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

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.

[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.).