries with it the union of men among themselves. The ultimate metaphysical principle of the order of communities was thereby strikingly expressed. For it affirms the unity of the ontological and teleological orders that extend from the individual through the communities of persons, which serve to perfect the idea of man and thereby to preserve their super-individual partial ends, on up to God as the supremely perfect Person and the highest End and Good of all creation; and then down again from God to the individual, to whom the communities are prior in the sphere of ends. The necessary communities or societies that are grounded in the nature of man, without which man cannot live, have thus at any given time partial ends of their own which cannot be permanently absorbed by the higher community.40 And throughout them all there remains intact the primordial personal goal of man, his eternal happiness or the salvation of his soul in the beatific vision and in the union of love with God.

This ultimate metaphysical foundation, which enters the domain of theology, does not need to be considered now. As a matter of fact, not only metaphysics but every deeper social and moral science reaches into the realm of theology. But thought can stop short of ultimates and yet grasp the natural-law existence of communities and their orders. For the ontological necessity of, say, the family, nationality, occupational group, and state clearly results from the idea of man, not from the idea of the state. The family and its basis, marriage, are prior to the state. The national community, which is built up through community of blood, language, and culture (national spirit) out of families (basically therefore upon biological being, and not upon the nomos), is also prior to the state, even though it may tend toward the form of statehood and may be on the way to becoming a state. But nation and state do not coincide conceptually: as there is a national state, so there is a non-national or multinational state. Furthermore, inside the national economy and culture the members of the nation are organized according to their professional function into occupational groups, and according to locality into political groups, for the complete achievement of the common good. These necessary societies are always present, at least in rudimentary forms. Their essential characteristic is by no means merely their super-individual goal or their juridical organization, but precisely their necessity derived from the idea and end of man. They are consequently distinguished by their permanence: in the domain of the earthly and temporal they are everlasting societies. Besides these, however, men form numerous other societies for particular purposes. The latter societies belong to history and to it alone, not to the idea of man, whereas the former are the very medium of history.41

The family is prior to the state. The state may never take over entirely the end and functions of the family, even though it may have the duty, in virtue of its right of guardianship, to intervene in case this or that family is delinquent in its own duty.42 It is likewise competent and obligated to re-establish, whenever necessary, the natural foundation of the family in economic life and in legislation through such measures as housing projects, a family wage, tax exemption or alleviation, reform of marriage legislation, protection of parental rights. Such necessity is present whenever a general failure in their essential functions on the part of concrete families is due to a faulty economic or juridicoethical evolution (e.g., in the case of the propertyless, proletarian family of modern capitalist society).43

This essential structure of the family, which exists prior to the state, signifies also that the family is an autonomous sphere of right. Parents, especially the father, have natural rights which the positive law does not confer upon them, but which, as already existent, it protects and guarantees. From the marriage contract spring the natural rights of the husband and wife to each other’s person, so that the breach of such rights (adultery) is accounted unjust in itself and therefore unjust independently of the positive law. Otherwise why should people have waxed indignant at the early marriage legislation of Soviet Russia? The fact of the matter is that the end or meaning of marriage and the family is independent of the will of the state as well as of the will of the parties to the marriage contract.44 Marriage and the family produce rights and duties that are grounded in the very nature of these institutions. The recognition and juridical relevance of these rights and duties, and not the fiat of the state, make it possible to decide whether in a concrete case marriage or concubinage is present.

In the same way, a national community comprising a number of families is a necessary and true society. It is this essential being that gives meaning to the assertion of the natural rights of a nationality, as these rights, in the national state or in the state which includes national minorities, become a concrete problem with regard to language, schools, and national culture. The treaties about minorities did not invent or create this right; it existed before them. No one will question that the betrayal of one’s nationality is a crime. This is true even if no penal code of a state which includes minorities expressly defines the actual case of treason to one’s nationality and threatens it with punishment.

For the application of the principle of suum cuique, there exists inside these communities of family and nation a material suum of the member as well as of the subordinate society in relation to the higher community.

The social process of perfecting the idea of man reaches its fulfillment in the state, which since the time of Aristotle has been termed perfect society, i.e., a society which is genuinely self-sufficient, because in it the natural tendency to live in society finds its completion. The family, even the large patriarchal family or clan, requires a higher social form for secure and permanent existence, for earthly happiness, for genuine self-sufficiency. Political life is a third necessary domain, specifically distinct from household economy. Individuals are not free to unite or not to unite to form a state. On the contrary, the natural moral law imposes such union upon them in conformity with the goal of perfecting their social nature. On this necessity, then, is based the authority of the state and of its head. The suum which the state or the public authority is entitled to demand rests on the realization of the idea of the state as a necessary society. This suum, moreover, is not the sum of the rights which individuals transferred to the state, to the sovereign, in some supposed social and governmental contract. It is a specific suum which is grounded in the essential function of the state, namely, the establishment, maintenance, and promotion of the common good, of the ordo rerum humanarum. All this is more than a mere legal order. It involves the promotion of the welfare of families and individuals in their various spheres of life: economic, occupational, cultural. It is a question of promoting, not of creating. The state as such does not produce culture. This is done by persons in the family as well as in their national and religious communities.45 For this reason, too, the common good is not really separated from the good of the individual members. Rather, a coincidence takes place, just as the health of an organism is indeed predicated of the entire organism, yet consists in the fact that the organs are sound and in good order.46

Nevertheless, though the idea of man is thus perfected in the state, the individual state is not the final form of community. For the nation-states, the nations and their states, form in their totality the international community, mankind as a whole, whose supernatural counterpart is the world Church, the Church of the nations. And in this international community or great society individual rights and rights of the community recur in an analogous sense. As a result, the personified states and nations as values in themselves possess natural rights of their own to their existence, to freedom (i.e., the right to self-determination for the concrete realization of the common good), and to their honor as the basis of their legal partnership in the international community, whose object is order and peace. The tragic conflicts which are inevitably bound up with the rise and decay of individual states and nations as a biological and ethical life-process arise because the positive law exerts itself more vigorously here to uphold permanently the status quo than it does in the individual state. These conflicts must be settled on the basis of justice, on the basis of the common good of the international community. The positive international law also has its foundation in the natural law.47

In view of all this, it is impossible to speak purely and simply either of a primacy of the individual person or of a primacy of the community. For none of these societies is absolute, however much it may have its own end-values in the order of ends and its autonomy in the social process. None of them is in an absolute sense an end-community in which the individual person would be merged and would become a mere means. His eternal goal, the salvation of his soul, imparts to the person an ultimate transcendence.48 Thence result certain natural rights for the individual person in relation to the state. These rights are not first conferred upon him by the positive law; they are at most explicitly recognized by it. Thus it is not in virtue of this recognition that such rights have force; they are recognized because they are valid absolutely.49 They are precisely those rights which at bottom are always presupposed: the rights of the individual person and of the necessary societies, the family and the nation, which exist between the person and the state. Whenever the state demolishes these rights to material justice, it does away with its own juridical being. For justice is the foundation of the state.50

The natural law contains the necessary structural laws of societies. Hence also the close relationship between natural law and social philosophy: natural law is social philosophy for the practical reason. A science of pure law is consequently unsatisfying. For law is at bottom founded on the essentially teleological character of social being, and in practice its concrete contents are always social life which requires the form of law. But this is not to assert that sociologism is alone warranted in law. For the sociological school of law is indeed able to explain the origin and effect of positive legal norms from the actual sociological facts, but it cannot explain law itself. The two schools of thought constitute a positivist cleavage of the natural-law doctrine. Natural law, of course, implies an ultimate unity of essential being and oughtness.

To the natural law corresponds a genuine pluralism, from which the principle of the subsidiarity of the state takes its origin. The natural-law sub-political spheres in which the individual person lives his life (the family, the local community, the nation in its occupational groups) are autonomous partial or imperfect societies with ends of their own. These societies combine organically for the ordering of the common good in the same way as the persons and communities which never lose their proper being are joined together in the organic unity of the state. Such societies are not, consequently, mere genetico-historical rudiments of the state. They are not stages of the social process that gradually wither away. On the contrary, they are enduring institutions, and their specific functions can never by wholly and permanently taken over and fulfilled by the state.51 The opposite view rests upon the inherently false antithesis between individual and state. It either removes social life entirely from the political sphere (liberalism), or it makes all community life a matter of complete state control (Russian Communism, Italian Fascism, German National Socialism).

There exists a true economy of the social virtues. Communities do not live through law, although they do live in the law. They live through specific virtues correlated with their being. The family is the natural nursery of the virtues of obedience, self-sacrifice, loyalty, and mutual responsibility and care. All succoring love, too, is stamped with the family spirit. Economic and occupational life is founded upon the exercise of the virtues of social justice, fidelity to one’s given word, and social solidarity in action. The total emptying or sabotage of the idea of the state which occurred at the hands of individualism rests ultimately upon the individualist belief that the sole source from which the community lives is law, and that its order alone is needed. For the rest, the free individuals, through short-term contracts corresponding to their selfish interests of the moment, would create of themselves and almost automatically the social harmony that is here and now fitting.

No, neither individuals in their selfishness nor a bureaucratic industrial state which hinders the free unfolding of personality and the functioning of imperfect societies can act creatively. Creative action belongs to the person as well as to the national community in its capacity as the imperishable ground and native soil of the state. Yet, since the state regulates and promotes the continuous life of the communities and individuals; since, in accordance with distributive justice, it guides the stream of moral, intellectual and material goods, which constitute the common good and concomitantly the good of its members, back to these members; since it fashions a true human order: dignity, honor, and a high degree of sovereignty belong to the state and must be accorded to it.

Positivism is incapable of a correct view of these things which form the basis of the life of the state. The doctrine of the natural law, on the other hand, can give to the state a true ethical foundation through the morality in law.

CHAPTER XIV

Natural Law and Positive Law

Legal positivism, that is, the theoretical rejection of the natural law according to form (as non-positive source of valid law) and content (as law contained in no positive norm), maintains that the natural-law doctrine represents a dualism which is inimical to legal security; or that for fixed objective norms it substitutes subjective opinions concerning a juridical oughtness; or that in a dualistic fashion valid legal norms are drawn from a system of norms which is set in contrast to the positive law (ethics, law of reason, reform proposals for new legislation, Roman law as written reason). Hence positivism regards the natural law as a non-law in the proper sense of the word. It refers, instead, to ethics, to fabricated ideal norms for new legislation, to politico-legal aims, and so on.

Law, according to positivism, is only positive law, that is, statute law and such customary law as is recognized by the state. More precisely, positivism characterizes as law to be applied by the judge and alone to be considered by jurisprudence those norms only which are enacted as such by the factual and published will of the legislative organ in due conformity with constitutional law or which are explicitly or tacitly admitted by it. The positivist is ever seeking for the written or actually enforced factual decision of the will which converts a potential norm into an actual norm. Moreover, he is concerned solely with this formal origin of law, with the source of the norm and its manner of formation, not with its content. Auctoritas facit legem, law is will. The question of whether something can be wrong in itself is meaningless for him. To him, right and wrong are not material qualities of norms; they merely denote the presence or absence of agreement with the factual will of the lawmaker. ‡In contrast, for instance, to the Roman jurist, the positivist does not search for justice by way of the positive norm in which it is contained materially; he inquires rather for the norm which is derived from the will of the legislator. The establishing of this fact settles for him the question whether a legal norm lies before him. He presumes its justice, or he asserts that the question of justice is an ethical question, not a juridical one.

In constitutional states, however, the typical positivist runs into difficulties. Particularly when it comes to applying the law, he must inquire not only whether the path of legislation prescribed by the constitution has been followed, but also whether the law (including customary law) is not in conflict with the higher norms of constitutional law. And there the legal positivist readily runs afoul of natural law. To the positivist, many constitutional provisions are not genuine legal norms but rather programmatic utterances of the constituent or constitution-making power. Take, for instance, such a constitutional provision as “Property imposes obligations; its use must at the same time be a service of the common weal.” The positivist characterizes this provision as a mere guiding rule, not as a binding norm for either lawmaker or citizen. He insists upon taking such a view even though this provision is aimed directly at the individualist concept of property, and though property and obligation obviously are juridical concepts. Here, in our view, lies the typical positivist short circuit. The positivist, who for that matter does not know what to do with such highly important constitutional preambles, perceives in these cases invasion points for natural law to be applied by the judge. In the United States the judge, by referring to the natural-law foundation of man’s rights to liberty, has set himself not only above the lawmaker but in theory even above the framers of constitutional law. For the real lawmaker is not the one who enacts the laws, but the one who sovereignly expounds them. But the interpreter refers precisely to natural law and justice. This formalist method makes positivism possible even for Catholic thinkers, when they regard ethics and the moral law as norms derived from God’s will. Such norms do not indeed have legal validity, but they do have the moral force of oughtness.

It is generally acknowledged today that positivism is inadequate from the standpoint of both legal theory and legal philosophy. One of its bases, the theory of the completeness of the law or absence of gaps in the law, has been given up. The theory of legal monism has likewise been widely abandoned. For good faith, the principles of morality and the carefulness of the ordinary merchant are often used by the judge as valid norms not only beyond or in addition to the positive law, but even contrary to the positive law. That is, they are used contrary to the factual will of the lawmaker, even if generally on the basis of the unwarranted fiction that the lawmaker could have willed no wrong.

‡To look more closely into the matter, we may note several phenomena as sources of legal positivism. In periods of philosophico-ethical uncertainty and barrenness the jurist, who is of course concerned with the practical settlement of legal questions, rightly holds to the positive law that is sure because it is enforced and applied. This is all the more true when the abstract speculations of rationalism have split into increasingly subjective views of various schools.1 At times when no natural order obtains, but, as in Communist Russia, even the national community is viewed as a social mechanism to be organized along engineering lines, positivism may well be congenial.

The predominance of positivism or of the natural law is likewise connected with types of state or forms of government. Royal absolutism provides in itself a more favorable environment for positivism than do liberal democratic states in which the judge is more or less sovereign. Even forms of government are determined by the antithesis of reason and will, for governmental types are differentiated also by their types of legislation.

But the natural law need not stand diametrically opposed to the positive law, nor has such an opposition always existed in history. Natural law and positivism are, indeed, directly opposed to each other. But natural law and positive law are, as the Christian doctrine of natural law expresses it, directed immediately to each other. The natural law calls imperatively for specification by positive enactments, even though it is at the same time the measure and guideline of the positive law. It requires the positive law; or, as the Christian tradition affirms in an apt distinction, it requires human law, i.e., enactment by earthly authority. In this question of the relationship between natural law and positive law the schools of natural law differ as much as they do over principles. For the Sophists as well as for Rousseau’s individualist natural law the positive law was the direct opposite of the law of nature. The positive law, since it served to secure the interests of the ruling class, was even materially opposed to the natural law. The democratic revolution was the first to make its natural law the exclusive law. The natural law of rationalism believed that, from principles that varied from time to time, a materially complete system of law could be deduced, which thereupon needed but the formal legal decree to become also positive law.

The natural law of the philosophia perennis, on the other hand, contains but a few universal norms and forgoes deductive extremes. It states explicitly that in the normative sciences certainty and necessity decrease in proportion as deduction moves farther away from the first self-evident principles. It has so strong a feeling for the great blessing of a secure and reliable legal order, which it considers a most essential element of the common good, that it regards as non-binding only that positive law which has been changed into non-law by the prohibitive norms of the natural law. Of course, it accords the permissive natural law and equity their proper place. It is revolutionary only in respect to the law that has become materially immoral. Its attitude toward the imperfections of the positive law is merely reformist. It may with some exaggeration be called a skeleton law. It determines what positive arrangements, in themselves capable of being willed in given historical circumstances, can be right. Thus it does not affirm that private ownership of capital is wrong, or that the attainment of just wage claims by means of a strike (break of contract) is wrong when state protection of labor is lacking. Nor does it assert that dictatorship is intrinsically wrong, since dictatorship becomes wrong only through the misuse of the dictatorial power that for the time being is historically necessary, just as it does not pronounce parliamentary democracy to be inherently wrong. Nor, finally, does it declare every war unjust. Yet it does say that, where no fault of the owner exists, complete expropriation without compensation is unjust. It does declare that the general strike for the illegitimate achievement of the rule of the proletariat is wrong. And it does say that disregard of the natural rights to life and to the necessary liberties of the person is wrong, irrespective of by whom and under what circumstances they are infringed.

The natural law calls both for the positive law and for the lawmaker. To begin with, only the first principles and proximate conclusions (Decalogue) are immediately evident and epistemologically necessary. The theoretical reason proceeds from the particular, which is given in sense perception, to the general. Therefore its knowledge bears the stamp of certainty and necessity far more than does that of the practical reason. The practical reason proceeds from the general principle to the singular, to the contingent, to the multiplicity of possible means and intermediate ends in a world which is incessantly changing in virtue of the actions of others and one’s own development, although the higher end, e.g., the common good, remains ever the same. Consequently the more the practical reason descends from the principles to the further conclusions and comes to apply them to increasingly more concrete situations of fact, its knowledge becomes more uncertain, variable, and questionable in application.2 St. Thomas rightly observes that “to suitably introduce justice into business transactions and personal relations is more laborious and difficult to understand than the remedies in which consists the whole art of medicine.”3 Owing to this very uncertainty, men stand in great need of the positive norm which derives and determines what is to be inferred from the general principle, regard being had for the national character and the concrete historical situation. Without such a positive norm no certainty and no order at all could arise in view of the number and diversity of the deductions. Above all, everyone who has not succumbed to rationalism and does not regard men as purely thinking and inferring beings knows how great a danger reason runs of being misled by passions when it comes to applying norms to one’s own as well as to opposing interests. He also knows how easily the voice of conscience is drowned out by the tempestuous demands of selfishness. An authoritative determination of the conclusions is plainly needed in order that these, as norms which emanate from authority and demand obedience, may be able to support conscience and reason.

For the same reasons the natural law as well as what is derived from it requires also a positive, earthly sanction, which it does not of itself immediately possess. Indirectly, of course, it does have a sanction. Every people that disregards the laws of moral living is doomed to deterioration and to destruction. Justice remains the foundation of the state, and world history continues to be world judgment. Yet an immediate sanction is needed, a direct threat of force. The menace to order is inherent in the imperfection of all that is human, in the disordered vital impulse and immoderate instinctive drives of individuals and their groups and communities.4 The propensity to disorder which is found in man and his associations is just as strong as, nay even stronger than, the rational longing for ordo. All this calls for a positive ordering and safeguarding of human existence and welfare at the hands of a concrete power. The philosophia perennis does not subscribe to the unfounded optimism of Rousseau’s idea of natural law. It is aware of the demonic element in man’s nature, of the dark forces which produce disorder and destruction. Even though, for example, the natural law forbids theft, there is need of the positive penal law which attaches the penalty as a legal consequence to the actual fact of theft. Justice determines what this penalty is in the light of the principle of proportionateness; and prudence aids in its determination by drawing upon the principle of suitableness of means to the end and upon the requirements of education. For punishment is not an end in itself: its object is requital (iustitia vindicativa) as well as deterrence and education.5

The special form of the virtue of prudence for the lawmaker consists not only herein, but also in deriving the positive norm from the principles with due regard for concrete circumstances. St. Thomas, it will be recalled, repeatedly mentions the function of circumstances in determining the reasonableness of a law. “The execution of justice, in so far as it is directed to the common good, which is part of the kingly office, needs the guidance of prudence. Hence these two virtues—prudence and justice—belong most properly to a king,” i.e., in his principal function of lawmaking.6 For prudence combines the knowledge of general principles with the knowledge of particulars which are the matter of action, since it governs the right choice of means for attaining the end.7 The prudence of the lawmaker is the most perfect species of prudence, and it is compared to the prudence of subjects as mastercraft to handicraft.8

It is thus sufficiently established that all positive laws should in some way be derivations from the natural law or determinations of it. But this does not mean that every positive law which is not a correct derivation or determination of the natural law is therefore not binding and is devoid of obligation. Only those positive laws are purely and simply non-obligatory which command one to do something that in itself is immoral and unjust. To this category belong laws that are at variance with the prohibitive precepts of the natural law. There is nothing revolutionary about this; it is something self-evident. Scarcely anybody will regard as right a law which allows assassination, adultery, or perjury. Few will call the early Christians contemners of law because they refused obedience to the pagan laws which prescribed sacrifices to idols.

On the other hand, an unjust law (e.g., a tax law which is in conflict with the principle of justice and proportionateness) is not solely on that account devoid of obligation. An unjust law is not forthwith an immoral law in the strict sense, that is, a law which prescribes a sinful action. In cases of this kind the maintenance of even an imperfect ordo takes precedence over resistance to a particular unjust law. The natural law is, of course, a norm for the lawmaker. Such a view has been held by nearly all philosophers of law, including the founders of the modern theory of sovereignty, Bodin and for a time even Hobbes. Yet a positive law which is certainly unjust but does not contradict the natural law in its prohibitive norms does not give to judges and other public officials, whom the constitution obliges to apply and execute the law, or to the subjects of the law a right to consider the law non-binding and invalid. Even a tax law which agrees neither with distributive justice nor, say, with the principle of expenditure in the general interest does not justify a person in defrauding the revenue. The natural-law principles of obedience and truthfulness here again take precedence. The proper remedy is not disobedience but use of the means provided by the constitution. Since, however, the prohibitive precepts of the natural law have precisely the function of protecting the social order in its deepest foundation, a positive law that commands something which is in itself unjust and immoral must be regarded as non-law.9 When little or no respect any longer exists for any authority; when marriage generally ceases to be differentiated from concubinage and promiscuity; when the honor of one’s fellow citizen is no longer respected and oaths no longer have force, then the possibility of social living, of order in human affairs, vanishes altogether.

So far as the other norms of the natural law (ius naturale permissivum vel praecipiens) are concerned, the positive law is free in its efforts to give effect to these precepts. For in this case questions of national character, suitableness of means, circumstances, and forms of government are decisive. Here, in other words, the prudence of the lawmaker is the decisive factor. This prudent reserve of the traditional natural law (ius naturale perenne) also implies that there are no points of irreconcilable opposition between the natural law and the historical school of law: the two can and should complement each other.

Some examples may serve to illustrate this. The institution of private property is at the very least in accordance with the natural law. But this does not mean that severe restrictions on the use of property, or even expropriations for reasons of general welfare, are absolutely contrary to the natural law. Nor does it mean that the Roman law idea of property or the feudalist or capitalist systems of ownership pertain to the natural law. It involves merely the directive to the lawmaker to fashion the actual order of ownership in such a way that property may here and now be qualified to perform (for the individual person, for the family in general, and for most of the members of the nation) its natural-law social function in keeping with the national character and the stage of economic development. The property system of private capitalism with its unrestrained freedom of ownership, with its mobilization of all real property, with its tendency toward giant corporations and trusts, and with its division of each people into a relatively few “haves” and a great many “have-nots,” has been for a long time in no position to perform this function. Taking their stand on the natural law, and often enough in prophetic loneliness, Catholic social reformers since Bishop von Ketteler (1811–77), and even since the romantic movement, have been making this clear in their struggle against economic liberalism. They have also been at pains to point out that the liberty of the propertyless is largely a fiction. To save the family they have demonstrated its right to property as a material substratum of its biological and moral existence. Furthermore, it was owing to its individualism that the Roman people fashioned its positive institutions of property along individualist lines. It was in accordance with the corporative spirit of the German people, however, to fashion in Germanic law a substantially different system of property, one which imposed heavy obligations upon owners, and included specific forms of joint ownership (e.g., in the apportionment of the returns of property among many joint claimants), and especially to treat personal and real property according to separate forms. Hence Bishop von Ketteler, the adherent of natural law, in his proposals for social reform significantly called for the restoration of Germanic law. The positive institutions of property do not have the character of something holy. On the contrary, the common good requires of the lawmaker that he prudently introduce changes into the system of property and adapt it to new economic conditions. A complex commercial and industrial economy obviously calls for a different system of property than is required by a simple natural economy.

The rationalist school of natural law had inferred from its own view of natural law that either absolute monarchy or pure democracy, according to the preferences of the writers and the supposed needs or trends of the times, is alone authorized by natural law. The older natural-law doctrine had never advocated sharply defined ideal governments of this sort. Its ideal government was the system of mixed government, which in any event included the participation of the people.10 St. Thomas holds that the constitution must be suited to the character of the people and to its moral vigor. ‡An earnest, moderate, and responsible people which cherishes the general welfare may with full right govern itself through republican institutions and freely elected officials.11 Here indeed the natural-law principle, salus populi (taken concretely in the sense of an individual people in its historical peculiarity) suprema lex,12 is valid, and not the positivist axiom which declares that the will of the prince is the supreme law. Thus the Christian natural law has never indulged in the mania for deduction which characterized rationalism. On the contrary, it has been able to take into account the peculiarity of individual peoples and their legal genius, the course of their historical development, and their economic evolution. For only the eternal structural laws of the social life of man as such are of natural law, not the concrete architectural form. The stylistic variation of the art-forms of individual peoples is no disproof of the eternal laws of beauty in art.

The natural law calls, then, for the positive law. This explains why the natural law, though it is the enduring basis and norm of the positive law, progressively withdraws, as it were, behind the curtain of the positive law as the latter achieves a continually greater perfection. This is also why the natural law reappears whenever the positive law is transformed into objective injustice through the evolution and play of vital forces and the functional changes of communities.

For the same reason the practical jurist is generally satisfied with the theory and exclusive application of the positive law. “Our quarrel does not turn on the thing, but on a word: on the meaning in which we use the word ‘law.’ We term law only the positive norm which emanates from the will of the state. What you call natural law we consider ethics, the moral foundations of law which we also acknowledge” (H. Ermann). Natural law is viewed simply as non-applicable law, as devoid of force in the legal sense. But such a view is altogether inadequate. In the first place, it mistakenly presupposes the completeness of (the lack of gaps in) the positive law. Next, it does not square with all legal systems. It stems rather from a politico-legal conviction that, since the judge is bound to apply the positive law, he should not meddle with the function of the legislator whose express duty it is to realize justice. In states where judicial supremacy prevails (in ancient Rome, in medieval German law, in countries of the Anglo-Saxon common law)13 the judges’ ruling is directly creative of law. Certainly these judges appealed and still appeal precisely to the natural law or natural justice. Finally, as has already been indicated, even the positive law frequently refers to the natural law, especially under the form of equity.

‡It seems that, with regard to the matter of validity, two things have to be distinguished: the validity of law which is related to the order of mere existence (practical and historical factuality) and the validity of law which is related to the order of essence (the metaphysical order). The positive law has validity to the extent that it is promulgated by the duly constituted lawmaker as his factual will. The natural law has validity independently of its embodiment in a factual volitional act. It is thereby valid at least for the lawmaker. Whether and to what extent it binds the judge or has validity for him is more a question of the constitution of the state: it depends rather upon the public-law principle of the division of powers. According to this principle the judge, i.e., the judicial power, has only to apply the laws or the law of the land. Yet it would be decidedly narrow and illogical to exclude natural law from the laws, and to contend that only such laws are meant as are duly enacted in conformity with the formal legislative procedure established by the constitution without any regard to matter and content, to what is intrinsically just or unjust, i.e., without regard to the natural law. Under constitutional government bulwarked by a bill of rights there exists indeed a strong presumption of law and of right that all laws enacted in keeping with constitutional procedure are not out of harmony with the natural law. It is from this assumption that such laws derive not only their factual enforceability but also their ultimate validity before conscience. Nevertheless this presumption is precisely what it means, a practical device which in particular circumstances does not exclude the duty of the judge to invalidate or not to apply a certain positive law which is clearly at variance with the natural law. In any event the prohibitive precepts of the natural law bind even the judge.14

Under constitutional, free government with the added safeguard of a bill of rights there thus exists a strong presumption that the positive law is a determination and derivation of the natural law. For this reason and also because of the consequent de facto legal peace, which enables and permits men to accept without further scrutiny the order of positive law, the idea of natural law remains as it were latent. But it makes itself felt whenever the positive law, in itself or in the eyes of a large number of people, appears to be in conflict with the natural law. Then the primordial rights of the person, the family, and the national group stand forth with elemental force against the power of the state, which develops into tyranny by denying the foundations of political community, its own moral root: the natural law. But this is juridically permissible and can meet with ethical approval only if the natural law is real, valid law; otherwise such disobedience toward the positive law could not be approved of. If the old distinction between unlawful sedition and justifiable resistance to the power of the state (i.e., revolution)—a distinction which played such a vital role in medieval legal thought in the form of the common subjection of people and ruler to the law15 —has progressively disappeared in the modern age, this is due to several factors. First, the people take an increasingly greater part in the development of the positive law, in lawmaking as well as in administering and applying the law. Thus is produced a greater unity of law with the spirit of the people. Secondly, interpretation of the written law in accordance with justice and equity is achieved through the ethos of the true judge. Lastly, the world of positive law has been progressively penetrated by the principles and prestige of Christian ethics.16

CHAPTER XV

Conclusion

Modern totalitarianism with its depersonalization of man, with its debasement of man to the position of a particle of an amorphous mass which is molded and remolded in accordance with the shifting policy of the “Leader,” is of its very nature extremely voluntaristic. Voluntas facit legem: law is will. How seldom the theorists and practitioners of totalitarianism mention reason, and how frequently they glory in the triumph of the will! The will of the Leader or of the Commissar is not bound by or responsible to an objective body of moral values or an objective standard of morality revealed in the order of being and in human nature. The will is not bound by the objective, conventional meaning of words or by the relation of these to ideas and things. Ideas, as well as the words which express them, are mere tools for the will: they are to be remolded whenever this is expedient. Accordingly an appeal from decisions of this will to natural law, to intrinsic right, to justice and equity, to ideas, must appear as “treason” which stems from democratic decadence or from bourgeois prejudices. The defense against totalitarianism cannot plead greater efficiency, more economic productivity, which are the categories in which the totalitarian “social engineer” thinks. Such a defense must appeal to justice, to the rule of reason; it must plead in the name of the natural law and of the natural rights of human persons and their free associations. Natural law is not only an ideal for the positive law, for legislation to realize; it is also a critical norm for the existing positive law.

Natural law, however, is essentially a framework law, a skeleton law. It does not ordinarily give us a concrete norm directly applicable to action here and now in the involved situations of actual life. It does not, for instance, tell us which of the many possible forms of laws about property is right in the abstract. Neither the capitalistic nor the feudal system of property is imposed by the natural law. But it judges each and every existing system of property in terms of justice. Moreover, natural law does not condemn the wage contract as such or the socioeconomic order of which the wage contract is so important a part, but it makes clear that a social order in which the so-called iron law of wages rules the labor market violates justice and equity. Further, natural law does not proclaim that democracy as a form of government is the sole admissible mode of political organization; yet it does tell us that any form of government, even one that is decked out in the trappings of democracy, which does not recognize the fundamental rights of the person and of the family is tyrannical and may, therefore, rightly be resisted. Natural law, finally, does not say that the Security Council of the United Nations is, in its concrete form, good and efficient; but it does forbid the independence of a small nation to be sacrificed out of mere expediency for the sake of the “security” of a great power. This quality of the unvarying natural law, which elevates it above the changing historical positive law, which makes it both the ideal for lawmakers and the critical norm for existing laws, renders it possible for the natural law to govern the acquisition and exercise of political power itself.

Politics is and remains a part of the moral universe. For it is inexcusable to view politics merely as the technique or art of achieving and retaining social power for some selfish end through the skillful exploitation of human weaknesses, by deceit or by terrorist methods. Politics is rather the great architectonic art by which men build the institutions and protective forms of their individual and communal life for a more perfect realization of the good life. Its main function is to establish an order and unity of cooperation among free persons and free associations of persons in such a way that these, while they freely pursue their individual and group interests, are nevertheless so coordinated that they realize at the same time the common good under the rule of law. But the rule of law is the natural law which justifies the use of political power and before which power itself as well as resistance to arbitrary acts of those in authority must establish its legitimacy: through the natural law alone can we solve the crucial political problem of the legitimacy of power and the duty of free persons to obey. Thus the rule of law, the paramount law binding both the ruler and the ruled, necessarily implies the idea of natural law as the critical norm for the existing positive legal order and for the demand to change it, if it has become unjust. The hope of a peaceful change of the legal status quo within each nation as well as in the community of nations depends on the acceptance of such a higher law that measures both the legal rights of the status quo and the claims of those who would alter it; and it measures them because it is based on natural reason, in which all men participate. For the natural law, ultimately of divine origin but revealed in the very order of being, is but the rule of reason founded upon the rational and social nature of man. Veritas facit legem: law is truth.

“All men are born natural-law jurists.” This fact, which Bergbohm notes at the beginning of his great attack on the natural law, should surely have shown an unbiased person that the very essence of man as a moral, social being points to the nature of law. For all men are born natural-law jurists because in the human soul lies the ineradicable demand that the law must live in morality. All law must be just: only then can it obtain that power which primarily holds together and continually renews every community, and in particular every political community, the power to bind in conscience. But the proper function of the natural-law doctrine is precisely to show forth the connection between morality and law. Consequently it must, for the sake of the very existence of man and his concrete legally ordered communities, ever recur, and it does in fact always return whenever the genius of law seeks out its own foundations.

The foundation of law is justice. “Truth grants or refuses the highest crown to the products of positive legislation, and they draw from truth their true moral force” (Franz Brentano). But truth is conformity with reality. And just as the real and the true are one, so too the true and the just are ultimately one. Veritas facit legem. And in this profound sense of the unity of truth and justice the words, “And the truth shall make you free,”1 are applicable to the community of men under law. True freedom consists in being bound by justice.2

[1.]In his otherwise valuable study, The Revival of Natural Law Concepts, Charles G. Haines resolutely forgoes dealing “with the philosophical and psychological processes which underlie natural law thinking” (p. viii). Yet this self-imposed limitation, psychologically very difficult if not impossible of observance, does not prevent the author from freely criticizing and evaluating the natural-law doctrine in its various forms—which only an epistemology and a metaphysics would rightly allow him to do. E.g., the exposition of natural law by Viktor Cathrein, S.J., is unjustly but altogether typically taxed with being religious and supernatural (pp. 286 f.). This merely means, of course, that the thinking of the Jesuit moral philosopher is theistic and not utterly secularist, does not view nature as a self-subsisting, closed whole, and does not eschew ultimates so far as they are attainable by the natural powers of the human mind. Benjamin F. Wright, Jr., is similarly unphilosophical-minded. He concludes his volume, American Interpretations of Natural Law, with the words: “Natural law, in its essence, is the attempt to solve the insolvable” (p. 345). But such a conclusion stands or falls with its particular frame of reference, characterized by metaphysicophobia.

[2.]It is amazing how frequently this fundamental proposition of Aristotelian and scholastic epistemology, nihil est in intellectu quod prius non fuerit in sensu, is described as John Locke’s contribution to psychology. Locke’s sole claim to fame on this point is to have emphasized this axiom against Descartes’ doctrine of innate ideas.

[3.]I.e., not primary substances in the Platonic sense. See, e.g., K. F. Reinhardt, op. cit., p. 43.

[4.]St. Thomas, Quaestiones duodecim quodlibetales, VII, art. 2. Cf. also Joseph Pieper, Die Wirklichkeit und das Gute (Leipzig: Jakob Hegner, 1935), pp. 31 ff.

[5.]Cf. St. Thomas, Summa theologica, Ia, q.5, a.1.

[6.]See in particular Gustaf J. Gustafson, S.S., The Theory of Natural Appetency in the Philosophy of St. Thomas, pp. 68–90, and, for an excellent psychological analysis of appetency on the sensuous and rational levels, Celestine N. Bittle, O.F.M. Cap., The Whole Man, pp. 242–46, 354–59.

[7.]A brief but clear treatment of the important concept of God’s eternal glory, fundamental and formal, as the end or purpose of the created universe (so frequently misunderstood) will be found in John F. McCormick, S.J., Scholastic Metaphysics. Part II, Natural Theology (Chicago: Loyola University Press, 1931), pp. 201–05; Ignatius W. Cox, S.J., Liberty—Its Use and Abuse (2 vols., New York: Fordham University Press, 1936–37), I, 9–11.

[1.]“It is at this juncture then that moral philosophy assumes its specific role, linking action to being, doing to thinking, ethics to metaphysics, and posing the all-important question as to how rational animals can guide themselves to their proper ends. And if … all activities, including all human acts, flow from the natures of created beings, then it is the order of being and reality which establishes an unshakable norm for the order of action or the moral order. And it is that same order of reality which exacts sanction and retribution whenever its laws are violated in the sphere of human action.

“This primacy of the laws of being and reality over the rules of action or conduct extends to every kind of human activity: it applies to individuals and groups, to the spheres of law, politics, and economics, to national and international life. In every field of human behavior and endeavor the ontological order or the order of being sets the rules and norms for the practical or moral order. The nature of a thing (its being) determines the modes of its activity, and the supreme categories of being … retain their validity in the sphere of action” (K. F. Reinhardt, op. cit., p. 109). That is, action or operation necessarily follows being (operari sequitur esse): all beings act in accordance with their specific natures.

[2.]In other words, man’s basic and prime duty is to become (in fact, actually, fully, completely) what he is (in idea, potentially, germinally, essentially) through the consistent and persistent use of his reason and free will in the light and direction of his natural inclinations.

[3.]The primary norm of the natural moral law, “Do good and avoid evil” (i.e., act for your rational end in conformity with your total nature), must be understood and applied in the light of human nature adequately considered, i.e., in terms of man’s individual and social constitution, ends, and essential relations. Indeed this intrinsic finality of human nature is the proximate criterion for determining effectively not only the good or perfection proper to individual men but also the common good of humanity as such. Now the finality of human nature necessarily expresses itself in man’s natural inclinations or tendencies in which reason discerns the proper ends of all human acts. But these natural inclinations are themselves essentially bound up with man’s natural faculties and their proper objects or ends. Hence the natural law generally obliges man to order each of his faculties, in each of their operations, in conformity not merely with the finality of the unitary whole which is man or of the common good, but also with the intrinsic finalities of the single faculties themselves according to the hierarchy of values discoverable by reason. As St. Thomas puts the matter, “it is good for everything that it obtain its end: and its evil is that it turn from its end. This applies to the parts as well as to the whole: so that man’s every part, even as his every act, should attain to its due end” (Summa contra Gentiles, Bk. III, chap. 122). Natural morality, based on intrinsic finality in the first place, consequently demands that no single faculty or operative power of man be used except in consonance with its finalization adequately understood. That is, the natural law prescribes not only the end or ends to be achieved by man as his good but also the specific means thereto, i.e., the proper exercise of his faculties. For reason constrains us to view in the hierarchically ordered faculties of man and their proper exercise, adequately considered, the means judged best by the Author of both the finality and the law for the attainment of His purposes in regard to man. Hence the moral law per se forbids the perverse use of a human faculty, i.e., a use of the faculty plus the positive frustration of its direct and necessary effect or, again, a use which involves the positive and direct frustration of the very good to which the faculty is intrinsically ordained. This is so because the ends or objects of the natural inclinations or appetites to which the faculties are related constitute the primary criterion of man’s moral judgments. This criterion, however, is not applicable in all cases with the same ease and accuracy, nor is it the sole criterion of moral good and evil; it is of the greatest service in connection with the most fundamental problems of ethics. Nevertheless, as man may, for sufficient reasons, completely subordinate the intrinsic finality of an animal organism or faculty to his own good (e.g., in scientific experiments or artificial breeding) without being guilty of really abusing or frustrating the animal’s nature viewed adequately, so, too, a person may, for proportionately serious reasons and within reasonable limits, in any way utilize, exercise, or sacrifice, without incurring the note of real abuse or frustration, a lower human faculty or organ for the good of the individual as a whole or of another person. For every faculty in man “has its own end or object, but is subordinate to the wider faculty which contains it and to the whole organism, since the end of the whole organism includes the end of each part” (Michael Cronin, The Science of Ethics, I, 138). But it would be utterly contrary to the order of man’s rational and social nature itself for a person directly to frustrate in their very use the intrinsic good of his rational faculties and especially those faculties whose end or function is primarily social and directed to the common good (speech and sex), even at behest of the public authorities; yet induced temporary suspension of a rational faculty for a sufficient reason would not constitute frustration. In certain instances, moreover, faculties appear to be used outside rather than against their proper finalization, inasmuch as no loss of a good seems to be involved in such use. Cf. St. Thomas, loc. cit.; Michael Cronin, op. cit., I, 127–74; John A. Ryan, The Norm of Morality Defined and Applied to Particular Actions (Washington, D.C., 1944); especially James B. Sullivan, O.M.I., The Principle of Finality and the Problem of Contraception, unpublished dissertation of the University of Ottawa (1943), chapter 3.

[4.]Cf. St. Thomas, Summa theologica, Ia IIae, q.93, a.1. As St. Thomas likewise observes (ibid., q.93, a.5 ad 1), “the impression of an inward active principle is to natural things what the promulgation of law is to men; because law, by being promulgated, imprints on man a directive principle of human action.”

[5.]Reply to Faustus the Manichaean, XXII, 27 (trans. R. Stothert). Elsewhere St. Augustine more loosely states that the eternal law “ea est qua iustum est ut omnia sint ordinatissima.” De libero arbitrio, I, vi, 15.

[6.]St. Thomas, op. cit., Ia IIae, q.91, a.2.

[7.]“No theistic and teleological system of philosophy that acknowledges an intelligent supreme Being can omit the concept of a supreme and eternal law” (Hans Meyer, The Philosophy of St. Thomas Aquinas, p. 463). Man’s general obligation, then, is to live according to right order adequately considered. The natural law does not merely command us to avoid whatever may harm ourselves, our fellows, or society; it commands us rather to observe the natural order of things, imposed upon us by the Author of nature as means to the end, lest such harm ensue. Indeed, we are not bound by the natural law to attain certain ends so much as we are bound by it to observe the order of nature as the means to their attainment. Since, therefore, it is not so much the immediate and proximate duty of man to attain the various ends of his nature as it is to observe the order itself which has been established for the sake of such ends, a person may not consider himself no longer bound to observe the natural order simply because some end is in a given case accidentally unattainable. God does not, by means of the natural law, impose obligations upon human nature through the individuals who share in it; He rather imposes obligations upon individual men through their human nature itself. Take, for example, the case of fornication on the part of a man or woman who has been sterilized, or the case of two parties who solemnly and sincerely bind themselves to take good care of any offspring that may result from their illicit relations. Does the natural-law prohibition of fornication lose its force or become unmeaning in the premises? Not at all. The natural law does not merely enjoin the due multiplication of men upon earth and the proper education of offspring; it rather obliges men to observe the order of rational nature, namely, the orderly and controlled satisfaction of their sex cravings in the marriage union alone, which has been instituted precisely for the attainment of these important ends. Hence any violation of that order viewed adequately, no matter what the results may be, is already an infringement of the natural law, a sin against the end of nature to which man is intrinsically ordered. And a substantial violation of the essential order of things constitutes a serious infringement of the natural law, a grave sin—which occurs in all extramarital use of the sex function as well as in certain marital abuses, for complete and unconditional restriction of human sexual activity to natural use in lawful wedlock is, especially but not solely in view of the disastrous operation of the wedge principle in sexual matters, absolutely required for individual and social well-being. Yet it must be frankly admitted that it is far from easy always to discriminate in the light of reason alone, in a very complex situation or very complicated set of circumstances, between what the natural order of things strictly requires, what the natural law precisely forbids, and what it permits as a genuine aid or supplement to nature itself adequately considered, i.e., in its constitution, end, and essential relationships. In such cases even the most intelligent, upright, and balanced moralists can and do disagree. Certain borderline cases have defied, and perhaps will continue to defy, clear and certain rational solution.

[8.]Or, in the clear words of Hans Meyer (The Philosophy of St. Thomas Aquinas, p. 466), the natural law is “the complexus of all those prescriptions which flow from human nature, which are directed to the fulfillment of man’s ultimate end, which are known by the light of reason, and which appear in the consciousness of man armed with a claim to absolute obedience.” According to Jacques Maritain, “natural law is the ensemble of things to do and not to do which follow” from the principle that we must do good and avoid evil “in necessary fashion, and from the simple fact that man is man, nothing else being taken into account” (The Rights of Man and Natural Law, p. 63). Natural law, says J. P. Steffes, comprises “all those binding norms which are valid for the whole of mankind on the basis of nature itself and not just in consequence of the authoritative expression of some will or other, which may however be added to finished nature, whether on the part of God or man” (“Das Naturrecht im Rahmen einer Religionsphilosophischen Weltbetrachtung,” Philosophia Perennis, II, 1020). The essence of the natural moral law consists in three elements taken in some way collectively: man’s natural inclinations, the light of reason with which he is endowed, and the resultant dictate or proposition of reason; more precisely, however, it consists in the third element, the dictate of practical reason. “Like all other animals, man has natural inclinations; unlike all others he has the faculty of reason which recognizes these natural inclinations naturally; and the result of these two is a natural dictate or command of reason. … Separately the inclinations of man or the light of reason do not at all answer to the description of law; separately the dictate of reason does not answer to the qualifications of the natural, for it is not born in us. With the three elements taken together all difficulties about the Natural Moral Law vanish. This dictate is natural, necessary as flowing immediately and inevitably from the two preceding elements, dependent upon them.” (Walter Farrell, O.P., A Companion to the Summa, II, 379 f.). Cf. also: The Natural Moral Law According to St. Thomas and Suarez, pp. 82 ff.

[9.]Viktor Cathrein, S.J., op. cit., I, 344 f.

[1.]The very Hebrew idiom for denoting sexual intercourse, “to know a woman,” lends color to this view.

[2.]Aristotle, Metaphysica, K. 4, 1061b 26–32 (trans. W. D. Ross).

[1.]“The story of the spectral analysis of the law of nature into the prismatic colours of ‘natural rights’ is a long one. The chief influence was undoubtedly the Christian religion” (J. H. Muirhead, “Rights,” Encyclopaedia of Religion and Ethics, edited by James Hastings [12 vols. and Index, New York: Charles Scribner’s Sons, 1924–27] X, 771). Moreover, as Francis P. LeBuffe, S.J., and James V. Hayes explain, “all rights come from law and they come from law because it places a duty on the subject. But the fundamental law from which all other laws derive their force and efficacy is the Natural Law. Now the Lawgiver of the Natural Law is God, who has the right man’s obedience. Immediately consequent upon this right of God is duty in man. Hence, prior to every right in a man is his duty, general or particular, and prior to every duty is God’s right to the ultimate purpose of creation and to the submission and service of mankind” (Jurisprudence, p. 136). Accordingly, man’s primary right is the right to do his duty, i.e., to achieve his end, to perfect himself, to realize his essential nature, and thus to attain true happiness, his subjective end, in this life and in the next.

[2.]Summa theologica, Ia IIae, q. 90, a.1.

[3.]For men “an action is natural only in so far as it harmonizes with the law of reason. This agreement with reason is not only the mark of naturalness, of humanity, it is the stamp of virtue; our actions are virtuous or good exactly in so far as they harmonize with the commands of reason, or, in other words, precisely in so far as they follow the directions of reason and move towards the goal of man” (Walter Farrell, O.P., A Companion to the Summa, II, 382).

[4.]St. Thomas, op. cit., Ia IIae, q.90, a.1.

[5.]Ibid., a.4.

[6.]“The first principle in practical matters, which are the object of the practical reason, is the last end: and the last end of human life is happiness or beatitude” (ibid., a.2). Cf. ibid., q.1, a.6; q.2, a.7; q.3, a.1; q.69, a.1. What man’s last end or happiness does and does not consist in, how far and in what way it is attainable in the present life, and how we are to conceive the final and perfect happiness of the next life, St. Thomas deals with, ibid., q.2–5; Summa contra Gentiles, Bk. III, chaps. 1–63.

[7.]Cf. Summa theologica, Ia IIae, q.90, a.2.

[8.]Law is “an ordinance of reason for the common good, promulgated by him who has the care of the community” (ibid., a.4).

[9.]“Reason has its power of moving from the will … ; for it is due to the fact that one wills the end, that the reason issues its commands as regards things ordained to the end. But in order that the volition of what is commanded may have the nature of law, it needs to be in accord with some rule of reason. And in this sense is to be understood the saying that the will of the sovereign has the force of law; or otherwise the sovereign’s will would savor of lawlessness rather than of law” (ibid., a.1 ad 3). “Command is an act of the reason, presupposing an act of the will, in virtue of which the reason, by its command, moves to the execution of the act” (ibid., q.17, a.1); see also the commentary of Cardinal Cajetan upon this article of the Summa theologica. The way the intellect and will mutually react and interact at all stages of conceiving, formulating, issuing, and executing a command is convincingly depicted by Walter Farrell, O.P., A Companion to the Summa, II, 49–62.

[10.]Cf. St. Thomas, Summa theologica, Ia IIae, q.92, a.1.

[11.]Yet it must be insisted that the obligation of the natural law does not depend for its efficacy on a knowledge either of God as legislator or of the divine will. For in the impossible hypothesis that God might not will the natural law, the latter would nevertheless become known to men and would oblige men in the same way as now because human nature would be constituted in the same way as now by command of the divine reason, and both human nature and its acts would be ordained to the last end—a truth glimpsed by Grotius. “The essential order of things, more particularly the rational good of man, is the proximate source of the obligation of the Natural Moral Law. It is a secondary but true cause in the moral order, producing a true effect, a true obligation.” Ultimately, of course, the efficacy of this secondary cause of moral obligation, which simply results from the necessity of an act in relation to an absolutely necessary end, depends on the first and supreme cause, God and His eternal law. Obviously, if there were no God, nothing would exist, and hence there would be no natural law of any kind. Yet “the obligation of the Natural Moral Law no more demands a knowledge of God as legislator for its efficacy than do the first principles of the speculative order for their validity. This obligation follows from a first principle, the principle of finality, which like the other first principles has ontological value.” To command is the function of law, however, and obligation on the part of the subject is but the inseparable corollary or consequent of command. Since the act of command is immediately and substantially directive or ordering (and not intimating and moving), obligation is primarily a product of the intellect; yet since the act of command is fundamentally and radically motive or effective, obligation is also a product of will. Thus the natural moral law implies the existence of God and His eternal law, and all men are in some degree aware of its obligation as a dictate of practical reason concerning necessary means to an absolutely necessary end, namely, personal perfection and happiness. For nature itself imposes this end upon man by physical necessity—he cannot but will it; and, on the other hand, reason can perceive that certain particular goods and actions suited to man’s rational nature pertain to that end as necessary means or conditions of this perfection and ultimate happiness and that certain others do not. The natural moral law is no mere ideal to be pursued or not in accordance with one’s whims or temperament; it imposes a strict obligation. It simply involves the obligation to apply the supreme moral principle, “Do good and avoid evil,” to every deliberate human course of action. Cf. Walter Farrell, O.P., A Companion to the Summa, I, 383–88; The Natural Moral Law According to St. Thomas and Suarez, pp. 6–13, 54–61, 130–41, 148 ff.; “The Roots of Obligation,” The Thomist, I (1939), 14–30; Michael Cronin, The Science of Ethics, I, 211–30; O. Karrer, op. cit., pp. 52–57, 233 ff.

[12.]Law as it is in the legislator consists in an act of command. But “command is immediately and substantially from the intellect, radically it is from the will; it is an elicited act of the practical reason, presupposing an act of the will” (Walter Farrell, O.P., “The Roots of Obligation,” The Thomist, I [1939], 17).

[1.]Strictly speaking, one cannot directly have duties to oneself. But “one has duties indirectly to himself inasmuch as he is bound by Natural law to attain certain ends” (Charles C. Miltner, C.S.C., The Elements of Ethics [2nd rev. ed., New York: Macmillan Co., 1936], p. 154).

[2.]Cf. St. Thomas, Summa theologica, IIa IIae, q.57, a.1.

[3.]Ibid., q.58, a.5.

[4.]Ibid., a.2.

[5.]Ibid., a.5.

[6.]Cf. A. V. Dicey, op. cit., p. 41.

[7.]Cited by Carlyle and Carlyle, op. cit., III, 128.

[8.]Act III, scene 10.

[9.]Summa theologica, IIa IIae, q.58, a.5.

[10.]In conjunction, of course, so far as the actual fact of abolition is concerned, with fundamental socio-economic changes.

[11.]On the ethical problems raised by slavery in its varying degrees and with its different origins, see in particular Jacques Leclercq, Les droits et devoirs individuels, Part I, pp. 158–83; Luigi Sturzo, “The Influence of Social Facts on Ethical Conceptions,” Thought, XX (1945), 97–99.

[12.]“Life and law are as closely intertwined as motion and its direction to a goal. Stating the nature of life in saying that it is a motion to a goal, we have also stated the nature and purpose of law; for law is exactly the direction of the motion which is life to the goal of life. It deals only with the direction of life; it does not constitute life, nor does it establish the end of life. …

“The identification of human life and moral life is an immediate indication of the close connection of law and morality. Indeed morality is nothing more than conformity with the rule which regulates human life—the rule of reason or law.

“Human life is reasonable life, morality is accord with the rule of reason, and law to establish that morality and rule that reasonable life must be the product of reason. It is not the result of caprice, even of divine caprice; it is not the decree of a superior will. The power of command is a power of the reason and not of the will. It is an ordination, a direction of motion, an effective directive motion; so it is an act proceeding immediately from the intellect on the presupposition of the movement of the will. …

“Our view of life will determine our view of law. If life is a motion to a goal and law the direction of that motion, of course our view on the goal of life will determine our view on both life and law” (Walter Farrell, O.P., A Companion to the Summa, II, 386 f.).

[13.]Cf. K. F. Reinhardt, op. cit., pp. 13–26.

[14.]In the same way the modern national state does not punish the traitor or the disturber of national unity because he is guilty of a sin against the moral virtue of patriotism, but because he is endangering national unity.

[15.]See especially Jacques Leclercq, L’État ou la politique (2nd ed., Namur: Maison d’Éditions Ad. Wesmael-Charlier, 1934.), pp. 82–90; Karl Adam, The Spirit of Catholicism, trans. by Justin McCann, O.S.B. (rev. ed., New York: Macmillan Co., 1935), pp. 196–201.

[16.]Cf. Jacques Leclercq, Marriage and the Family. A Study in Social Philosophy, trans. by Thomas R. Hanley, O.S.B. (2nd ed., New York: Frederick Pustet Co., 1942), pp. 381 ff.

[17.]“No human law can violate the Natural Moral Law and still claim to be a law, because it cannot still pretend to aim at the ends of nature, the common good of the state and the individual” (Walter Farrell, O.P., A Companion to the Summa, II, 378).

[18.]Digest, I, i, 1, trans. by S. P. Scott, The Civil Law (17 vols., Cincinnati: Central Trust Co., 1932), II, 209.

[1.]St. Thomas, Ethicorum, I, 3. Cf. Simon Deploige, The Conflict between Ethics and Sociology, trans. by Charles C. Miltner, C.S.C. (St. Louis: B. Herder Book Co., 1938), pp. 272–75, for a good treatment of this point and for other pertinent texts of St. Thomas.

[2.]“It is necessary for anyone who wishes to be an apt student of moral science that he acquire practical experience in the customs of human life and in all just and civil matters, such as are laws and precepts of political life” (Ethicorum, I, 4, cited by Deploige, op. cit., p. 274).

[3.]Cf. St. Thomas, Summa theologica, Ia IIae, q.94, a.4; Deploige, op. cit., pp. 318 ff. It is worth stressing, in view of the widespread confusion which prevails on this fundamental point, that the sociological basis of the doctrine of the natural moral law is a fact, the moral or ethical fact: “All men judge that there is a difference between right and wrong, good and bad in man’s free activity. In consequence, therefore, they judge that there are some free actions which man ought not to elicit and some which he ought to elicit” (Ignatius W. Cox, S.J., Liberty—Its Use and Abuse, I, 1; see also nos. 45, 75, and 91). That is to say, wherever we find men, we observe that they attribute to their actions qualities which correspond to what we call the ideas of good and evil, right and wrong. The good or right action is worthy of praise, esteem, approval, whereas the bad or wrongful act evokes disapproval, blame, contempt. The good, the right thing, is to be done; the bad or wrong thing is to be avoided. The good man deserves to be loved, and he who does right merits a reward; on the other hand, the bad man deserves to be hated, and the evil-doer is worthy of punishment. These ideas precise in themselves, and their presuppositions (intelligence and free will) are found among all men, no matter how primitive the latter may be and despite the vague, incoherent, and sometimes contradictory ways such ideas are applied. Cf. Jacques Leclercq, Le fondement du droit et de la société, pp. 94–96.

[4.]In Octo Libros Politicorum Aristotelis Expositio, II, 5.

[5.]Pius XI, in his Encyclical Quadragesimo Anno of 1931, thus enunciates this fundamental principle of social philosophy: “Just as it is wrong to withdraw from the individual and commit to the community at large what private enterprise and industry can accomplish, so too it is an injustice, a grave evil, and a disturbance of right order for a larger and higher organization to arrogate to itself functions which can be performed efficiently by smaller and lower bodies. … Of its very nature, the true aim of all social activity should be to help individual members of the social body, but never to destroy or absorb them” (ed. Oswald von Nell-Breuning, § 79). For an adequate understanding of the principle of subsidiarity, cf. Oswald von Nell-Breuning, S.J., op. cit., pp. 206–09; Johannes Messner, Die soziale Frage, pp. 517 ff., 651 f., and Die Berufstaendische Ordnung (Innsbruck: Verlagsanstalt Tyrolia, 1936), pp. 22 ff. and passim; Yves R. Simon, Nature and Functions of Authority. The Aquinas Lecture, 1940 (Milwaukee: Marquette University Press, 1940), pp. 46 ff.

[6.]St. Thomas, Summa theologica, Ia IIae, q.105, a.1.

[7.]“The precepts of the natural law are to the practical reason what the first principles of demonstrations are to the speculative reason, because both are self-evident principles” (ibid., q.94, a.2). Cf. ibid., q.90, a.1 ad 2; q.91, a.3; Deploige, op. cit., pp. 291–93.

[8.]“The good of anything consists in this that its action be proportionate to its form. But the proper form of man is that by which he is a rational animal. Hence an action of man must be good in so far as it conforms to reason” (St. Thomas, Ethicorum, II, 2, cited by Deploige, op. cit., p. 294). “In human affairs a thing is said to be just from being right, according to the rule of reason” (Summa theologica, Ia IIae, q.95, a.2). “Whatsoever has a determinate nature must have determinate actions, becoming to that nature: since the proper operation of a thing is consequent to its nature. Now, it is clear that man has a determinate nature. Therefore there must needs be certain actions that are in themselves becoming to man” (Summa contra Gentiles, Bk. III, chap. 129).

[9.]Cf. Stanley Bertke, op. cit., p. 70. Strictly speaking, however, even this formulation is inadequate. Certain Old Testament episodes afford us the occasion of perceiving that we must apparently add the qualification: “save on the absolutely clear and express order of God, supreme Master of human life and property.” Yet no such ultimate qualification can be conceived or admitted in the case of such ethical dictates as those against blasphemy, lying, and abuse of the sex functions which are intrinsically connected with the very essence of human nature adequately considered in its constitution, end, and essential relations. After all, not even God can alter the essential properties of a triangle without changing its nature, or do anything else which involves non-sense.

[10.]This absolute prohibition (i.e., at least so far as human authority is concerned) includes, therefore, any form whatever of direct killing of an innocent person for any reason whatever; it includes abortion, therapeutic as well as criminal, and euthanasia or “mercy-killing.” But it also includes the grave mutilation—especially direct sterilization—of an innocent person, except where such mutilation is necessary for the good of the whole body or seemingly even where, in general, a person consents to sacrifice an organ for the good of his neighbor. The ethical problem of the indirect killing or maiming of an innocent person is governed by the principle of the double effect. For “no one may intend or choose harm to another person, but at most may permit it for just cause; so that every harm to another which follows as a consequence upon a voluntary human act is either entirely unjustifiable, or can be justified only on the principle of the double effect.” Now the principle of the double effect may be formulated as follows: It is morally permissible to perform an act (whether of commission or omission) good or indifferent in itself from which follow a good effect and a bad effect, provided (a) that the good effect follows from the act at least just as immediately as the bad effect, and is not obtained by means of the latter; (b) that the good effect alone is intended, the bad effect though foreseen being merely permitted; and (c) that the good resulting from the act outweighs or equals the evil. Killing or maiming a human being in the case of individual or social self-defense is justifiable only to the extent that it is a strictly necessary measure of last resort against an unjust aggressor. The state, in particular, has no blanket, unconditional power over human life and bodily integrity. See T. Lincoln Bouscaren, S.J., Ethics of Ectopic Operations (2nd ed., Milwaukee: Bruce Publishing Co., 1944), pp. 25–64; Edgar Schmiedeler, O.S.B., Sterilization in the United States (pamphlet, Washington, D.C.: National Catholic Welfare Conference, 1943), pp. 25–34; Joseph B. Lehane, The Morality of American Civil Legislation Concerning Eugenical Sterilization. The Catholic University of America Studies in Sacred Theology, No. 83 (Washington, D.C.: Catholic University of America Press, 1944), pp. 63–98; Bert J. Cunningham, C.M., The Morality of Organic Transplantation. The Catholic University of America Studies in Sacred Theology, No. 86 (Washington, D.C.: Catholic University of America Press, 1944), pp. 16, 100–06.

[11.]Cf. Francis P. LeBuffe, S.J., and James V. Hayes, op. cit., p. 45; Regina Flannery, “Nationalism and the Double Ethical Code,” Thought, IX (1935), 610–22.

[12.]See John K. Ryan, Modern War and Basic Ethics (Milwaukee: Bruce Publishing Co., 1940); John A. Ryan and Francis J. Boland, C.S.C., Catholic Principles of Politics (New York: Macmillan Co., 1940), pp. 251–71; John Eppstein, The Catholic Tradition of the Law of Nations (Washington, D.C.: Carnegie Endowment for International Peace—Catholic Association for International Peace, 1935), pp. 65–146; Luigi Sturzo, Les guerres modernes et la pensée catholique (Montreal: Éditions de l’Arbre, 1942), pp. 31–102; Jacques Leclercq, Les droits et devoirs individuels, Part I, Vie, disposition de soi, pp. 109–32.

[13.]All this is true a fortiori of the direct killing of innocent non-combatants, even under conditions of total warfare. Cf. John K. Ryan, op. cit., pp. 97–118; John C. Ford, S.J., “The Morality of Obliteration Bombing,” Theological Studies, V (1944), 261–309.

[14.]Abuti does not mean here to abuse, but to use up. Cf. Jacques Leclercq, Les droits et devoirs individuels, Part II, Travail, Propriété (Namur: Maison d’Édition Ad. Wesmael-Charlier, 1937), p. 89.

[15.]Cf. St. Thomas, Summa theologica, IIa IIae, q.66, a.7.

[16.]“Now since human morals depend on their relation to reason, which is the proper principle of human acts, those morals are called good which accord with reason, and those are called bad which are discordant from reason. And as every judgment of speculative reason proceeds from the natural knowledge of first principles, so every judgment of practical reason proceeds from principles known naturally … : from which principles one may proceed in various ways to judge of various matters. For some matters connected with human actions are so evident, that after very little consideration one is able at once to approve or disapprove of them by means of these general first principles: while some matters cannot be the subject of judgment without much consideration of the various circumstances, which all are not competent to do carefully, but only those who are wise” (ibid., Ia IIae, q.100, a.1).

[17.]Deploige thus sums up the teaching of St. Thomas on this point: “At other times men do not act rightly because they do not see clearly. To guide themselves, all assuredly have certain general precepts of the natural law, supreme norms which are found in the different moralities of peoples, first principles which no human intelligence can be ignorant of. Still, to regulate the details of conduct, the consequences of these precepts must be clearly deduced and they must be applied judiciously.

“Reason, instructed by experience, is the instrument of this work of orientation. But its sharpness of vision is very unequal from one individual to another; and its strength is not exercised in the same way at different moments of life. Youth is ignorant and presumptuous; at a mature age reflection is calmer. Experience is the privilege of those who have lived a long time and have seen much.

“Young or old, hemmed in by ignorance or enlightened by science, all will be able through a bit of attention, if the case is clear, to solve it suitably by recourse to general principles: each, for example, will spontaneously recognize that he must honor his parent, condemn murder or theft.

“If the situation is complicated, only wise men will be able to take account of all the circumstances. And it will take all the subtlety of their minds to discover, in the series of occasions, the laws of right living” (op. cit., pp. 316–18).

[18.]Jacques Maritain is altogether correct in his assertion that “natural law is not a written law. Men know it with greater or less difficulty, and in different degrees, running the risk of error here as elsewhere.” But he appears to go too far when he adds that “the only practical knowledge all men have naturally and infallibly in common is that we must do good and avoid evil” (The Rights of Man and Natural Law, pp. 62 f.). Yet whatever may be the case in regard to individuals, “the peoples of the world, however much they differ as to details of morality, hold universally, or with practical universality, to at least the following basic precepts. Respect the Supreme Being or the benevolent being or beings who take his place. Do not ‘blaspheme.’ Care for your children. Malicious murder or maiming, stealing, deliberate slander or ‘black’ lying, when committed against friend or unoffending fellow clansman or tribesman, are reprehensible. Adultery proper is wrong, even though there be exceptional circumstances that permit or enjoin it and even though sexual relations among the unmarried may be viewed leniently. Incest is a heinous offense. This universal moral code agrees rather closely with our own Decalogue understood in a strictly literal sense. It inculcates worship of and reverence to the Supreme Being or to other superhuman beings. It protects the fundamental rights of life, limb, family, property and good name” (John M. Cooper, “The Relations Between Religion and Morality in Primitive Culture,” Primitive Man, IV [1931], 36). Cf. also Stanley Bertke, op. cit., pp. 73–83.

[19.]When St. Thomas “finds himself in the presence of different moralities, of contradictory laws, of diversely organized institutions,” he neither regards every variation as an anomaly nor attributes all divergences to the same cause. The explanations scattered through his works may be grouped under three heads: “1. the influence of the passions; 2. the unequal development of reason, of insight, and of civilization; 3. the diversity of conditions, of situations, and of circumstances” (Deploige, op. cit., p. 314).

[20.]“The practical reason is concerned with operable matters, which are singular and contingent, but not with necessary things, with which the speculative reason is concerned. Therefore human laws cannot have that inerrancy that belongs to the demonstrated conclusions of the sciences. Nor is it necessary for every measure to be altogether unerring and certain, but according as it is possible in its own particular genus” (St. Thomas, Summa theologica, Ia IIae, q.91, a.3 ad 3).

[21.]Cf. Deploige, op. cit., p. 313 f., for the pertinent texts of St. Thomas.

[22.]Cf. St. Thomas, Summa theologica, Ia IIae, q.94, a.6; Deploige, op. cit., p. 315.

[23.]Cf. Deploige, op. cit., pp. 334 ff.

[24.]Deploige, op. cit., pp. 324–26, gives the various texts of St. Thomas which deal with this type of incest as well as with sexual relations in the collateral lines. Cf. also John M. Cooper, “Incest Prohibitions in Primitive Culture,” Primitive Man, V (1932), 1–20; “Near-Kin Marriages: the Ethics of Human Interbreeding,” The Ecclesiastical Review, LXXXVII (1932), 136–48, 259–72.

[25.]Such formulas as that of the Neo-Kantian Rudolf Stammler, “natural law with a changing content,” and that of Georges Renard, “natural law with a progressive content,” are consequently altogether unsatisfactory. Much more adequate is the formula, “natural law with changing and progressive applications.” Cf. Jacques Leclercq, Le fondement du droit et de la société, pp. 45, 57 f. In this sense the natural law is truly dynamic. If man must become what he is, he must continually strive to advance, individually and socially, toward an ever higher degree of human perfection. In other words, the natural law indicates, prescribes, and governs man’s basic individual and social duty to make progress, progress that is at once material, intellectual, and moral, and that has no visible earthly limits. Cf. ibid., pp. 148 ff., and, in general, E. Stanislaus Duzy, Philosophy of Social Change According to the Principles of Saint Thomas. The Catholic University of America Philosophical Studies, Vol. XCI (Washington, D.C.: Catholic University of America Press, 1944).

[26.]In this narrow or strict sense, to keep an important point clear, the natural law is the natural “moral law so far as it applies to the regulation of social relations” (Leclercq, op. cit., 18).

[27.]For the ensuing discussion of the weightiest and most fundamental problem of social philosophy in its chief aspects, see in general ibid., pp. 325–39; Hans Meyer, op. cit., pp. 417–54; K. F. Reinhardt, op. cit., pp. 141–47; Jacques Maritain, The Rights of Man and Natural Law, pp. 1–19; Scholasticism and Politics, pp. 56–88; Charles de Koninck, De la primauté du bien commun contre les personnalistes. Le principe de l’ordre nouveau (Quebec: Éditions de l’Université Laval, 1943); Rudolph John Harvey, O.F.M., The Metaphysical Relation Between Person and Liberty and Its Application to Historical Liberalism and Totalitarianism, The Catholic University of America Philosophical Studies, Vol. LXIV (Washington, D.C.: Catholic University of America Press, 1942); James H. Hoban, The Thomistic Concept of Person and Some of Its Social Implications, The Catholic University of America Philosophical Studies, Vol. XLIII (Washington, D.C.: Catholic University of America Press, 1939); Franz Mueller, “Person and Society according to St. Thomas,” in Theodore Brauer and others, Thomistic Principles in a Catholic School (St. Louis: B. Herder Book Co., 1943), pp. 184–263; Wilhelm Schwer, Catholic Social Theory, trans. by Bartholomew Landheer (St. Louis: B. Herder Book Co., 1940), pp. 115 ff.

[28.]Cf. Jacques Leclercq, op. cit., pp. 15 f.; Francis P. LeBuffe, S.J., and James V. Hayes, op. cit., pp. 140 f.

[29.]But also in Aristotle’s slave-by-nature doctrine. Cf. Politica, I, 4–7, 1253b 23–1255b 40.

[30.]Politics, trans. by Blanche Dugdale and Torben de Bille (2 vols., New York: Macmillan Co., 1916), I, 390 f. and 388 f.

[31.]Summa theologica, Ia, q.21, a.1 ad 3.

[32.]Other major or original titles of acquiring ownership are the effective first occupation of unclaimed property and natural increase or accession; minor and more or less derived titles are carnal intercourse, gifts and bequests, hereditary succession, prescription, contracts of various kinds. Cf. Oswald von Nell-Breuning, op. cit., p. 120; Charles C. Miltner, C.S.C., The Elements of Ethics, pp. 227–31; Ignatius W. Cox, S.J., Liberty—Its Use and Abuse, II, 93–108.

[33.]Leo XIII, Rerum Novarum (1891), § 8, ed. by Oswald von Nell-Breuning, op. cit., p. 370. The question of whether and in what precise sense private ownership, or the institution of private property, is a positive and strict dictate of the natural law or is rather merely in eminent accord with the natural law is not an easy one. It has numerous facets, and it must be viewed from many angles. In the thought of Aristotle and St. Thomas, observes Jacques Leclercq, “property is an institution necessary to man, and it must be established to the extent that it is necessary or useful. But it is not one of those institutions which, like the family, flow directly from nature. It is natural in the sense that it is natural for man to live in society and that property is an institution indispensable to the social order, but its immediate establishment comes from society and the latter, in consequence, regulates its forms. Furthermore, the use of property must be directed above all toward the common good” (Les droits et devoirs individuels. Part II, Travail, Propriété, pp. 93 f.). For an excellent and full treatment of the right of private property in the light of the natural law, see ibid., pp. 81–170. Cf. also William J. McDonald, The Social Value of Property according to St. Thomas Aquinas. The Catholic University of America Philosophical Studies, Vol. XLVIII (Washington, D.C.: Catholic University of America Press, 1939); John A. Ryan, Distributive Justice (rev. ed., New York: Macmillan Co., 1927), pp. 57–66; Ignatius W. Cox, S.J., op. cit., II, 66–86; Charles C. Miltner, C.S.C., op. cit., pp. 218–31; Oswald von Nell-Breuning, op. cit., pp. 94–122.

[34.]“Property is an essential guaranty of human dignity. For, in order that a man may be able to develop himself in a human fashion, he needs a certain freedom and a certain security. The one and the other are assured him only through property. … If man has the right to dispose of himself, he has the right of property, not only in the sense that the property of those who are owners in consequence of fortuitous circumstances must be respected, but in the sense that the state has the obligation of organizing society in such a way as to render as easy as possible the acquisition of a minimum of stable property according to a rule of equality” (Jacques Leclercq, op. cit., pp. 130 f.).

[35.]Such persons become proletarians, urban or rural, “owning no property, possessing no land or tools or any capital of their own, dependent exclusively on daily wages, and living in rented rooms” (Carlton J. H. Hayes, A Political and Cultural History of Modern Europe [2 vols., New York: Macmillan Co., 1932–36], II, 47). Cf. also Goetz A. Briefs, The Proletariat (New York: McGraw-Hill Book Co., 1937). In this respect it makes little or no difference whether the masses of people are completely dependent economically upon wealthy individuals, great corporations, or the state itself. Moreover, the natural-law defense of the right to private property is essentially the defense of well-distributed property, not of an abstract right that can in practice be exercised only by the few.

[36.]Leo XIII, Rerum Novarum, §§ 9 f., ed. by Oswald von Nell-Breuning, op. cit., pp. 370 f. Cf. Jacques Leclercq, op. cit., pp. 133–40.

[37.]“Since the right to life is primary and paramount, the natural law ordains that the organization of property must be such as to provide all who claim membership in the human species with a reasonable opportunity for the adequate satisfaction of their needs. In the present order the institution of private property, in its essentials, is best calculated to serve this purpose. But the basic institution itself is not to be confused with particular forms it may assume in different ages or regions. These will be justified according as they continue to show that they are achieving the general aim of ministering to the good of human life. The decrees of nature oppose any attempt at complete collectivization but natural right may also be violated under a regime in which a great number, although theoretically free, are in practice excluded from the possibility of acquiring property” (William J. McDonald, op. cit., p. 183).

[38.]August Pieper, Organische und mechanische Auffassung des Gemeinschaftslebens (3rd ed., M.-Gladbach: Volksvereins-Verlag, 1929), pp. 20 f.

[39.]Cf. W. W. Willoughby, op. cit., pp. 36–39.

[40.]For an illuminating discussion of necessary societies, see Jacques Leclercq, Le fondement du droit et de la société, pp. 278–322.

[41.]Indeed, as Jacques Leclercq has succinctly pointed out, “if the particular societies within the state are not necessary, each one taken by itself—if the commune is not necessary, or the province, or the professional group—what is necessary is that there be some particular societies, and indeed in every political society as soon as it exceeds the stage of a village community.” Imperfect, dependent or non-sovereign as such societies may be, they are yet genuine societies, i.e., permanent unions of men formed for the purpose of achieving a common end. Le fondement du droit et de la société, pp. 284 f.

[42.]Cf. Jacques Leclercq, Marriage and the Family. A Study in Social Philosophy, pp. 358 ff.

[43.]Cf. ibid., pp. 243–46.

[44.]Marriage involves the special type of contract known as contract of adherence. Cf. ibid., pp. 29–33.

[45.]A good summary statement of the proper functions, primary and secondary, of the state is found in John A. Ryan and Francis J. Boland, C.S.C., Catholic Principles of Politics, pp. 127–39; cf. also ibid., pp. 108–26, for a trenchant discussion of erroneous theories about the functions of the state.

[46.]What is the meaning of the pregnant phrase “common good”? The beneficial objects denoted by the term “good” “are all the great classes of temporal goods; that is, all the things that man needs for existence and development in this life. They comprise all these orders of goods, spiritual, intellectual, moral, physical and economic; in other words, all the external goods of soul and body. The common good means not only the good of all in general, or as a whole, but the good of every class and, so far as practicable, the good of every individual. To put the matter in summary terms, the State is under obligation to promote the welfare of its citizens, as a whole, as members of families, and as members of social classes” (ibid., pp. 104, 106 f.).

[47.]For an illuminating and cogent natural-law discussion of state and national sovereignty with its limitations and inadequacies as well as of the imperative material and moral necessity of an organized world society, see Jacques Leclercq, Le fondement du droit et de la société, pp. 285–322. Cf. also the admirable “Preliminary Recommendation on Post-War Problems” formulated by the Inter-American Juridical Committee at Rio de Janeiro, September 5, 1942, in Bulletin of the Pan American Union (April, 1943), pp. 212–24; Thomas R. Hanley, O.S.B., “Some Interpretations of the Present World Crisis,” The National Benedictine Educational Association Bulletin, XXV (1943), 159–75; Luigi Sturzo, “The Influence of Social Facts on Ethical Conceptions,” Thought, XX (1945), 101–10; Guido Gonella, A World to Reconstruct. Pius XII on Peace and Reconstruction, trans. by T. Lincoln Bouscaren, S.J. (Milwaukee: Bruce Publishing Co., 1944), especially pp. 246–78; John J. Wright, National Patriotism in Papal Teaching (Westminster, Md.: Newman Bookshop, 1943), in particular pp. 195–323; Emery Reves, The Anatomy of Peace (New York: Harper and Brothers, 1945)—with certain reservations, particularly with regard to the chapter entitled “Failure of Religion” which, for all the justice of some of its criticisms and strictures, must be set down as altogether sophomoric. Of great value, likewise, are the pamphlets prepared by specialists and issued by the Catholic Association for International Peace, Washington, D.C.: The World Society (1940); International Ethics (4th ed., 1942); A Peace Agenda for the United Nations (1943). Lastly, for certain sobering, though perhaps not entirely convincing, reflections upon the problem of a world state, see Heinrich Rommen, “Realism and Utopianism in World Affairs,” The Review of Politics, VI (1944), 193–215.

[48.]In the final analysis, the person is a rational substance, a substantial reality, whereas any society whatever is but an accidental reality, a reality of order, of the category of relation, not a super-person. Cf. Jacques Leclercq, Le fondement du droit et de la société, pp. 325–28, 360–64.

[49.]However, even though man’s natural rights are commonly termed absolute and inviolable, they are limited by the requirements of the universal order to which they are subordinated. Absolute, in the sense in which it is here used, does not mean unlimited. Specifically, the natural rights of man are limited intrinsically by the end for which he has received them (self-development within order) as well as extrinsically by the equal rights of other men, by his duties toward others. Cf. Jacques Leclercq, op. cit., pp. 329–33.

[50.]John A. Ryan and Francis J. Boland, C.S.C., op. cit., pp. 13–27, deal very ably with the subject of natural rights; cf. also Hans Meyer, op. cit., pp. 474–93; Jacques Maritain, The Rights of Man and Natural Law, pp. 64–68, 73–114; K. F. Reinhardt, op. cit., pp. 154–58. Thomas P. Neill nicely sums up the whole matter: “It is from natural law, and from it alone, that man obtains those rights we refer to as inalienable and inviolable. Man’s only right, in the last analysis, is the right to be a man, to live as a human person. Specific human rights, then, are all based on man’s right to live a human life. Some of these rights belong to man simply as a man and therefore are above and beyond the reach of the State. His right to existence, for example, the right to perfect his moral nature, his right to personal freedom, the right to be treated as a free, intelligent, responsible human being in no way depend upon the state. But there are other rights that man enjoys as a member of political society: freedom of expression, freedom of association, equal access to the law. And there are still others that he derives from his particular position in society, rights without which he could not properly perform his social functions: the right to form vocational groups, to a living wage, to human working conditions, to be treated as a responsible person rather than as a unit of labor energy.

“Each of these rights, of course, involves an obligation on the part of all others to respect it. But each of these rights, it should be remembered, is also founded on a corresponding duty on the part of its possessor. The right to freedom of religion, for example, is based on the duty to worship God, just as the right to work is based on the duty of self-preservation and self-perfection. Each of these human rights, moreover, is limited by the rights possessed by all other men. No right is, properly speaking, an absolute right. Even freedom of religion is limited by the human rights of all others within the state. Thus the state has the right, based on its duty of protecting its citizens, to forbid a religious group from practicing infanticide or polygamy.

“Human rights can have no foundation other than natural law. Legally, of course, they come from the state, but if a legal ‘right’ is truly to be a right it must be based on natural law—which is only another way of saying that it must be based on man’s very nature. And since they are based in human nature they are really inalienable and morally inviolable. Only the Creator of human nature can take them away, and God could do that without contradicting Himself only by changing human nature itself. Thus the soundest, the only foundation of those human rights so flagrantly violated today is natural law. The only foundation for a sound structure of government and of all social institutions is natural law” (Weapons for Peace [Milwaukee: Bruce Publishing Co., 1945], pp. 155 f.).

[51.]No one has made this point more lucidly or more strongly than Leo XIII: “Particular societies, then, although they exist within the State, and are each a part of the State, nevertheless cannot be prohibited by the State absolutely and as such. For to enter into ‘society’ of this kind is the natural right of man; and the State must protect natural rights, not destroy them; and if it forbids its citizens to form associations, it contradicts the very principle of its own existence; for both they and it exist in virtue of the same principle, namely, the natural propensity of man to live in society” (Rerum Novarum, § 38, ed. by Oswald von Nell-Breuning, op. cit., pp. 388 f.).

[1.]Cf. Jacques Leclercq, Le fondement du droit et de la société, p. 57.

[2.]This is the true meaning of certain passages of Aristotle (Ethica Nicomachea, I, 3, 1094b 11–26; II, 2, 1103b 26–1104a 9) and St. Thomas (Ethicorum, II, 2) which are sometimes cited to show that even these weighty authorities did not regard ethics as a science that yields conclusions which are certain. Summarizing what has been said on this subject in the preceding pages, we may affirm that the primary principles and proximate conclusions of ethics, together with their applications to the simplest problems of human living, enjoy a degree of certainty that is either absolute or borders on the absolute. This is evidenced, too, by the agreement between the fundamental prescriptions or presuppositions of the moral codes of primitive and civilized peoples alike. There exists, moreover, a much larger area of human activity in which developed practical reason can attain at least moral certitude, i.e., certainty of a kind that will satisfy the mind of a prudent man, and this area of more remote conclusions includes all the basic and common duties of ordinary life, individual and social. Finally, there is a peripheral area of considerable and elastic dimensions, an area of very remote conclusions consisting of involved, complex, and extremely contingent cases and relationships with which especially the human lawmaker has largely to deal. It is in part with the second category of ethical conclusions, but especially with the third one, that the remarks of Aristotle and St. Thomas have to do. If it is nonsense to hold that the findings of ethics are no more than mere opinions, it is quite as impossible to accept, without the most serious qualifications and reservations, the view of John M. Cooper (except perhaps in the matter of private ownership) that “ethics is not an exact science. Its major conclusions are woven of probabilities. Moreover, in all ethical discussions of larger problems, such, for example, as the right or desirability of life, of truthfulness, or of property ownership, our final practical ethical judgments must be arrived at after a careful weighing of the prospective or actual gains to welfare as compared with the prospective or actual losses” (“Contraception and Altruistic Ethics,” The International Journal of Ethics, XLI [1931], 459). Cf. Charles C. Miltner, C.S.C., op. cit., p. 7; Stanley Bertke, op. cit., 63–73; Michael Cronin, The Science of Ethics, I, 21–25, 127–74.

[3.]Ethicorum, V, 15, cited by Deploige, op. cit., p. 314.

[4.]Cf. in general Miriam Theresa Rooney, Lawlessness, Law, and Sanction. The Catholic University of America Philosophical Studies, Vol. XXXIV (Washington, D.C.: Catholic University of America Press, 1937). It is important to note, in connection with the intrinsic sanction attached to the natural moral law, that neither ignorance nor good faith on the part of either individuals or entire societies suffices to ward off the harmful psychological, moral, social, and often physical consequences of actions that are in themselves bad that are violations of the natural moral law. The invincible ignorance, good faith or sincerity of individuals and groups provide the basis for the weighty and often disconcerting distinction between objective wrong and subjective guilt, between material sin and formal sin and hence they serve to excuse one from formal guilt in the sight of God. Yet certain consequences of evil acts are inexorable; they lie in the nature of things. They are the inescapable penalties for the want of deep and correct insight into, and faithful adherence to, the conditions fixed by nature, and ultimately by nature’s Author, for human individual and social development and happiness. Furthermore, they are the needed spur to a reconsideration of the moral quality of actions hitherto regarded as good; they constitute necessary and salutary incentives to moral reform as the indispensable means to genuine and rounded human progress; and they give the lie to the senseless but oft-heard saying, “There is nothing wrong or bad but thinking makes it so.” An excellent illustration of this point is furnished by the widespread practice of positive contraception or artificial birth control, which, objectively, as a deliberate perversion whereby the essential order between the sex act and its primary end is destroyed (as in final analysis nothing but mutual masturbation), is intrinsically immoral and therefore justifiable under no circumstances whatsoever. Now, even if we largely grant invincible ignorance and good faith to the non-Catholic masses and their moral leaders regarding this rather remote conclusion from the primary principle of the natural moral law (on the possibility of the invincible ignorance of some Catholics in this matter, cf. Stanley Bertke, of. cit., pp. 97 ff.), will the wedge-principle in ethics cease to operate? Will birth rates cease to fall or populations to decline? Will the various and complicated untoward economic, social, political, international, and interracial consequences of a widespread practice of artificial birth control be avoided? Will men more readily master the sexual part of their nature and more easily subject it to reason? Will the consequent small family really promote the moral growth of parents and the moral education of children? Will the moral fiber of individuals and societies be strengthened? Will the mounting pleasure complex be checked? Will the principle that the end justifies the means, the implicit assumption mostly underlying the acceptance and defense of positive contraception (as also of eugenic sterilization, therapeutic abortion, artificial insemination as usually practiced, euthanasia, and the like), be restricted in its applications to this single case? To ask these and other pertinent questions is to answer them. Whether in good faith or in bad faith, a society addicted to artificial birth-control practices will inexorably pay the terrible penalties of its contravention of the natural moral law, first indeed in subtle ways, and then more and more openly and upon an ever vaster scale. It is a mere question of time.

[5.]For a thorough and severe criticism of the notion of punitive justice, apparently accepted here, as confused, sentimental, irremediably obscure, and unnecessary, see Jacques Leclercq, Les droits et devoirs individuels. Part I, Vie, disposition de soi, pp. 82–96: social self-defense and emendation of the guilty person provide a sufficient basis for the legitimacy of punishment, which may be reparational, repressive (personal and exemplary), and educational. For an exposition of the dominant scholastic view of punishment in terms, rightly or wrongly, of the philosophy of St. Thomas, cf. George Quentin Friel, O.P., Punishment in the Philosophy of St. Thomas and among Some Primitive Peoples. The Catholic University of America Philosophical Studies, Vol. XLVII (Washington, D.C.: Catholic University of America Press, 1939).

[6.]St. Thomas, Summa theologica, IIa IIae, q.50, a.1 ad 1, 3.

[7.]Cf. ibid., q.47, a.6, 15.

[8.]Cf. ibid., q.50, a.1 f.

[9.]Why may society never demand from one of its members an action that is unjust, immoral, sinful? Because “the reason for the existence of society is to aid in developing men in accordance with their human nature, and because sin is that which is contrary to the requirements of human nature. To sin is to act as though one were not a man, to go counter to one’s nature as a reasonable being, to deny one’s humanity” (Jacques Leclercq, Le fondement du droit et de la société, p. 335).

[10.]In a long and temporarily discontinued series of penetrating and diffuse (and also somewhat confusing) articles on “The Theory of Democracy” in The Thomist (Vol. III, July, 1941–Vol. VII, January, 1944), Mortimer J. Adler and Walter Farrell, O.P., challenge some of the traditional conclusions of natural-law political thinking. The authors are wholly intent upon establishing their proposition that “democracy is, on moral grounds, the best form of government,” and in reformulating the basic problem of the classification of states. Cf. ibid., III (1940), 398.

[11.]Cf. St. Thomas, Summa theologica, Ia IIae, q.97, a.1, quoting St. Augustine. “All should take some share in the government, for this form of constitution ensures peace among the people, commends itself to all, and is most enduring. … Accordingly, the best form of government is in a state or kingdom, wherein one is given the power to preside over all, while under him are others having governing powers. And yet a government of this kind is shared by all, both because all are eligible to govern, and because the rulers are chosen by all. For this is the best form of polity, being partly kingdom, since there is one at the head of all; partly aristocracy, in so far as a number of persons are set in authority; partly democracy, i.e., government by the people, in so far as the rulers can be chosen from the people, and the people have the right to choose their rulers” (ibid., q.105, a.1).

[12.]This principle has, however, been all too frequently interpreted and applied in the sense of raison d’Etat, the canon of political non-morality, Machiavellianism, power politics. Cf. Jacques Leclercq, Le fondement du droit et de la société, pp. 295 ff.

[13.]This is scarcely true of modern England itself, where parliament is, at least in theory, legally omnipotent.

[14.]Caution is especially imperative, however, where the remote conclusions of the natural law, where borderline cases are concerned. Is a judge, e.g., bound to condemn a defendant who, though known to the judge to be innocent, is judicially proved guilty? St., Thomas answers yes, but St. Bonaventure teaches the contrary. Cf. Stanley Bertke, op. cit., p. 73.

[15.]Carlyle and Carlyle point out that the general political principles of the Middle Ages were “the supremacy of law, the community as the source of political authority, the limited authority of the ruler, and the contractual nature of the relations between the ruler and the community,” and they rightly insist that the development of these principles was not more than incidentally related to the frequent conflicts which occurred between the temporal and spiritual powers. A History of Mediaeval Political Theory in the West, V, 438; see especially pp. 441–74.

[16.]It is a pleasure to recommend to the law student, and to practicing lawyers as well, the mature and balanced volume of William Francis Clarke, The Soul of the Law (Boston: Bruce Humphries, 1942).

[1.]John 8:32.

[2.]But the most important lesson of this entire study of the history and philosophy of the natural law may be succinctly stated in a paraphrase of a law of philosophical experience formulated by Etienne Gilson (The Unity of Philosophical Experience, p. 306): “The natural law always buries its undertakers.” Or, as Horace has expressed it (Epistles I, x, 24): Naturam expellas furca, tamen usque recurret. “You may drive out nature with a pitchfork, yet it will always return!”