Front Page Titles (by Subject) CHAPTER VIII: Being and Oughtness - The Natural Law: A Study in Legal and Social History and Philosophy
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER VIII: Being and Oughtness - Heinrich Rommen, The Natural Law: A Study in Legal and Social History and Philosophy 
The Natural Law: A Study in Legal and Social History and Philosophy, trans. Thomas R. Hanley. Introduction and Bibliography by Russell Hittinger (Indianapolis: Liberty Fund 1998).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
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
[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.