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CHAPTER XIV: Natural Law and Positive 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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Natural Law and Positive Law
Legal positivism, that is, the theoretical rejection of the natural law according to form (as non-positive source of valid law) and content (as law contained in no positive norm), maintains that the natural-law doctrine represents a dualism which is inimical to legal security; or that for fixed objective norms it substitutes subjective opinions concerning a juridical oughtness; or that in a dualistic fashion valid legal norms are drawn from a system of norms which is set in contrast to the positive law (ethics, law of reason, reform proposals for new legislation, Roman law as written reason). Hence positivism regards the natural law as a non-law in the proper sense of the word. It refers, instead, to ethics, to fabricated ideal norms for new legislation, to politico-legal aims, and so on.
Law, according to positivism, is only positive law, that is, statute law and such customary law as is recognized by the state. More precisely, positivism characterizes as law to be applied by the judge and alone to be considered by jurisprudence those norms only which are enacted as such by the factual and published will of the legislative organ in due conformity with constitutional law or which are explicitly or tacitly admitted by it. The positivist is ever seeking for the written or actually enforced factual decision of the will which converts a potential norm into an actual norm. Moreover, he is concerned solely with this formal origin of law, with the source of the norm and its manner of formation, not with its content. Auctoritas facit legem, law is will. The question of whether something can be wrong in itself is meaningless for him. To him, right and wrong are not material qualities of norms; they merely denote the presence or absence of agreement with the factual will of the lawmaker. ‡In contrast, for instance, to the Roman jurist, the positivist does not search for justice by way of the positive norm in which it is contained materially; he inquires rather for the norm which is derived from the will of the legislator. The establishing of this fact settles for him the question whether a legal norm lies before him. He presumes its justice, or he asserts that the question of justice is an ethical question, not a juridical one.
In constitutional states, however, the typical positivist runs into difficulties. Particularly when it comes to applying the law, he must inquire not only whether the path of legislation prescribed by the constitution has been followed, but also whether the law (including customary law) is not in conflict with the higher norms of constitutional law. And there the legal positivist readily runs afoul of natural law. To the positivist, many constitutional provisions are not genuine legal norms but rather programmatic utterances of the constituent or constitution-making power. Take, for instance, such a constitutional provision as “Property imposes obligations; its use must at the same time be a service of the common weal.” The positivist characterizes this provision as a mere guiding rule, not as a binding norm for either lawmaker or citizen. He insists upon taking such a view even though this provision is aimed directly at the individualist concept of property, and though property and obligation obviously are juridical concepts. Here, in our view, lies the typical positivist short circuit. The positivist, who for that matter does not know what to do with such highly important constitutional preambles, perceives in these cases invasion points for natural law to be applied by the judge. In the United States the judge, by referring to the natural-law foundation of man’s rights to liberty, has set himself not only above the lawmaker but in theory even above the framers of constitutional law. For the real lawmaker is not the one who enacts the laws, but the one who sovereignly expounds them. But the interpreter refers precisely to natural law and justice. This formalist method makes positivism possible even for Catholic thinkers, when they regard ethics and the moral law as norms derived from God’s will. Such norms do not indeed have legal validity, but they do have the moral force of oughtness.
It is generally acknowledged today that positivism is inadequate from the standpoint of both legal theory and legal philosophy. One of its bases, the theory of the completeness of the law or absence of gaps in the law, has been given up. The theory of legal monism has likewise been widely abandoned. For good faith, the principles of morality and the carefulness of the ordinary merchant are often used by the judge as valid norms not only beyond or in addition to the positive law, but even contrary to the positive law. That is, they are used contrary to the factual will of the lawmaker, even if generally on the basis of the unwarranted fiction that the lawmaker could have willed no wrong.
‡To look more closely into the matter, we may note several phenomena as sources of legal positivism. In periods of philosophico-ethical uncertainty and barrenness the jurist, who is of course concerned with the practical settlement of legal questions, rightly holds to the positive law that is sure because it is enforced and applied. This is all the more true when the abstract speculations of rationalism have split into increasingly subjective views of various schools.1 At times when no natural order obtains, but, as in Communist Russia, even the national community is viewed as a social mechanism to be organized along engineering lines, positivism may well be congenial.
The predominance of positivism or of the natural law is likewise connected with types of state or forms of government. Royal absolutism provides in itself a more favorable environment for positivism than do liberal democratic states in which the judge is more or less sovereign. Even forms of government are determined by the antithesis of reason and will, for governmental types are differentiated also by their types of legislation.
But the natural law need not stand diametrically opposed to the positive law, nor has such an opposition always existed in history. Natural law and positivism are, indeed, directly opposed to each other. But natural law and positive law are, as the Christian doctrine of natural law expresses it, directed immediately to each other. The natural law calls imperatively for specification by positive enactments, even though it is at the same time the measure and guideline of the positive law. It requires the positive law; or, as the Christian tradition affirms in an apt distinction, it requires human law, i.e., enactment by earthly authority. In this question of the relationship between natural law and positive law the schools of natural law differ as much as they do over principles. For the Sophists as well as for Rousseau’s individualist natural law the positive law was the direct opposite of the law of nature. The positive law, since it served to secure the interests of the ruling class, was even materially opposed to the natural law. The democratic revolution was the first to make its natural law the exclusive law. The natural law of rationalism believed that, from principles that varied from time to time, a materially complete system of law could be deduced, which thereupon needed but the formal legal decree to become also positive law.
The natural law of the philosophia perennis, on the other hand, contains but a few universal norms and forgoes deductive extremes. It states explicitly that in the normative sciences certainty and necessity decrease in proportion as deduction moves farther away from the first self-evident principles. It has so strong a feeling for the great blessing of a secure and reliable legal order, which it considers a most essential element of the common good, that it regards as non-binding only that positive law which has been changed into non-law by the prohibitive norms of the natural law. Of course, it accords the permissive natural law and equity their proper place. It is revolutionary only in respect to the law that has become materially immoral. Its attitude toward the imperfections of the positive law is merely reformist. It may with some exaggeration be called a skeleton law. It determines what positive arrangements, in themselves capable of being willed in given historical circumstances, can be right. Thus it does not affirm that private ownership of capital is wrong, or that the attainment of just wage claims by means of a strike (break of contract) is wrong when state protection of labor is lacking. Nor does it assert that dictatorship is intrinsically wrong, since dictatorship becomes wrong only through the misuse of the dictatorial power that for the time being is historically necessary, just as it does not pronounce parliamentary democracy to be inherently wrong. Nor, finally, does it declare every war unjust. Yet it does say that, where no fault of the owner exists, complete expropriation without compensation is unjust. It does declare that the general strike for the illegitimate achievement of the rule of the proletariat is wrong. And it does say that disregard of the natural rights to life and to the necessary liberties of the person is wrong, irrespective of by whom and under what circumstances they are infringed.
The natural law calls both for the positive law and for the lawmaker. To begin with, only the first principles and proximate conclusions (Decalogue) are immediately evident and epistemologically necessary. The theoretical reason proceeds from the particular, which is given in sense perception, to the general. Therefore its knowledge bears the stamp of certainty and necessity far more than does that of the practical reason. The practical reason proceeds from the general principle to the singular, to the contingent, to the multiplicity of possible means and intermediate ends in a world which is incessantly changing in virtue of the actions of others and one’s own development, although the higher end, e.g., the common good, remains ever the same. Consequently the more the practical reason descends from the principles to the further conclusions and comes to apply them to increasingly more concrete situations of fact, its knowledge becomes more uncertain, variable, and questionable in application.2 St. Thomas rightly observes that “to suitably introduce justice into business transactions and personal relations is more laborious and difficult to understand than the remedies in which consists the whole art of medicine.”3 Owing to this very uncertainty, men stand in great need of the positive norm which derives and determines what is to be inferred from the general principle, regard being had for the national character and the concrete historical situation. Without such a positive norm no certainty and no order at all could arise in view of the number and diversity of the deductions. Above all, everyone who has not succumbed to rationalism and does not regard men as purely thinking and inferring beings knows how great a danger reason runs of being misled by passions when it comes to applying norms to one’s own as well as to opposing interests. He also knows how easily the voice of conscience is drowned out by the tempestuous demands of selfishness. An authoritative determination of the conclusions is plainly needed in order that these, as norms which emanate from authority and demand obedience, may be able to support conscience and reason.
For the same reasons the natural law as well as what is derived from it requires also a positive, earthly sanction, which it does not of itself immediately possess. Indirectly, of course, it does have a sanction. Every people that disregards the laws of moral living is doomed to deterioration and to destruction. Justice remains the foundation of the state, and world history continues to be world judgment. Yet an immediate sanction is needed, a direct threat of force. The menace to order is inherent in the imperfection of all that is human, in the disordered vital impulse and immoderate instinctive drives of individuals and their groups and communities.4 The propensity to disorder which is found in man and his associations is just as strong as, nay even stronger than, the rational longing for ordo. All this calls for a positive ordering and safeguarding of human existence and welfare at the hands of a concrete power. The philosophia perennis does not subscribe to the unfounded optimism of Rousseau’s idea of natural law. It is aware of the demonic element in man’s nature, of the dark forces which produce disorder and destruction. Even though, for example, the natural law forbids theft, there is need of the positive penal law which attaches the penalty as a legal consequence to the actual fact of theft. Justice determines what this penalty is in the light of the principle of proportionateness; and prudence aids in its determination by drawing upon the principle of suitableness of means to the end and upon the requirements of education. For punishment is not an end in itself: its object is requital (iustitia vindicativa) as well as deterrence and education.5
The special form of the virtue of prudence for the lawmaker consists not only herein, but also in deriving the positive norm from the principles with due regard for concrete circumstances. St. Thomas, it will be recalled, repeatedly mentions the function of circumstances in determining the reasonableness of a law. “The execution of justice, in so far as it is directed to the common good, which is part of the kingly office, needs the guidance of prudence. Hence these two virtues—prudence and justice—belong most properly to a king,” i.e., in his principal function of lawmaking.6 For prudence combines the knowledge of general principles with the knowledge of particulars which are the matter of action, since it governs the right choice of means for attaining the end.7 The prudence of the lawmaker is the most perfect species of prudence, and it is compared to the prudence of subjects as mastercraft to handicraft.8
It is thus sufficiently established that all positive laws should in some way be derivations from the natural law or determinations of it. But this does not mean that every positive law which is not a correct derivation or determination of the natural law is therefore not binding and is devoid of obligation. Only those positive laws are purely and simply non-obligatory which command one to do something that in itself is immoral and unjust. To this category belong laws that are at variance with the prohibitive precepts of the natural law. There is nothing revolutionary about this; it is something self-evident. Scarcely anybody will regard as right a law which allows assassination, adultery, or perjury. Few will call the early Christians contemners of law because they refused obedience to the pagan laws which prescribed sacrifices to idols.
On the other hand, an unjust law (e.g., a tax law which is in conflict with the principle of justice and proportionateness) is not solely on that account devoid of obligation. An unjust law is not forthwith an immoral law in the strict sense, that is, a law which prescribes a sinful action. In cases of this kind the maintenance of even an imperfect ordo takes precedence over resistance to a particular unjust law. The natural law is, of course, a norm for the lawmaker. Such a view has been held by nearly all philosophers of law, including the founders of the modern theory of sovereignty, Bodin and for a time even Hobbes. Yet a positive law which is certainly unjust but does not contradict the natural law in its prohibitive norms does not give to judges and other public officials, whom the constitution obliges to apply and execute the law, or to the subjects of the law a right to consider the law non-binding and invalid. Even a tax law which agrees neither with distributive justice nor, say, with the principle of expenditure in the general interest does not justify a person in defrauding the revenue. The natural-law principles of obedience and truthfulness here again take precedence. The proper remedy is not disobedience but use of the means provided by the constitution. Since, however, the prohibitive precepts of the natural law have precisely the function of protecting the social order in its deepest foundation, a positive law that commands something which is in itself unjust and immoral must be regarded as non-law.9 When little or no respect any longer exists for any authority; when marriage generally ceases to be differentiated from concubinage and promiscuity; when the honor of one’s fellow citizen is no longer respected and oaths no longer have force, then the possibility of social living, of order in human affairs, vanishes altogether.
So far as the other norms of the natural law (ius naturale permissivum vel praecipiens) are concerned, the positive law is free in its efforts to give effect to these precepts. For in this case questions of national character, suitableness of means, circumstances, and forms of government are decisive. Here, in other words, the prudence of the lawmaker is the decisive factor. This prudent reserve of the traditional natural law (ius naturale perenne) also implies that there are no points of irreconcilable opposition between the natural law and the historical school of law: the two can and should complement each other.
Some examples may serve to illustrate this. The institution of private property is at the very least in accordance with the natural law. But this does not mean that severe restrictions on the use of property, or even expropriations for reasons of general welfare, are absolutely contrary to the natural law. Nor does it mean that the Roman law idea of property or the feudalist or capitalist systems of ownership pertain to the natural law. It involves merely the directive to the lawmaker to fashion the actual order of ownership in such a way that property may here and now be qualified to perform (for the individual person, for the family in general, and for most of the members of the nation) its natural-law social function in keeping with the national character and the stage of economic development. The property system of private capitalism with its unrestrained freedom of ownership, with its mobilization of all real property, with its tendency toward giant corporations and trusts, and with its division of each people into a relatively few “haves” and a great many “have-nots,” has been for a long time in no position to perform this function. Taking their stand on the natural law, and often enough in prophetic loneliness, Catholic social reformers since Bishop von Ketteler (1811–77), and even since the romantic movement, have been making this clear in their struggle against economic liberalism. They have also been at pains to point out that the liberty of the propertyless is largely a fiction. To save the family they have demonstrated its right to property as a material substratum of its biological and moral existence. Furthermore, it was owing to its individualism that the Roman people fashioned its positive institutions of property along individualist lines. It was in accordance with the corporative spirit of the German people, however, to fashion in Germanic law a substantially different system of property, one which imposed heavy obligations upon owners, and included specific forms of joint ownership (e.g., in the apportionment of the returns of property among many joint claimants), and especially to treat personal and real property according to separate forms. Hence Bishop von Ketteler, the adherent of natural law, in his proposals for social reform significantly called for the restoration of Germanic law. The positive institutions of property do not have the character of something holy. On the contrary, the common good requires of the lawmaker that he prudently introduce changes into the system of property and adapt it to new economic conditions. A complex commercial and industrial economy obviously calls for a different system of property than is required by a simple natural economy.
The rationalist school of natural law had inferred from its own view of natural law that either absolute monarchy or pure democracy, according to the preferences of the writers and the supposed needs or trends of the times, is alone authorized by natural law. The older natural-law doctrine had never advocated sharply defined ideal governments of this sort. Its ideal government was the system of mixed government, which in any event included the participation of the people.10 St. Thomas holds that the constitution must be suited to the character of the people and to its moral vigor. ‡An earnest, moderate, and responsible people which cherishes the general welfare may with full right govern itself through republican institutions and freely elected officials.11 Here indeed the natural-law principle, salus populi (taken concretely in the sense of an individual people in its historical peculiarity) suprema lex,12 is valid, and not the positivist axiom which declares that the will of the prince is the supreme law. Thus the Christian natural law has never indulged in the mania for deduction which characterized rationalism. On the contrary, it has been able to take into account the peculiarity of individual peoples and their legal genius, the course of their historical development, and their economic evolution. For only the eternal structural laws of the social life of man as such are of natural law, not the concrete architectural form. The stylistic variation of the art-forms of individual peoples is no disproof of the eternal laws of beauty in art.
The natural law calls, then, for the positive law. This explains why the natural law, though it is the enduring basis and norm of the positive law, progressively withdraws, as it were, behind the curtain of the positive law as the latter achieves a continually greater perfection. This is also why the natural law reappears whenever the positive law is transformed into objective injustice through the evolution and play of vital forces and the functional changes of communities.
For the same reason the practical jurist is generally satisfied with the theory and exclusive application of the positive law. “Our quarrel does not turn on the thing, but on a word: on the meaning in which we use the word ‘law.’ We term law only the positive norm which emanates from the will of the state. What you call natural law we consider ethics, the moral foundations of law which we also acknowledge” (H. Ermann). Natural law is viewed simply as non-applicable law, as devoid of force in the legal sense. But such a view is altogether inadequate. In the first place, it mistakenly presupposes the completeness of (the lack of gaps in) the positive law. Next, it does not square with all legal systems. It stems rather from a politico-legal conviction that, since the judge is bound to apply the positive law, he should not meddle with the function of the legislator whose express duty it is to realize justice. In states where judicial supremacy prevails (in ancient Rome, in medieval German law, in countries of the Anglo-Saxon common law)13 the judges’ ruling is directly creative of law. Certainly these judges appealed and still appeal precisely to the natural law or natural justice. Finally, as has already been indicated, even the positive law frequently refers to the natural law, especially under the form of equity.
‡It seems that, with regard to the matter of validity, two things have to be distinguished: the validity of law which is related to the order of mere existence (practical and historical factuality) and the validity of law which is related to the order of essence (the metaphysical order). The positive law has validity to the extent that it is promulgated by the duly constituted lawmaker as his factual will. The natural law has validity independently of its embodiment in a factual volitional act. It is thereby valid at least for the lawmaker. Whether and to what extent it binds the judge or has validity for him is more a question of the constitution of the state: it depends rather upon the public-law principle of the division of powers. According to this principle the judge, i.e., the judicial power, has only to apply the laws or the law of the land. Yet it would be decidedly narrow and illogical to exclude natural law from the laws, and to contend that only such laws are meant as are duly enacted in conformity with the formal legislative procedure established by the constitution without any regard to matter and content, to what is intrinsically just or unjust, i.e., without regard to the natural law. Under constitutional government bulwarked by a bill of rights there exists indeed a strong presumption of law and of right that all laws enacted in keeping with constitutional procedure are not out of harmony with the natural law. It is from this assumption that such laws derive not only their factual enforceability but also their ultimate validity before conscience. Nevertheless this presumption is precisely what it means, a practical device which in particular circumstances does not exclude the duty of the judge to invalidate or not to apply a certain positive law which is clearly at variance with the natural law. In any event the prohibitive precepts of the natural law bind even the judge.14
Under constitutional, free government with the added safeguard of a bill of rights there thus exists a strong presumption that the positive law is a determination and derivation of the natural law. For this reason and also because of the consequent de facto legal peace, which enables and permits men to accept without further scrutiny the order of positive law, the idea of natural law remains as it were latent. But it makes itself felt whenever the positive law, in itself or in the eyes of a large number of people, appears to be in conflict with the natural law. Then the primordial rights of the person, the family, and the national group stand forth with elemental force against the power of the state, which develops into tyranny by denying the foundations of political community, its own moral root: the natural law. But this is juridically permissible and can meet with ethical approval only if the natural law is real, valid law; otherwise such disobedience toward the positive law could not be approved of. If the old distinction between unlawful sedition and justifiable resistance to the power of the state (i.e., revolution)—a distinction which played such a vital role in medieval legal thought in the form of the common subjection of people and ruler to the law15 —has progressively disappeared in the modern age, this is due to several factors. First, the people take an increasingly greater part in the development of the positive law, in lawmaking as well as in administering and applying the law. Thus is produced a greater unity of law with the spirit of the people. Secondly, interpretation of the written law in accordance with justice and equity is achieved through the ethos of the true judge. Lastly, the world of positive law has been progressively penetrated by the principles and prestige of Christian ethics.16
[1.]Cf. Jacques Leclercq, Le fondement du droit et de la société, p. 57.
[2.]This is the true meaning of certain passages of Aristotle (Ethica Nicomachea, I, 3, 1094b 11–26; II, 2, 1103b 26–1104a 9) and St. Thomas (Ethicorum, II, 2) which are sometimes cited to show that even these weighty authorities did not regard ethics as a science that yields conclusions which are certain. Summarizing what has been said on this subject in the preceding pages, we may affirm that the primary principles and proximate conclusions of ethics, together with their applications to the simplest problems of human living, enjoy a degree of certainty that is either absolute or borders on the absolute. This is evidenced, too, by the agreement between the fundamental prescriptions or presuppositions of the moral codes of primitive and civilized peoples alike. There exists, moreover, a much larger area of human activity in which developed practical reason can attain at least moral certitude, i.e., certainty of a kind that will satisfy the mind of a prudent man, and this area of more remote conclusions includes all the basic and common duties of ordinary life, individual and social. Finally, there is a peripheral area of considerable and elastic dimensions, an area of very remote conclusions consisting of involved, complex, and extremely contingent cases and relationships with which especially the human lawmaker has largely to deal. It is in part with the second category of ethical conclusions, but especially with the third one, that the remarks of Aristotle and St. Thomas have to do. If it is nonsense to hold that the findings of ethics are no more than mere opinions, it is quite as impossible to accept, without the most serious qualifications and reservations, the view of John M. Cooper (except perhaps in the matter of private ownership) that “ethics is not an exact science. Its major conclusions are woven of probabilities. Moreover, in all ethical discussions of larger problems, such, for example, as the right or desirability of life, of truthfulness, or of property ownership, our final practical ethical judgments must be arrived at after a careful weighing of the prospective or actual gains to welfare as compared with the prospective or actual losses” (“Contraception and Altruistic Ethics,” The International Journal of Ethics, XLI , 459). Cf. Charles C. Miltner, C.S.C., op. cit., p. 7; Stanley Bertke, op. cit., 63–73; Michael Cronin, The Science of Ethics, I, 21–25, 127–74.
[3.]Ethicorum, V, 15, cited by Deploige, op. cit., p. 314.
[4.]Cf. in general Miriam Theresa Rooney, Lawlessness, Law, and Sanction. The Catholic University of America Philosophical Studies, Vol. XXXIV (Washington, D.C.: Catholic University of America Press, 1937). It is important to note, in connection with the intrinsic sanction attached to the natural moral law, that neither ignorance nor good faith on the part of either individuals or entire societies suffices to ward off the harmful psychological, moral, social, and often physical consequences of actions that are in themselves bad that are violations of the natural moral law. The invincible ignorance, good faith or sincerity of individuals and groups provide the basis for the weighty and often disconcerting distinction between objective wrong and subjective guilt, between material sin and formal sin and hence they serve to excuse one from formal guilt in the sight of God. Yet certain consequences of evil acts are inexorable; they lie in the nature of things. They are the inescapable penalties for the want of deep and correct insight into, and faithful adherence to, the conditions fixed by nature, and ultimately by nature’s Author, for human individual and social development and happiness. Furthermore, they are the needed spur to a reconsideration of the moral quality of actions hitherto regarded as good; they constitute necessary and salutary incentives to moral reform as the indispensable means to genuine and rounded human progress; and they give the lie to the senseless but oft-heard saying, “There is nothing wrong or bad but thinking makes it so.” An excellent illustration of this point is furnished by the widespread practice of positive contraception or artificial birth control, which, objectively, as a deliberate perversion whereby the essential order between the sex act and its primary end is destroyed (as in final analysis nothing but mutual masturbation), is intrinsically immoral and therefore justifiable under no circumstances whatsoever. Now, even if we largely grant invincible ignorance and good faith to the non-Catholic masses and their moral leaders regarding this rather remote conclusion from the primary principle of the natural moral law (on the possibility of the invincible ignorance of some Catholics in this matter, cf. Stanley Bertke, of. cit., pp. 97 ff.), will the wedge-principle in ethics cease to operate? Will birth rates cease to fall or populations to decline? Will the various and complicated untoward economic, social, political, international, and interracial consequences of a widespread practice of artificial birth control be avoided? Will men more readily master the sexual part of their nature and more easily subject it to reason? Will the consequent small family really promote the moral growth of parents and the moral education of children? Will the moral fiber of individuals and societies be strengthened? Will the mounting pleasure complex be checked? Will the principle that the end justifies the means, the implicit assumption mostly underlying the acceptance and defense of positive contraception (as also of eugenic sterilization, therapeutic abortion, artificial insemination as usually practiced, euthanasia, and the like), be restricted in its applications to this single case? To ask these and other pertinent questions is to answer them. Whether in good faith or in bad faith, a society addicted to artificial birth-control practices will inexorably pay the terrible penalties of its contravention of the natural moral law, first indeed in subtle ways, and then more and more openly and upon an ever vaster scale. It is a mere question of time.
[5.]For a thorough and severe criticism of the notion of punitive justice, apparently accepted here, as confused, sentimental, irremediably obscure, and unnecessary, see Jacques Leclercq, Les droits et devoirs individuels. Part I, Vie, disposition de soi, pp. 82–96: social self-defense and emendation of the guilty person provide a sufficient basis for the legitimacy of punishment, which may be reparational, repressive (personal and exemplary), and educational. For an exposition of the dominant scholastic view of punishment in terms, rightly or wrongly, of the philosophy of St. Thomas, cf. George Quentin Friel, O.P., Punishment in the Philosophy of St. Thomas and among Some Primitive Peoples. The Catholic University of America Philosophical Studies, Vol. XLVII (Washington, D.C.: Catholic University of America Press, 1939).
[6.]St. Thomas, Summa theologica, IIa IIae, q.50, a.1 ad 1, 3.
[7.]Cf. ibid., q.47, a.6, 15.
[8.]Cf. ibid., q.50, a.1 f.
[9.]Why may society never demand from one of its members an action that is unjust, immoral, sinful? Because “the reason for the existence of society is to aid in developing men in accordance with their human nature, and because sin is that which is contrary to the requirements of human nature. To sin is to act as though one were not a man, to go counter to one’s nature as a reasonable being, to deny one’s humanity” (Jacques Leclercq, Le fondement du droit et de la société, p. 335).
[10.]In a long and temporarily discontinued series of penetrating and diffuse (and also somewhat confusing) articles on “The Theory of Democracy” in The Thomist (Vol. III, July, 1941–Vol. VII, January, 1944), Mortimer J. Adler and Walter Farrell, O.P., challenge some of the traditional conclusions of natural-law political thinking. The authors are wholly intent upon establishing their proposition that “democracy is, on moral grounds, the best form of government,” and in reformulating the basic problem of the classification of states. Cf. ibid., III (1940), 398.
[11.]Cf. St. Thomas, Summa theologica, Ia IIae, q.97, a.1, quoting St. Augustine. “All should take some share in the government, for this form of constitution ensures peace among the people, commends itself to all, and is most enduring. … Accordingly, the best form of government is in a state or kingdom, wherein one is given the power to preside over all, while under him are others having governing powers. And yet a government of this kind is shared by all, both because all are eligible to govern, and because the rulers are chosen by all. For this is the best form of polity, being partly kingdom, since there is one at the head of all; partly aristocracy, in so far as a number of persons are set in authority; partly democracy, i.e., government by the people, in so far as the rulers can be chosen from the people, and the people have the right to choose their rulers” (ibid., q.105, a.1).
[12.]This principle has, however, been all too frequently interpreted and applied in the sense of raison d’Etat, the canon of political non-morality, Machiavellianism, power politics. Cf. Jacques Leclercq, Le fondement du droit et de la société, pp. 295 ff.
[13.]This is scarcely true of modern England itself, where parliament is, at least in theory, legally omnipotent.
[14.]Caution is especially imperative, however, where the remote conclusions of the natural law, where borderline cases are concerned. Is a judge, e.g., bound to condemn a defendant who, though known to the judge to be innocent, is judicially proved guilty? St., Thomas answers yes, but St. Bonaventure teaches the contrary. Cf. Stanley Bertke, op. cit., p. 73.
[15.]Carlyle and Carlyle point out that the general political principles of the Middle Ages were “the supremacy of law, the community as the source of political authority, the limited authority of the ruler, and the contractual nature of the relations between the ruler and the community,” and they rightly insist that the development of these principles was not more than incidentally related to the frequent conflicts which occurred between the temporal and spiritual powers. A History of Mediaeval Political Theory in the West, V, 438; see especially pp. 441–74.
[16.]It is a pleasure to recommend to the law student, and to practicing lawyers as well, the mature and balanced volume of William Francis Clarke, The Soul of the Law (Boston: Bruce Humphries, 1942).