Front Page Titles (by Subject) CHAPTER XII: Morality and Law - The Natural Law: A Study in Legal and Social History and Philosophy
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CHAPTER XII: Morality and Law - Heinrich Rommen, The Natural Law: A Study in Legal and Social History and Philosophy 
The Natural Law: A Study in Legal and Social History and Philosophy, trans. Thomas R. Hanley. Introduction and Bibliography by Russell Hittinger (Indianapolis: Liberty Fund 1998).
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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
[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.
[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. …
[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.