THE NATURAL LAW

A STUDY IN LEGAL
AND SOCIAL HISTORY AND PHILOSOPHY

BY

HEINRICH A. ROMMEN
D R. R E R . POL. (Muenster), D R . J U R . U T R . (Bonn)

TR A N SLA TED BY

TH O M AS R. HANLEY, O.S.B., Ph.D.

St. M a rtin ’ s College
Lacey, Washington

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 Translator1s Preface

T hepresent volume is a translation of Die ewige Wiederkehr des

Naturrechts (Leipzig: Verlag Jakob Hegner, 1936). The English
version, however, amounts to a revised and enlarged edition of
the original work. The author has, at my suggestion, added many
new sections; and he has further made, or consented to, several
alterations in the text itself. Thus the worth and importance of
an already valuable study of the history and philosophical founda­
tions of the idea and doctrine of natural law have been consider­
ably enhanced, especially for readers of the English-speaking
world.
The studies and activities of the author peculiarly fitted him to
interest himself in the striking phenomenon of the perpetual re­
currence of the natural-law idea. Having completed his studies
and obtained degrees in political economy as well as in civil and
canon law at the universities of Muenster and Bonn, he dedicated
his talents and abilities to the cause of Catholic social action in
Germany during the last fateful years of the Weimar Republic.
From 1929 to 1933 he was head of the Social Action Department,
Central Office of the Volks-Verein at M.-Gladbach. More or less
simultaneously, too, he served as chairman, vice-chairman, di­
rector, and executive vice-president of various other national and
local German Catholic organizations and institutes with educa­
tional, social, and economic aims. In one of these he was closely
associated with such well-known German Catholic students of
society as Oswald von Nell-Breuning, S.J., G. Gundlach, S.J.,
iii
iv T R A N SL A T O R ’S PREFACE

P. Tischleder, Goetz Briefs, Franz Mueller, and the late Theodore

Brauer.
With the advent to power of Hitler and his Nazi party, Dr.
Rommen, who had distinguished himself in the struggle against
the Weltanschauung and concrete aims of growing Nazism, was
closely watched, carefully investigated, and finally arrested. His
thorough knowledge of law, however, besides the care he had taken
to destroy evidence which might prove incriminating in Nazi
eyes, contributed at length, after a month of confinement, to
procuring his release. With his former sphere of activity now
closed to him, he lived henceforth under continual police surveil­
lance. For some years he worked as legal advisor of a Berlin corpo­
ration. It was during this period of stress and personal insecurity
that, in his leisure time, he wrote and published the German
original of the present volume, intended as a protest against the
widespread abuse of the idea of natural law in contemporary
legal and political philosophy generally, but in particular in those
circles most influenced by the Nazi Weltanschauung. It is to this
circumstance that the author attributes what he modestly refers
to as shortcomings of the work.
In 1938 Dr. Rommen at last secured permission to go to Eng­
land. Having then obtained a teaching position in a Connecticut
college, he brought his family to the United States in the same
year. Since that time he has been engaged in teaching, in lectur­
ing, and in writing. An American citizen, he now holds the posi­
tion of professor of political science in the College of St. Thomas,
St. Paul, Minnesota.
Dr. Rommen is the author of numerous scholarly and semi-
popular books, articles for periodicals, and articles for ency­
clopedias in the field of legal and political philosophy. In 1945
appeared his The State in Catholic Thought; a Treatise in Polit­
ical Philosophy (St. Louis: B. Herder Book Co.).
 T R A N SL A T O R ’S PREFACE v

Except in works destined for restricted scholarly circles, the

use of footnotes has been declining in recent years. When scholars
write for the general public, or even for the educated portion of
the public, they are accustomed to omit all scholarly apparatus.
Their reputation is the presumed guaranty of their undocu­
mented statements and of the authenticity of what quotations
they do make. Thus the German original of the present transla­
tion is entirely devoid of footnotes. However, the provenance of
the scattered quotations is almost always indicated by the respec­
tive author’s name in parentheses, and the relatively few specific
references to passages in such works (especially in the case of St.
Thomas Aquinas) are similarly inserted in the text.
Nevertheless, it seemed best, in adapting the volume to the
Anglo-Saxon cultural milieu, to take liberal advantage of the
handy device of the footnote. Wherever it has been practically
possible, all citations and references have been identified and
given in full for those who may wish to check them. But a few
quotations, which could not be readily located, have been re­
tained on the author’s responsibility. Moreover, in view of the
importance of many aspects of the problem of natural law in his­
tory and philosophy, I have considered it desirable, and indeed
eminently worth while, to add on my own responsibility a con­
siderable number of footnotes of a bibliographical, illustrative,
explanatory, and critical nature. It is hoped that the reader will
find them stimulating and helpful rather than distasteful and
impeding; at all events, they can be skipped or ignored at will.
It would not, of course, have been difficult to multiply such foot­
notes, particularly on the bibliographical side; but to overload
the book with footnotes would undoubtedly have been to defeat
the purpose of the author.
Accordingly, apart from perhaps a dozen bibliographical indi­
cations furnished by the author himself and a small number of
VI T R A N SL A T O R ’S PREFACE

precise references to passages in the works of St. Thomas and in

Roman law, the translator must be held responsible for all foot­
notes, bibliographical and other.
An extensive treatment of moral problems from the standpoint
of the natural law or rational ethics often leaves the impression
that ethics, as a branch of philosophy, is quite sufficient to lead
man to perfection and happiness, individual and social. From
such a viewpoint the supernatural order, with its elevation of
man, divine revelation, and divine grace, all too often takes on
the appearance of something artificial or unnatural, something
unnecessary and superfluous. Mature reflection, however, will
show that such an impression is quite unwarranted. Neither as a
science nor as an art is ethics, or the doctrine of the natural moral
law in its concrete applications, able of itself to lead man as he
actually is to his individual and social goal.
In the first place, past and present human experience forces us
to agree with theologians who hold that in the present condition
of mankind divine revelation is morally necessary in order that
the natural moral law itself may be known by the masses of men
with sufficient ease, certainty, and fullness. It is true that by the
light of unaided reason men can know with certainty the more
general and more fundamental principles of right and wrong in
their simplest applications; but for the more remote conclusions
of the natural moral law and for more complicated cases of hu­
man conduct they stand practically in need of some help over
and above natural reason; and such assistance is afforded by
divine revelation. In this sense revelation is morally necessary
for the sure and complete knowledge of the natural law. In addi­
tion to divine revelation itself, an authentic and authoritative
interpreter of both divine revelation and the natural moral law,
the Church, is likewise morally necessary to safeguard and in­
culcate moral truths and values, to apply with sureness explicit
and implicit moral principles to concrete, complex, and changing
 T R A N SL A T O R ’S PREFACE vii
circumstances of human life and activity, and to settle moral dif­
ficulties and doubts that harass even the most learned. This is
true especially in domains where human interests and passions
of great driving power continually urge the acceptance of solu­
tions that are specious but disastrous. It is indeed undeniable
that the great development, refinement, and certainty of rational
ethics in Christian circles owe very much to the extrinsic aids
afforded by divine revelation and Christ’s Church. Surely, as
St. Ambrose, I think, so well expressed it, Non in dialectica voluit
Deus salvum facere populum suum.
But there is much more to the matter than this. Knowledge of
what our duty is is one thing; but, as daily personal experience
teaches every one of us, the actual doing of our duty is quite an­
other thing. As the practical science which, in the light of the
primary moral principle and of human nature adequately con­
sidered, tells men what acts are good and what are evil, ethics
has its great drawbacks. What, then, shall we say of ethics as the
art which seeks to teach mankind an easy and efficacious way of
doing good and avoiding evil? Experience seems to teach clearly
that it is far easier to discover and propagate moral truth than
to generate and generalize moral action. If divine help is morally
necessary for mankind’s adequate and sure knowledge of the
natural moral law, divine assistance is even more necessary for its
due observance. Indeed, the Church teaches that without special
aid or grace from God a person cannot observe the entire natural
moral law for any great length of time.
In the second place, it is a fundamental article of the Christian
faith that man has from the very beginning been gratuitously
elevated by God to an order of existence which totally exceeds
the strict requirements and capacities of his nature. This super­
natural order, with the supernatural goal to which man is
destined, calls for a supernatural principle of knowledge— revela­
tion of both speculative and practical truths—and a supernatural
V lll T R A N SL A T O R ’S PREFACE

principle of activity in man, divine grace in its various aspects

and with its various effects. Hence no system of natural ethics,
however perfect might be man’s knowledge and observance of it,
can meet all the needs of his de facto supernatural elevation and
orientation. As a consequence, divine revelation and divine grace,
besides being morally necessary for the knowledge and observance
of the natural law, are absolutely necessary for the knowledge and
observance of the supernatural obligations incumbent upon man
by virtue of his actual destination to a supernatural end.
But this supernatural order is neither artificial nor unnatural.
Grace does not destroy nature; it presupposes, perfects, and
elevates it. The supernatural order perfects and elevates the
natural order in such a way that the latter is, as it were, integrated
into the former. Yet human nature, unchanged in principle, re­
tains its full value as a source of knowledge of the direction in
which man’s individual and social development, perfection, and
happiness lie. In fact, the Church and its theologians have always
viewed human nature, man’s natural end and inclinations, man’s
natural faculties and their objects, the natural law— in a word, the
natural order— as indispensable sources for determining the
proper lines of human conduct which, with the aid of divine grace
and with supernatural equipment, man must follow in his quest
of his supernatural goal. We can and must distinguish, but with­
out separating, the natural from the supernatural order. Rational
ethics, founded on the natural moral law, preserves, therefore, its
independence and value like any other branch of philosophy. In
this way it performs the valuable function of serving as a basis of
understanding and agreement between Catholics and all those
who fail or refuse, for one reason or another, to recognize con­
sciously their actual and inescapable incorporation into the super­
natural order and their call to actual, full, and living membership
in the authentic Church of Christ.
 T R A N SL A T O R ’S PREFACE xx

In the arduous task of preparing this translation for the

English-speaking world, my requests for assistance met with a
heartening response. The author himself, with unfailing kind­
ness and patience, rendered invaluable help by clearing up
numerous points which sometimes perplex the translator of a
German work. Several other scholars also contributed valuable
suggestions in regard to certain thorny and involved questions
with which I have dealt: Rev. Dr. Francis J. Connell, C.SS.R., of
the Catholic University of America; Rev. Dr. Francis B. Donnelly
of the Seminary of the Immaculate Conception, Huntington,
New York; Rev. Dr. John J. Galvin, S.S., of St. Edward’s Sem­
inary, Kenmore, Washington. But I owe most to the courteous
generosity of several of my confreres and colleagues. Rev. Leo
P. Hansen, O.S.B., prepared the first rough draft of the present
translation before he left to serve as chaplain in our armed forces.
Rev. Meinrad J. Gaul, O.S.B., and Rev. Luke O’Donnell, O.S.B.,
gave unstintingly of their time and special knowledge throughout
the preparation of the manuscript. As on a former occasion, how­
ever, it is to Rev. Matthew W. Britt, O.S.B., that I am most pro­
foundly indebted. Expertly and meticulously he labored over the
entire manuscript and strove mightily to impart a degree of
readability to the translation. In many other ways, too, his pa­
tience, knowledge, interest, and encouragement made it possible
to bring to a conclusion a task which, it is now easy to feel and
see, should have been left to another.

Thomas R. Hanley, O.S.B.

St. Martin’s College
Lacey, Washington
 Contents

PAGE
T r a n s l a t o r ’ s P r e f a c e ................................................................................ iii

PART i

HISTORY OF T H E IDEA OF N A T U R A L LAW

CHAPTER
I. T h e L e g a c y o f G r e e c e an d R o m e ................................................... 3
II. T h e N a t u r a l L a w in t h e A g e o f S c h o l a s t ic is m . . . 34

III. T h e T u r n in g P o in t : H ugo G r o t i u s .................................................. 70

IV . T h e N a t u r a l L a w in t h e A g e o f I n d iv id u a l ism an d
R a t i o n a l i s m ...................................................................................................... 75
V. T h e T u r n in g a w a y f r o m N a t u r a l L a w ................................ n o

VI. T h e V ic t o r y o f P o s i t i v i s m .....................................................................12 4
V II. T he R eappearan ce of N atural L a w ....................................... 13 5

part 11

PHILOSOPHY AND C O N TE N T OF T H E N A T U R A L LAW

VIII. B e in g a n d O u g h t n e ss ............................................................................ 161

IX . I n t e l l e c t an d W i l l .................................................................................... 17 5

X. T h e St r u c t u r e o f the S c i e n c e s .......................................................18 3
XI. T he N ature of L aw ............................................................................. 191

XII. M o r a l it y a n d L a w ....................................................................................202

XIII. T h e C o n t e n t o f t h e N a t u r a l L a w ................................................ 2 15
X IV . N a t u r a l L a w a n d P o sit iv e L a w ........................................................247

XV. C o n c l u s i o n .......................................................................................................... 264

I n d e x .......................................................................................................................... 269
xi
 Part One

H IST O R Y OF T H E IDEA OF N A T U R A L LAW

 C H A PTER I

The Legacy o f Greece and Rome

T hedoctrine of the natural law is as old as philosophy. Just as

wonder,1 according to Aristotle, lies at the beginning of philos­
ophy, so, too, is it found at the beginning of the doctrine of
natural law.
In the early periods of all peoples the mores and laws, undif­
ferentiated from the norms of religion, were looked upon as
being exclusively of divine origin. The order according to which
a people lives is a divinely instituted order, a holy order. This
is true of the ancient Greeks, among whom all law was stamped
with the seal of the divine. It likewise holds good for the early
Germans: their law bore in the primitive period a distinctly
sacred character. Nor is it any less true of the Roman people,
whose legal genius enabled its law twice to become a world law.2
For among the Romans, too, law in the earliest times was divine
law. Moreover, even the later period, when the Romans had al-
1 “ It is owing to their wonder that men both now begin and at first began to philoso­
phize; they wondered originally at the obvious difficulties, then advanced little by little
and stated difficulties about the greater matters, e.g., about the phenomena of the moon
and those of the sun and of the stars, and about the genesis of the universe. And a man
who is puzzled and wonders thinks himself ignorant (whence even the lover of myth is in
a sense a lover of Wisdom, for the myth is composed of wonders); therefore since they
philosophized in order to escape from ignorance, evidently they were pursuing science
in order to know, and not for any utilitarian end” (Metaphysial, A. 2, 982b; trans. W. D.
Ross).
2 That is, in the third and fourth centuries of the Christian era, after all the free in­
habitants of the Roman Empire had been made citizens (212), and in the Middle Ages
through its incorporation in the canon law of the Church, its systematic study in the
universities, and its subsequent reception in Western Europe. Cf. Roscoe Pound, “ The
Church in Legal History,” in Jubilee Law Lectures, 1889-1931). School of Law, The
Catholic University of America (Washington, D.C., 1939), p. 25, quoting Rudolph von
Jhering. Of considerable value, especially for the historical portion of the present volume,
is Jerome Hall, Readings in Jurisprudence (Indianapolis: The Bobbs-Merrill Co., 1938).
3
4 T H E N A T U R A L LAW

ready hit upon the distinction between strictly sacred law (fas)
and profane law (ius), still afforded clear evidence of the sacred
origin of Roman law: the pontifices remained the dispensers and
custodians of the law until Roman legal reason emancipated
itself from this secret law of the priests.
This theological cast of all primitive law has two character­
istics. Such law is essentially unchangeable through human ordi­
nances, and it has everywhere the same force within the same
cultural environment.
The idea of a natural law can emerge only when men come to
perceive that not all law is unalterable and unchanging divine
law. It can emerge only when critical reason, looking back over
history, notes the profound changes that have occurred in the
realm of law and mores and becomes aware of the diversity of
the legal and moral institutions of its own people in the course of
its history; and when, furthermore, gazing beyond the confines
of its own city-state or tribe, it notices the dissimilarity of the in­
stitutions of neighboring peoples. When, therefore, human rea­
son wonderingly verifies this diversity, it first arrives at the
distinction between divine and human law. But it soon has to
grapple with the natural law, with the question of the moral
basis of human laws. This is at the same time the problem of
why laws are binding. How can laws bind the conscience of an
individual? Wherein lies, properly speaking, the ethical founda­
tion of the coercive power of the state’s legal and moral order?
Closely connected with these problems is the question of the
best laws or best state, a matter which from the time of Plato has
engaged the attention of nearly all exponents of the great systems
of natural law. Before long, however, a related idea made its
appearance. This was the view that the tribal deities are not
the ultimate form of the religious background of reality. For
if an eternal, immutable law obliges men to obey particular laws,
 T H E LEG ACY OF GREECE AND ROME 5
behind the popular images of tribal deities exists an eternal, all­
wise Lawgiver who has the power to bind and to loose.8

It is quite understandable, then, that the philosophical con­

ception of the natural law should have made its first appearance
in the area of Western culture among the ancient Greeks. This
dynamic people was endowed with a penetrating critical intelli­
gence, with an early maturing consciousness of the individual
mind, and with great power of political organization. Indeed,
Western political philosophy likewise originated in this gifted
people.
It is a remarkable fact that at the very beginning of the Greek
philosophy of law (or rather of the laws), and therewith of the
natural law, a distinction came to light which has survived down
to the present time, a distinction between two conceptions of
the natural law. One is the idea of a revolutionary and individ­
ualistic natural law essentially bound up with the basic doctrine
of the state of nature as well as with the concept of the state as
a social unit which rests upon a free contract, is arbitrary and
artificial, is determined by utility, and is not metaphysically
necessary. The other is the idea of a natural law grounded in
metaphysics that does not exist in a mythical state of nature
before the “ laws,” but lives and ought to live in them—a natural
law which one would fain, though somewhat ineptly, style con­
servative. It is further significant that the notion of God as
supreme Lawgiver is intimately connected with the latter con­
ception. Both of these tendencies are already plainly visible in
the first Sophists and in Heraclitus, the great forerunner of Plato.
Heraclitus of Ephesus (cir. 536-470 b . c .) is famous for his thesis
that “ all things flow; nothing abides.” But this ceaseless changing
3 See, in general, Otto Karrer, Religions of Mankind, trans. by E. I. Watkin (New York:
Sheed and Ward, 1936), chaps. 1 and 2.
6 T H E N A T U R A L LAW

of things led him directly to the idea of an eternal norm and

harmony, which exists unchangeable amid the continual varia­
tion of phenomena. A fundamental law, a divine common logos,
a universal reason holds sway: not chance, lawlessness, or irra­
tional change. Natural occurrences are ruled by a reason that
establishes order. Man’s nature as well as his ethical goal con­
sists, then, in the subordination or conformity of individual and
social life to the general law of the universe. This is the pri­
mordial norm of moral being and conduct. “ Wisdom is the fore­
most virtue, and wisdom consists in speaking the truth, and in
lending an ear to nature and acting according to her. Wisdom is
common to all. . . . They who would speak with intelligence
must hold fast to the (wisdom that is) common to all, as a city
holds fast to its law, and even more strongly. For all human laws
are fed by one divine law.” 4 The laws of men are but attempts
to realize this divine law. Wherefore, declares this conservative
aristocrat, the people ought not to resist the laws, which to him
are the embodiment of the divine law. On the contrary, “ the
people ought to fight in defense of the law as they do of their city
wall.” 5 Thus in the diversity of human laws (not beyond them)
there flashed upon Heraclitus the idea of an eternal law of nature
that corresponds to man’s reason as sharing in the eternal logos.
The variety of human laws does not exclude the idea of the nat­
ural law. For through the contingency and diversity of human
laws rational thought perceives the truth of the eternal law,
whereas sense perception— the eye and the ear— notices only
what is different and unlike. With Heraclitus, the “ Obscure Phi­
losopher,” the thinker who speaks in obscure symbols, the idea of
the natural law for the first time emerged as a natural, unchange­
able law from which all human laws draw their force.

* Fragments 112-14, in Charles M. Bakewell, Source Book in Ancient Philosophy (New

York: Charles Scribner's Sons, 1907), p. 34.
s Fragment 44; ibid., p. 31.
 T H E LEG ACY OF GREECE AND ROME 7
Heraclitus’ doctrine had a practical aim. It was intended to
stress the value of the laws and their binding force against the
fickleness of the uncritical masses. Prone to novelties of all kinds
and woefully lacking in powers of discrimination, the masses
were subject to capricious fluctuations of opinion. They thus fell
easy prey to the demagogy of the Sophists.
It is no easy matter to judge the Sophists fairly. For one thing
their teachings have come down to us in a very fragmentary form
and are known to us chiefly from the dialogues of Plato, their
great adversary. Moreover, as popular orators with a leaning
toward demagogy, they were fond of oversimplified slogans and
paradoxical statements. This earned for them, among posterity,
the sinister reputation of philosophical ropedancers, rationalistic
revolutionaries, and contemners of the law. For this reputation
Plato has been particularly responsible. But this judgment is, to
say the least, far too harsh. That the Sophists had of necessity to
appear to the Greeks as revolutionary rationalists is explained, on
the one hand, by their reckless criticism of contemporary social
institutions and their cynical skepticism in political matters, and,
on the other, by the high esteem in which their opponents held
the laws and the polis, or city-state.
Their laws were the pride of the citizens of the Greek polis,
and the Sophists were mostly foreigners. Heraclitus had looked
upon the laws as equal in worth to the walls of the city. The
philosophers spoke of the nomoi, or laws, with the greatest re­
spect: the peoples who had no polis were to them barbarians.
Hence it happened, too, that Socrates, despite his distinction be­
tween what is naturally right and legally right, pronounced the
laws of Athens to be “right” without qualification. The citizens,
consequently, were under obligation to obey them, even as he
also obeyed them to the bitter end. For Plato likewise the laws
of Athens were for the most part something inviolable. He re­
garded the social order founded upon them as good, even if
8 T H E N A T U R A L LAW

capable of improvement; never did he term it bad. Therefore to

these aristocrats in political outlook as well as in thought, the
social criticism of the Sophists necessarily passed not only for an
attack upon the foundations of a particular order of a particular
polis, but also for a malicious assault upon the right order of the
polis itself.
Moreover, in point of fact the Sophists had much in common
with the revolutionary natural-law ideas of the eighteenth-
century Enlightenment, especially with Rousseau’s doctrine and
its reckless criticism of existing society. In the case of the con­
servative natural law (if one wishes to speak of a political tend­
ency) the distinction between natural and positive law served to
justify and improve the existing positive law. It was, however,
the tendency, an avowedly political tendency, of the natural-law
concept of the Sophists to point out, by contrasting the current
positive law with what is right by nature, not merely the acci­
dental need for reform of the laws but the substantial wrongness
of the laws. T o the Sophists the laws were not venerable because
of tradition or by reason of having stood the actual test of life in
the city-state: they were artificial constructs and served the inter­
ests of the powerful (Thrasymachus). Thus the laws possessed
no inherent value, for only what is right by nature can have such
value, and to this the Sophists were continually appealing. They
did not deny, therefore, the form of the natural law and of what
is moral by nature. They merely brought out the sharp contrast
between the prevailing order of the city-state and the natural
law as they preached it, and they ridiculed Socrates who looked
upon the laws of Athens as purely and simply “just.” Callicles,
who was the first to advance the thesis that might makes right,
wished thereby to give expression to a fact which he was criti­
cizing. This was that the ruling classes, while they declared their
laws, i.e., those which worked to their advantage, to be naturally
just, were misusing the idea of truly natural justice, and were
 T H E LEGACY OF GREECE AND ROME 9
desirous only of subjecting the people to their class interests.
By contrasting, in the light of their social criticism, what is
naturally right with what is legally right, the Sophists attained at
this early date to the notion of the rights of man and to the idea
of mankind. The unwritten laws, said Hippias, are eternal and
unalterable: they spring from a higher source than the decrees
of men. T o Hippias’ way of thinking, all men are by nature rela­
tives and fellow citizens, even if they are not such in the eyes of
the law. Therewith the distinction between Greeks and bar­
barians, fundamental for Greek cultural consciousness, vanished
into thin air. “ God made all men free; nature has made no man
a slave” (Alcidamas). The whole ethical and legal foundation
was thereby taken away from slavery, which was in turn the very
basis of the Greek social and economic system. Nevertheless Plato
held fast to the institution of slavery, and Aristotle was ever striv­
ing to justify it by means of his theory that certain men are slaves
by nature.

Three ideas, heavily charged with social explosives for the

world of Greek culture, were thus put forward by the Sophists
as part and parcel of the natural law. These ideas were thence­
forth to be subjected to a ceaseless reprocessing in the history of
the mind. Tim e and again they were to serve revolutionary
thinkers as molds and vessels into which these could pour their
revolutionary emotions, their schemes for reform, and their politi­
cal aims. The first idea was that the existing laws serve class
interests and are artificial constructions. Only what is naturally
moral and naturally right can be properly called moral and right.
Next came the idea of the natural-law freedom and equality of all
human beings and, as a consequence, the idea of the rights of man
as well as the idea of mankind, the civitas maxima, or world com­
munity, which is superior to the city-state. According to the third
idea, the state, or polis, is nonessential: it owes its origin to a
io T H E N A T U R A L LAW

human decision, i.e., to a free contract, not to a necessity of some

kind. The political organization of man must therefore have
been preceded by a state of nature (portrayed optimistically or
pessimistically), in which the pure natural law was in force. Ac­
cording to the optimistic view of the state of nature, this law can
in its essential contents be neither altered not abrogated by the
state; in the pessimistic view, which leads to positivism, it is
merged in the will of the state. But after the lofty flight of specula­
tion had been exposed to the needed self-criticism, the successors
of the Sophists fell quickly into skepticism and into a sheer posi­
tivism when the underlying optimistic outlook ran afoul of the
facts. This was, for instance, the case with the Epicureans, who
were the first legal positivists.
The Sophists’ criticism of the positive laws, together with the
rapidly growing prominence of the notion of utility, led Epicurus,
whose sensistic epistemology left no room for metaphysics, to
doubt that anything can be objectively and naturally right.
Utility and pleasure became for him the sole principles of ethics
and law. But since the resultant subjectivism must endanger the
social order and with it the peaceful enjoyment of pleasure, he
inferred from the principle of utility that justice as such is a
chimera, that it rather exists only in agreements which have been
entered into for the prevention of mutual injuries. Justice thus
consists entirely in positive laws. Before men entered into agree­
ments and before there were laws founded upon such agreements,
men had lived in a haphazard manner, like wild beasts, lawlessly.
The state of nature, upon which the Sophists had placed an op­
timistic construction but which they had not particularly stressed,
was thus interpreted in a pessimistic sense in Epicurean circles.
From this, however, sprang also the respect of the Epicureans for
the existing laws as well as their emphasis upon the value of the
legal notions and customary law of individual peoples. The paral­
lelism between the Sophist and Epicurean doctrine on the one
 T H E LEGACY OF GREECE AND ROME 11
hand and, on the other, the natural-law schools of modern times
is quite unmistakable. Rousseau, Hobbes, Pufendorf, Thomasius,
and the adherents of historical schools of law, who variously com­
bine the elements of individual systems, merely repeat and de­
velop these ancient ideas.
The starting point of the Sophists was a criticism of the nomoi
of the Athenian democracy. In their role and guise of popular
philosophers and in their political and skeptical snobbery they
frequently defended the opposite theories. As if the revolutionary
criticism of the nomoi in behalf of slaves and non-citizens, con­
sidered barbarians, and the conservative utilitarianism of Epi­
curus were not sufficiently unsettling, Callicles, if we are to trust
tradition, stood forth as champion of the doctrine of the right of
the stronger, i.e., that might makes right. A pure materialist in
his philosophy, Callicles reached the conclusion that law, such
as obtained in the Athenian democracy, was in reality injustice.
For, he contended, the many who are weak have united to fetter
with the bands of law the few who are strong. But nature teaches,
as a glance at the animal kingdom and at warring states reveals,
that the stronger naturally overcomes the weaker. Natural law,
then, is the force of the stronger. For this snobbish leader of the
oligarchic faction such was the way one could and should get at
the Athenian democracy. But other Sophists, among them Hip-
pias, put forward the demagogic formulas of human rights and of
the freedom and equality of all to achieve the selfsame purpose—
the overthrow of the bourgeois democracy.6

The metaphysical natural law of Plato as well as the more real­

istic one of Aristotle formed the high-water mark of moral and
natural-law philosophy in Greek civilization. Stoicism, on the
other hand, in a remarkable eclectic synthesis of single principles
6 On these ideas of the Sophists, see the excellent discussion of George H. Sabine, A
History of Political Theory (New York: Henry Holt and Co., 1937), pp. 25-34.
12 T H E N A T U R A L LAW

drawn from many philosophers, furnished in its system of natural

law the terminology or word vessels into which the Church
Fathers were able to pour the first conceptions of the Christian
natural law and to impart them to the world of their time.
The danger of skepticism, to which the extreme rationalism
of the Sophists lay exposed, was first clearly perceived by Socrates.
The Sophists’ juggling of ideas and their paradoxes threatened to
dissolve the notion of goodness and morality, just as their ex­
tremist social criticism and their libertarian ideology, directed
in the name of the natural law against law and custom, called into
question the value of the nomoi. Socrates did not merely teach
the essence of goodness and justice by his inductive, question-
and-answer method. Through the thesis that virtue consists in
knowledge, he also showed that there exists a knowable objective
world of such values as goodness, beauty, and justice, and that no
one does evil for evil’s sake but because it somehow, culpably or
through ignorance, appears to him as good. Wherefore knowl­
edge means the contemplation of the idea of justice, and so on.
The daimonion, conscience and its voice, he regarded as a reflec­
tion and testimony of these ultimate values and of the divinely in­
stituted order of the world. Herein lies the significance of Socrates
for the idea of the natural law. It does not lie in his frequently
stressed fidelity to the law, although, to counteract the criticism of
the Sophists, he placed so much emphasis upon the value of the
laws that, out of respect for the law’s function of safeguarding
right, he went so far as to condemn absolutely any disobedience to
a particular unjust law.7

7 On the other hand, Socrates’ older contemporary, the dramatist Sophocles (496-
406 b .c .), has the heroine of the tragedy Antigone declare that her conscience is altogether
clear even though she had deliberately overstepped a law of King Creon by burying her
brother against the royal orders. She defends herself by appealing to a law higher than
any ordinance made by man (11. 450-60):
“ Because it was not Zeus who ordered it,
Nor Justice, dweller with the Nether Gods,
Gave such a law to man; nor did I deem
 T H E LEG ACY OF GREECE AND ROME 13
The great masters of Greece, Plato and Aristotle, also directed
their attacks at the Sophists and their destructive criticism. Plato
and Aristotle were chiefly, though not in the same degree, con­
cerned with goodness and with its realization in the state. Their
interest, however, did not center in the individual. It is quite
common, rather, to speak of both as leaning toward state social­
ism or totalitarianism. For them, then, in accordance with the
idea of order, the first and fundamental aim of justice is not
freedom for its own sake, but order. Freedom is aimed at only
so far as it realizes order. For this reason the law occupied the
foreground of their thought. They were at great pains to discover
and to establish the ethical basis of the laws; not like the Sophists,
however, in the interest of freedom from the laws. The state and
its order as the sphere of morality, as the realization of all virtue,
engaged their attention. This explains their preoccupation with
the best form of state or government, in which the individual,
whom the Sophists made so much of, is swallowed up. If we
should think of the natural law in terms of its long accepted
identification with socio-philosophical individualism, there
would really be little room for the idea of the natural law in
Plato or even in Aristotle.
A deeper penetration into the thought of Plato and Aristotle
will show, however, that they too distinguish between what is nat­
urally just and what is legally just. Nor is this distinction merely
a borrowed formula: it is an integral part of their doctrinal struc­
ture. Yet in the case of both we can observe a certain aversion to

Your ordinance of so much binding force,

As that a mortal man could overbear
The unchangeable unwritten code of Heaven;
This is not of today and yesterday,
But lives forever, having origin
Whence no man knows: whose sanctions I were loath
In Heaven’s sight to provoke, fearing the will
Of any man." (George Young’s translation.)
The validity of this particular use of the higher-law doctrine is beside the point.
»4 T H E N A T U R A L LAW

the “ naturally just,” which is accounted for by the Sophists’ abuse

of this distinction, an abuse which Plato severely censured.
The disciples of Socrates arrived at the notion of something
naturally just by quite another route than the one the Sophists
had taken. They arrived at it by way of the doctrine of ideas and
through teleological thinking. Following in the footsteps of
Heraclitus, Plato acknowledges the world of the senses and the
world of ideas that become manifest in intellectual contempla­
tion. For speculative reason, sense phenomena are the bridge of
memory to the ideas, which dwell and live on in their super­
mundane, heavenly abode. The things of this world are or exist
only so far as they participate in the being of the eternal ideas,
or so far as man in his creative capacity of craftsman, artist,
and especially lawmaker copies these ideas. Here teleological
thinking enters the scene. In the concept which gropes after and
apprehends the essence or the idea of the thing there is contained
at the same time also its end, the completion or perfection of the
idea of the thing. Inversely, too, the mind lays hold of the essence
of a thing by finding the ideal concept which corresponds exactly
to the literal meaning. Hence we speak of the true physician, the
true judge, the true lawmaker, the true law. These two starting
points of Platonic speculation lead then to such conclusions as
that the judge ought to be a true judge, i.e., he ought to complete
in himself the idea of judge. The ideal concept becomes a norm.
So declares the Athenian in Plato’s Laws: “ When there has been
a contest for power, those who gain the upper hand so entirely
monopolize the government as to refuse all share to the defeated
party and their descendants. . . . Now, according to our view,
such governments are not polities at all, nor are laws right which
are passed for the good of particular classes and not for the good
of the whole state. States which have such laws are not polities
but parties, and their notions of justice are simply unmeaning.” 8
* Laws, IV, 715 (Jowett’s translation).
 T H E LEG ACY OF GREECE AND ROME 15
The law should be a true law: one that benefits the common
weal. Therein its idea achieves its completion. Thus Plato con­
trasts the true and proper law with the positive law, and he makes
the former the measure and criterion of justice for the latter.
This true law, this true right, abides in the realm of the ideas
and remains forever the same. On the other hand, the positive laws
change, and they may claim legal force only because and so far as
they partake of the idea of law. Indeed they are but a reflection
of true law. The lawmaker must look up into the realm of the
ideas, where dwells the real essence of the immutable, eternally
valid law. However, philosophers and philosopher-kings, freed
through disciplined thinking from the blinding illusions of the
senses, can alone do this. Moreover, this world of ideas, whereof
the world of sense appears only as an imperfect copy, is kosmos,
or order; it is not akosmia, or disorder. But this order of the ideas
is the pattern for the fashioning of moral and legal conduct in
the present world. The being of the ideas is oughtness for man
who shapes things in accordance with contemplative knowledge,
whether he forms himself or a community unto goodness. Under­
lying all this, of course, is the conception of a human nature with
impaired powers of contemplation. Only the man of disciplined
mind, not the great mass of men, can see intellectually. This doc­
trine is the opposite of the optimism of the Sophists. If Plato, then,
scarcely ever makes use of the Sophists’ antithesis of physis and
nomos, he by no means identifies the natural law, which he recog­
nizes, with the positive law.
The difference between Plato and the Sophists lies elsewhere.
The Sophists started from the freedom of the individual, who had
to be liberated from traditional religious and politico-legal bonds.
For the polis, the state, is not something eternal, nor is its law. It
is mankind that is eternal: the civitas maxima of free and equal
men. In the eyes of Plato, however, the polis and its law were the
indispensable means for realizing the idea of humanity, which
if T H E N A T U R A L LAW

reaches completion in citizenship, in the ethical ideal of the

citizen, of the law-abiding and just man. The state is the great
pedagogue of mankind. Its function is to bring men to morality
and justice, to happiness in and through the moral virtues. Hence
Plato’s thought revolves continually around the idea of the best
state or government. But this is also why he recognizes a natural
law as ideal law, as a norm for the lawmaker and the citizen, as a
measure for the positive laws. His metaphysics and the ethical
system which he built thereon made a natural law possible and
furnished the foundation.

Aristotle passed for centuries as the “ father of natural law.’’

St. Thomas, in that section of his Summa theologica which deals
with law, repeatedly appeals to him as the Philosopher par excel­
lence. Aristotle, however, as should now be clear, was not the
father of the natural law. Nevertheless his theory of knowledge
and his metaphysics have provided ethics, and consequently the
doctrine of natural law, with so excellent a foundation that the
honorific title, “ father of natural law,” is readily understandable.
Plato had totally separated the world of sense perception from
the world of pure ideas, the objects of scientific, necessary, and
true knowledge (universalia ante rem). Aristotle transferred the
idea as the form which determines the formless matter into
the individual (universalia in re). This “ becomes” through the
union of the form (or the essence or the true whatness) with
the matter (or the potency or the possibility) and thus gives ac­
tuality to the individual. The archetype for Aristotle was human
artistic activity: the architect who constructs a house according to
the plan in his mind; the sculptor who molds a statue in accord­
ance with his artistic conception; even organic nature which causes
the plant to grow from the actualizing essential form that exists
in the seed in an incorporeal manner. Aristotle wished to com­
prehend motion, development, becoming. T o him, therefore, the
 T H E LEGACY OF GREECE AND ROME »7
essence, and the perfect expression of it in the individual, is also
the telos, or end. The form is thus the efficient and the final cause
at one and the same time. Applied to the domain of ethics, how­
ever, this means that pure being or the pure essential form is like­
wise the goal of becoming for the man who is to be fashioned by
education into a good citizen. From the essential being results an
oughtness for the individual man. In this way, from the content
of the primary norm, “ strive after the good,” arises the norm,
“realize what is humanly good,” as it appears in the essential form
of man. The supreme norm of morality is accordingly this:
Realize your essential form, your nature. The natural is the
ethical, and the essence is unchangeable.
But a criterion of actions is thereby established. Some actions
correspond to nature, and hence are naturally good; others are
repugnant to nature, and hence are naturally bad. This settled,
Aristotle advances to the distinction between what is naturally
just and what is legally just. Both are objects of justice. Justice,
however, taken in the narrower sense (for in the wider sense the
virtuous man is the just man purely and simply) and distinguished
from morality, is directed to the other, to the fellow man, whether
as equal (commutative justice) or as fellow member of the com­
prehensive polis-community (distributive and, in the behavior
of the member with regard to the whole, legal justice). It finds
expression in the natural law and in the positive law. The latter
originates in the will of the lawmaker or in an act of an assembly;
the natural law has its source in the essence of the just, in nature.
That which is naturally right is therefore unalterable. It has
everywhere the same force, quite apart from any positive law that
may embody it. Statute or positive law varies with every people
and at different times. Yet the natural law does not dwell in a
region beyond the positive law. The natural law has to be realized
in the positive law since the latter is the application of the uni­
versal idea of justice to the motley manifold of life. The im­
iS T H E N A T U R A L LAW

mutable idea of right dwells in the changing positive law. All

positive law is the more or less successful attempt to realize the
natural law. For this reason the natural law, however imperfect
may be its realization in the positive law, always retains its bind­
ing force. Natural law, i.e., the idea and purpose of law as such,
has to be realized in every legal system. The natural law is thus
the meaning of the positive law, its purpose and its ethically
grounded norm.
Recognition of the fact that no system of positive law is alto­
gether perfect brought Aristotle to the principle of equity. The
law is a general norm, but the actual matters which it has to
regulate issue from the diversity of practical life. Of necessity the
positive law exhibits imperfections; it does not fit all cases. Equity
thereupon requires that the individual case get its right, i.e., that
the imperfection of the formal law be overcome by means of
material justice, through the content of the natural law. Thus
Aristotle already viewed the judge’s function of filling up gaps
in the law as an attempt to apply the natural law— if indeed the
positive law is rightly to bear the name of law at all. The gaps are
consequently the gateways through which the natural law con­
tinually comes into play. In such cases the judge has to decide in
accordance with the norm which the true lawgiver would himself
apply if he were present; the true lawgiver of course is always
assumed to will what is just. This is a celebrated formula which
in these very words or in the form, “ which he [the judge] would
lay down as lawmaker,” still found its way into the great codifica­
tions of civil law undertaken in the nineteenth and twentieth
centuries (e.g., the Austrian and Swiss Civil Codes).
Concerning the content of the natural law Aristotle had as
little to say as Plato. This was in sharp contrast to the Sophists,
who because of their political and socio-critical bias had admitted
many reform proposals and demands into their natural law. The
 T H E LEG ACY OF GREECE AND ROME 19
silence of Plato and Aristotle finds its explanation in their idea
of the natural law: they set out from the conservative conviction
that the positive law wishes to realize the natural law. Added to
this was their strong belief in the excellence of the existing laws
of the polis as well as in the conformity of such laws to the natural
law. The city-state, its general welfare, and its happiness occupied
so prominent a place in the ethical thinking of Plato and Aristotle
— for whom indeed the idea of man achieves ultimate perfection
in the good citizen— that they looked upon the existing laws as
something holy. In contrast to the individualistic attack launched
by the Sophists against them, the natural law of Plato and Aris­
totle served precisely to justify the existing laws and not merely
as a basis for criticizing them, although the function of criticism
was regarded as included in the idea of natural law. Further­
more, for Aristotle as for Plato the polis or city-state was the great
pedagogue, against which, strictly speaking, no natural, subjec­
tive right of the citizen could be admitted. They acknowledged
no goal of man that transcends the ideal polis. They remained
state socialists. Their doctrine of natural law was from the polit­
ical standpoint conservative, but it was based on metaphysics.
With the effective discovery, through Christianity, of human per­
sonality and with the recognition of God’s intellect and will as
the source of the natural moral law, rational thought would
thenceforth be in a position to work its way through to the true
natural law.

In the public squares of Athens and on the steps of its public

buildings the wordy Sophists had once taught their rationalistic
philosophy, their revolutionary natural-law doctrine. In the
same places Socrates, the “ lover of wisdom,” and Plato and
Aristotle, following him, had risen up against the skepticism that
was already making its appearance among the Sophists, a skepti*
xc T H E N A T U R A L LAW

cism evoked by the doctrine of man as the measure of all things 9

and by the resultant subjectivism in epistemology and ethics.
This trio of thinkers had anchored anew in philosophy the nat­
ural law which at the hands of the Sophists had been threatening
to decline into a mere rationalization of political interests.
With the disappearance of these intellectual giants from the
scene, however, the Skeptics, the positivists of their day, began
at once to hold forth in the same halls and gardens of the Academy
at Athens. The senses, they taught, do not convey true knowledge
but only illusion; even reason does not guarantee the truth and
certitude of knowledge; certainly, then, truth cannot arise from
the illusions of both the senses and reason. A ll laws, whether of
art, speech, morality, or right, are arbitrary. They have their
origin in mere agreement, and they vary with the change of the
free will which establishes them. As no assertion is of more value
than its opposite, so, too, no law is worth any more than its op­
posite. Likewise, since we cannot perceive the essence or nature
of things and of man, a natural law is impossible.
Skepticism attained its highest point in the teaching of Car-
neades (cir. 2 15 -12 5 b . c .), who for a long time was scholarch at
Athens. About 155 b . c ., in Rome, he directed his attacks against
the natural-law doctrine of the Stoics, a contest which he had
made the principal mission of his life. There he won fame
through his pro-and-con method of demonstration, whereby he
strove to heap ridicule upon the notion of justice. One of his most
celebrated arguments was drawn from the borderline case known
as “ the plank of Carneades.” At a time of shipwreck two persons
swim to a plank and grasp it simultaneously. But the plank can
hold up and save only one of the two. In the light of this case
what is right, and who has the right to the plank? Both and neither,
he answered, in such a case of dire necessity and self-preservation.
» Cf. Werner Jaeger, Humanism and Theology (The Aquinas Lecture, 1943. Milwau­
kee: Marquette University Press, 1943), pp. 38-40, 50 f.
 T H E LEG ACY OF GREECE AND ROME 21
(Seventeen centuries later Suarez furnished the correct solution:
the order of justice here terminates, and the order of charity
governs the case.) Positivism in ethics and law reached its climax
with Carneades, again in connection with the repudiation of ob­
jective knowledge of reality and essences and with the denial of
metaphysics.

Stoicism prepared the way for the Christian natural law. It

was founded in Greece as a school of philosophy by Zeno, who
lived from about 340 to 265 b . c . It came to its full flowering in
Rome in the imperial age. The great figures of Seneca and the
emancipated slave Epictetus as well as the appealing personality
of Emperor Marcus Aurelius there adorned the Stoic school.
Cicero, however, was its great popularizer, and the wealth of Stoic
thought was handed down to the medieval world mainly in his
writings. Stoicism, moreover, greatly influenced the various
schools of Roman jurisprudence. The passages of Roman law
which touch the natural law have their source mostly in Stoic
philosophical literature.
Stoicism thus reached its height at a time when the society of
the ancient world was definitively splitting into two classes. On
the one side stood the plebeian proletariat, kept tractable by
largesses of food and other articles and by shows; on the other side
stood the new aristocracy and bourgeoisie, largely given over to
unrestrained pleasure-seeking and vice. Over both classes, deified
and sometimes crazed Caesars eventually established a despotic
rule. This environment conditioned the eclecticism of the Stoa,
that circle of the few from all ranks and provinces of the world
empire who placed the idea of a virtuous life and of attaining
happiness of mind through the true, the good, and the beautiful
above base sensuality, pursuit of wealth, and pride of life. The
Stoics were individualists but, unlike the Sophists, they were not
militantly opposed to the polis; indeed, the city-state no longer
2£ T H E N A T U R A L LAW

existed, only the world empire. Therefore they extolled, besides

the individual, the social impulses and feelings. They drew upon
and assimilated the intellectual goods of Heraclitus, Socrates,
Plato, and Aristotle.
The core of Stoic teaching is ethics with its Socratic and, in
final analysis, general Greek stamp of intellectualism, according
to which correct knowledge is the basis of ethics, and the unity of
knowledge and conduct forms the ideal of the sage. This last and
most striking representative of the spirit of the declining civiliza­
tion of antiquity comes closest to the grander representative of
Christianity, the saint.
The sage is the man who carries his happiness within himself,
who in inner self-sufficiency remains undisturbed by external
events. Knowledge and conduct are not dependent on the ir­
regular influences of the world: the sage is calm, unmoved by pas­
sion. It is owing to the passions and their excesses that clearness of
perception and judgment becomes impossible. For this reason
man does not attain to a clear knowledge and judgment of what
is truly worth striving for. This consists essentially in conform­
ableness to the rational nature of the sage. Virtue consists in the
positive determination of conduct through will power in accord­
ance with rational insight into man’s essential nature. Virtue is
right reason. Nature and reason are one. Right reason and the
universal law of nature, which holds undisputed sway through­
out the universe, are also one. Obedience to the eternal world law
in a life lived according to reason: such, embraced with religious
fervor, is the ethical principle of Stoicism. It thus means to live
in harmony with oneself, to live in accordance with one’s rational
nature; for the latter manifests the world law.
Law, too, has its basis in nature. Man has an inborn notion of
right and wrong, and law in its very essence rests not upon the
arbitrary will of a ruler or upon the decree of a multitude, but
 T H E LEG ACY OF GREECE AND ROME *3
upon nature, i.e., upon innate ideas (non scripta sed nata lex) . 10
Cicero (106-43 B-c -) was the interpreter and transmitter of the
Stoic doctrine of natural law. The lex nata, the law within us, he
regards as the foundation of law in general. It is not to be gathered,
as a general concept by way of abstraction, from the law of the
Twelve Tables or from the praetor’s edict— that is, from the
positive law—but ex intima philosophia. Since it is identical with
right reason, it is universally valid, unchangeable and incapable
of being abrogated; for its author is the divine reason itself—
taken, of course, in a pantheistic, impersonal sense. It is also
called eternal law. Cicero could thus write: “ If the principles of
Justice were founded on the decrees of peoples, the edicts of
princes, or the decisions of judges, then Justice would sanction
robbery and adultery and forgery of wills, in case these acts were
approved by the votes or decrees of the populace. But if so great
a power belongs to the decisions and decrees of fools that the
laws of Nature can be changed by their votes, then why do they
not ordain that what is bad and baneful shall be considered good
and salutary? Or, if a law can make Justice out of Injustice, can it
not also make good out of bad? But in fact we can perceive the
difference between good laws and bad by referring them to no
other standard than Nature: indeed, it is not merely Justice and
Injustice which are distinguished by Nature, but also and with­
out exception things which are honourable and dishonourable.
For since an intelligence common to us all makes things known to
us and formulates them in our minds, honourable actions are
10 This phrase is used by Cicero in his speech For T. A. Milo, apropos of the right of
self-defense: “ This, therefore, is a law, O judges, not written, but born with us, which
we have not learnt, or received by tradition, or read, but which we have taken and sucked
in and imbibed from nature herself; a law which we were not taught, but to which we
were made, which we were not trained in, but which is ingrained in us, namely, that if
our life be in danger from plots or from open violence or from the weapons of robbers
or enemies, every means of securing our safety is honourable” (Yonge’s translation). Cic­
ero’s conclusion, it is worth observing, is too broad: not every means of self-preservation
is morally allowable.
24 T H E N A T U R A L LAW

ascribed by us to virtue, and dishonourable actions to vice: and

only a madman would conclude that these judgments are matters
of opinion, and not fixed by Nature.” 11 Time and again the
gifted rhetorician contrasts in this manner the law of nature, as
the measure and inner source of validity, with the positive law,
which to him is a shadow and reflected image of the true Taw.12
Epictetus ( cir . a . d . 60-110) likewise called attention to the
diversity of the laws that prevail at various times and among dif­
ferent peoples. He taught that the test of whether or not a law
accords with nature consists in its agreement or non-agreement
with reason. The laws that upheld slavery he called laws of the
dead, an abysmal crime. Seneca (d. a . d . 65), in the teeth of the
prevailing institution of slavery, gladiatorial combats, and shows
featuring the throwing of human beings to beasts, voiced this
magnificent sentiment apropos of human dignity: homo sacra
res homini,13 What were originally Sophist doctrines were gain­
ing fresh currency: the dignity of the human being and the
natural-law basis of freedom and equality. Slaves, too, are men,
blood relations and brethren. Like freemen, they are God’s own
children, members of a great community. The city-state has thus
lost its power, and with it has disappeared the differentiation of

iiLaw s, I, xvi, translated by C. W. Keyes, in The Loeb Classical Library. Cf. also ibid.,
I, x, xv, xvii f.
12 The following is another celebrated passage of Cicero on the same subject: “ True
law is right reason in agreement with nature; it is of universal application, unchanging
and everlasting; it summons to duty by its commands, and averts from wrongdoing by
its prohibitions. And it does not lay its commands or prohibitions upon good men in vain,
though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it
allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely.
We cannot be freed from its obligations by senate or people, and we need not look out­
side ourselves for an expounder or interpreter of it. And there will not be different laws
at Rome and at Athens, or different laws now and in the future, but one eternal and
unchangeable law will be valid for all nations and all times, and there will be one master
and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and
its enforcing judge. Whoever is disobedient is fleeing from himself and denying his
human nature, and by reason of this very fact he will suffer the worst penalties, even if
he escapes what is commonly considered punishment" (The Republic, III, xxii, trans. by
C. W. Keyes, in The Loeb Classical Library).
is Epistulae morales ad Lucilium, XCV, 33.
 T H E LEG ACY OF GREECE AND ROME 25

mankind into Greeks and barbarians, into freemen and slaves.

“ All that you behold, that which comprises both god and man, is
one— we are the parts of one great body. Nature produced us re­
lated to one another since she created us from the same source
and to the same end. She engendered in us mutual affection, and
made us prone to friendships. She established fairness and
justice.” 14 A magnificent statement of the civitas maxima, the
great society or world state, and of its fundamental law, the nat­
ural law! As Marcus Aurelius expressed it: “ My city and country,
so far as I am Antoninus, is Rome, but so far as I am a man, it is
the world.” 15
These Stoic views are singularly impressive in an environment
that was replete with despotic brutality and contempt for man,
with excesses and misuse of power, with a many-sided suppression
of freedom. It is of far greater consequence, however, that they
penetrated into Roman law, led to a recognition of the individual
in private law, and elevated to the dignity of natural lav/ the more
liberal principles of the ius gentium which had developed out of
the law of foreigners. Above all, they brought to the original
tribalism and formalism of Roman law a universalism which fitted
it “ to survive, as a world law, the life of the nation in which it had
originated” (Puchta). Among the later Stoics, too, we find the
doctrine of a state of nature, a happy condition of mankind in
which all the Stoic ideals of right and freedom had been realized
and where the pure natural law had consequently been in force.16
The status civilis, on the other hand, with slavery organized and
protected by the positive law, was looked upon as a state of affairs
in which the natural law, though continuing in force, no longer
holds sole sway.

lilh id ., XCV, 52, trans. by R. M. Gummere, in The Loeb Classical Library. The pan­
theistic cast of Stoic thought is here unmistakable.
is Meditations, VI, 44.
16 Cf. R. W. Carlyle and A. J. Carlyle, A History of Mediaeval Political Theory in the
West (6 vols., Edinburgh and London: William Blackwood & Sons, 1903-36), I, pp. 23 ft.
2f T H E N A T U R A L LAW

In Stoicism, then, the mind of the ancient world had come to

embrace whatever views Heraclitus, Plato, Aristotle, and the
moderate Sophists had held regarding the natural law—all that
they had taught touching the lex aeterna, recta ratio, lex naturalis,
ius naturale, as well as concerning the connections of these with
positive law and their evaluating force in relation to it. It thus
preserved the ‘‘seeds of the Logos,” and it found the literary forms
or word vessels into which the Christian spirit was to pour its own
ideas, which eventually matured into a new, yet related, doctrine
of natural law.
Under the influence of Stoic philosophy the doctrine of the
natural law passed into Roman law. The great jurists of the
golden age of Roman law were for the most part also philosophers.
Through the medium of eclectic Stoicism they were acquainted
with Aristotle’s teaching on justice and with Zeno’s work On the
Laws; especially, however, they were familiar with the writings
of Cicero, the popular philosopher of Stoicism. Besides, the
forensic orators were interested in philosophy in their pleadings
at the bar. Among these Cicero held first place, but there were
also Q. Mucius Scaevola, Calpurnius, and Rutilius, as Cicero him­
self informs us. This philosophical bent is likewise evidenced by
the frequency with which the jurists cite the philosophers. Gaius,
for example, quotes Aristotle and Xenophon; Ulpian and Celsus
quote Cicero; Paulus mentions Graeci in general. The peculiar
function of the jurists, “ responding,” i.e., imparting legal in­
formation and counsel to the judges and litigants alike,17 in­
volved for the jurists this deeper kind of intellectual labor. Thus
Stoic philosophy may with considerable justice be called the
mother of Roman jurisprudence. The latter, to keep up the
it On “ responding” and on its later development, the ius respondent, see, e.g., W. W.
Buckland, The Main Institutions of Roman Private Law (Cambridge: Cambridge Uni­
versity Press, 1931), pp. 14 f.; James Hadley, Introduction to Roman Law (reprint, New
Haven: Yale University Press, 1931), pp. 6i-6g.
 T H E LEG ACY OF GREECE AND ROME 87

metaphor, sucked in the doctrine of the ius naturale with its

mother’s milk.

Down to the time of Cicero neither science nor the natural-law

doctrine had exercised any practical influence on Roman law.
Then, however, theory broke in along a broad front. For Gaius,
Paulus, and Marcian the ius naturae is a norm which from the
very beginning lies forever imbedded in the nature of things;
since it also reveals itself in things, it can be discovered in them.
The Stoic idea of an eternal law of the order of the universe was
present to their minds. This law emanates from the logos, which
in turn is itself the law of things. The logos, moreover, expresses
itself conceptually in the nature of things, and it destines them
for harmony with the universe. Hence wherever two beings,
whether man and thing or two men, find themselves related to
each other, a rule covering what is naturally and essentially con­
formable to this relationship is present in the law of the logos—
and is at the same time expressed a priori in the very nature of
the correlates. A law rules as an ordering force in the natura
rerum, in the world of both irrational and rational creatures.
This became of practical importance as a norm for positive
legislation and for the deciding of cases for which the positive law
contained no norm. But the natural law especially became the
magic formula whereby the jurists in their responsa replaced the
ancient law, which had by then become inadequate, with new
law introduced under the concepts of lex naturae and aequitas.
This they accomplished by means of the edict of the magistrates
who were under their influence as well as through the imperial
constitutions. In addition, the new law had in its favor the splen­
dor of inherent truth or reason, the charm of simple conformity
with nature, and the grandeur of transcending peoples and ages.
But to the jurists aequitas was the echo of the lex naturae, the
28 T H E N A T U R A L LAW

command of an inner voice through which speaks the ratio of the

natura rerum immanent in things. Aequitas is the legal conscience
which speaks even when a positive norm is at hand, for it is the
“ meaning” of the positive law. Adjudication, or applying the
law, is not a logical and automatic process of subsuming under
a general norm: it is interpretation in the light of aequitas.
As material contents of the law of nature the jurists designated
such things as the rules touching kinship (marriage— family),
good faith, adjustment or weighing of interests (suum cuique),
the real meaning of the actual will of the legal subject as opposed
to the formalism of the law governing expression of will. T o these
may be added the original freedom and equality of all men, and
the right of self-defense (vim vi repellere).
Furthermore, the jurists, e.g., Paulus, Ulpian, and Marcian,
regarded the ius civile as possessing special force. Yet even accord­
ing to them the ius naturae must prevail in case of conflict: what
the ius naturae forbids, the ius civile may not allow; nor may the
ius civile repeal such prohibition (compare the scholastic teach­
ing: the negative precepts of the natural law are forever im­
mutable). T o be sure, this question occasioned no real trouble,
since the responsa of the jurists possessed, so to speak, legislative
force. Thus their doctrine of the ius naturae forthwith gained a
footing, along with the finding and the judgment, in the responsa.
It also took on positive form in the lex casus, in accordance with
which the magistrates were thereafter to proceed in similar cases.
In like manner, too, the royal judge in Anglo-Saxon lands, bear­
ing the law, i.e., the natural law, “ in the shrine of his breast,” in
the very act of handing down a decision conferred positive char­
acter upon the natural law in the rule of the case.

The Roman world empire, with its toleration of the legal in­
stitutions of subject peoples, placed in the hands of the jurists
still another important source of knowledge. This was the un-
 T H E LEG ACY OF GREECE AND ROME 29
written ius gentium, which arose out of actual practice and was
substantially “ found” by the jurists and magistrates. The ius
naturale, derived from metaphysical and ethical reflection, ap­
peared identical with the universal element in the legal systems
of individual peoples. As the idea of law thus issued from ethical
speculation as a teleological apriorism for the positive law, so it
emerged as concept of law in the positive law through abstract
treatment of the legal systems of particular peoples. This led to
the ius gentium. Consequently the results which philosophical
thinking arrived at by way of deduction from logos, ratio, and
rerum natura turned out to be identical with the idea of law in
the systems of positive law. These in turn are products of the
universal, law-creating societas humana and of reason that gov­
erns in it.
The equating of ius naturae and ius gentium that is met with
even in Gaius has here its origin. Ulpian, on the contrary, defined
ius naturale as “ that which nature teaches to all animals” (quod
natura omnia animalia docuit); but this is the ordo rerum. The
ius gentium thereupon becomes that part of the ius naturale
which has force for mankind.18 This, however, is a product of the
will of universal reason, not of the will of some particular his­
torical lawgiver.
The Roman jurists still lacked a clear distinction between law
and morality. Even the norm “ worship must be paid to God”
pertained to law, and so did “ live honorably.” T o the jurists, in­
deed, jurisprudence was “ a knowledge of things divine and hu­
man, the science of what is just and unjust.” 19
But the greatest intellectual gain stemmed directly from Stoic
ethics. The Greeks, except for a few revolutionary Sophists, had
regarded the citizens of the polis as the sole subjects of law. For
the Roman jurists, on the other hand, it was not merely the
is Cf. Digest, I, i, 1-4; Carlyle and Carlyle, op. cit., I, 34-44.
10 Digest, I, i, 10.
30 T H E N A T U R A L LAW

Roman citizen who was in the true sense a subject of law, but
every member of human society (the civitas maxima of the
Stoics). Therefore they held that man as such is possessed of nat­
ural rights, which he continues to retain even in a state of slavery.
Slavery was thereby, in contrast to Aristotle’s doctrine, a positive-
law institution which could and should be displaced in keeping
with being and oughtness.
Even after the revival of imperial sovereignty in the later
Roman Empire (under Justinian, a . d . 527-65), the natural law
remained the first, supreme, and true legal norm: the basic law
of human relations, the model and ideal set before the eyes of
the lawmaker for realization. But it was no longer such for the
judge, who was henceforth dependent upon the law, or for the
citizen. For these the positive law alone had force. Nevertheless
the idea of ius naturae had so strong a hold that, in contrast with
modern absolutism, as, for instance, in the doctrine of Hobbes,
the lawmaker remained subject to the natural law not merely
as an empty form, but as a system of content-laden norms.
It remains an eloquent proof of the eternal truth of the doc­
trine of natural law that Roman law, the finest legal system yet
developed in the West,20 enveloped the natural law in its deepest
thinking and taught it in its noblest terms.
Like Stoic philosophy, Roman law also passed on this idea to
the new Christian era and to the age of scholastic philosophy,
which as true philosophia perennis 21 has remained the perma-
20 Anglo-Saxons will be disposed to demur. But this is not the place to attempt to weigh
the claims of the English system of common law, in which the natural law has also
played an important role, to equal or superior excellence. In a general way, cf. W. W.
Buckland and A. D. McNair, Roman Law and Common Law. A Comparison in Outline
(Cambridge: The University Press, 1936).
21 Philosophia perennis (a term seemingly coined by Steuchus in 1540, used by Leibnitz,
and popularized by the Neo-Scholastic movement) denotes a body of basic philosophical
truths that is perennial, enduring, abiding, permanent, eternal—a philosophy that “ is as
old and as new as philosophical speculation itself.” It is one whose “ validity and truth
content is not confined to any particular age or civilization but is absolute and enduring”
(K. F. Reinhardt, A Realistic Philosophy [Milwaukee: The Bruce Publishing Co., 1944],
p. 17; cf. also pp. 18 ff.). In other words, philosophia perennis is the accumulated fund
 T H E LEG ACY OF GREECE AND ROME

nent home of the natural law. Scholastic philosophy has been the
sanctuary for the natural law when arid positivism has
driven the latter out of secular jurisprudence. Yet it has always
come back into jurisprudence whenever the human mind, weary
of the unsatisfying hunt for mere facts, has again turned to meta­
physics, queen of the sciences.22

of sure philosophical truths: “ the eternal store of primordial philosophical truths which
remains in spite of all evolutions and changes" (Philosophia Perennis. Abhandlungen zu
ihrer Vergangenheit und Gegenwart, herausgegeben von Fritz-Joachim von Rintelen
[2 vols., Regensburg: Josef Habbel, 1930]. I, ix); “ a stock of fundamental truths which sur­
vive the change of time and prevail over and above the difference of systems” (Franz
Sawicki, “ Die Geschichtsphilosophie als Philosophia Perennis,” ibid., I, 513). It is in the
main identified with the philosophy of Aristotle as purified, synthesized, developed, deep­
ened, and enriched through the genius of St. Thomas Aquinas. Its leading traits are aptly
summarized by Jacques Maritain: The "philosophy of Aristotle and St. Thomas is in fact
what a modern philosopher has termed the natural philosophy of the human mind,
for it develops and brings to perfection what is most deeply and genuinely natural in our
intellect alike in its elementary apprehensions and in its native tendency towards truth.
“ It is also the evidential philosophy, based on the double evidence of the data per­
ceived by our senses and our intellectual apprehension of first principles—the philosophy
of being, entirely supported by and modelled upon what is, and scrupulously respecting
every demand of reality—the philosophy of the intellect, which it trusts as the faculty
which attains truth, and forms by a discipline which is an incomparable mental purifica­
tion. And for this very reason it proves itself the universal philosophy in the sense that
it does not reflect a nationality, class, group, temperament, or race, the ambition or
melancholy of an individual or any practical need, but is the expression and product of
reason, which is everywhere the same; and in this sense also, that it is capable of leading
the finest intellects to the most sublime knowledge and the most difficult of attainment,
yet without once betraying those vital convictions, instinctively acquired by every sane
mind, which compose the domain, wide as humanity, of common sense. It can therefore
claim to be abiding and permanent (philosophia perennis) in the sense that before Aris­
totle and St. Thomas had given it scientific formulation as a systematic philosophy, it
existed from the dawn of humanity in germ and in the pre-philosophic state, as an in­
stinct of the understanding and a natural knowledge of the first principles of reason and
ever since its foundation as a system has remained firm and progressive, a powerful and
living tradition, while all other philosophies have been born and have died in turn. And,
finally, it stands out as being, beyond comparison with any other, one; one because it
alone bestows harmony and unity on human knowledge—both metaphysical and scien­
tific—and one because in itself it realizes a maximum of consistency in a maximum of
complexity, and neglect of the least of its principles involves the most unexpected con­
sequences, distorting our understanding of reality in innumerable directions” (An Intro­
duction to Philosophy, trans. by E. I. Watkin [New York: Sheed & Ward], pp. 99-101).
22 See, in general, Etienne Gilson, The Unity of Philosophical Experience (New York:
Charles Scribner’s Sons, 1937), pp- 298-320. Metaphysics is but "the knowledge gathered
by a naturally transcendent reason in its search for the first principles, or first causes, of
what is given in sensible experience. . . . As metaphysics aims at transcending all par­
ticular knowledge, no particular science is competent either to solve metaphysical prob­
lems, or to judge their metaphysical solutions” (ibid., pp. 308-10).
3s T H E N A T U R A L LAW

Everyone is at least familiar with the distinction between legal

norm and moral law, even though he does not completely separate
them. It must surely have come as something of a surprise, then,
that in antiquity such a distinction, let alone a separation, was
altogether wanting. Aristotle in his treatise on ethics says that
justice, which in this context he takes in the narrower sense, is
directed “ to another,’’ and, as essentially concerning the social
order, governs the relations of man with his fellow man. But he
speaks still more frequently of justice as the general virtue which
embraces all others, makes man virtuous, and guides him to the
highest goal. He likewise asserts, on this point following Socrates,
that the just man is obedient to the laws, i.e., to the written laws
and to the unwritten mores. Among these he includes the rela­
tions of man to himself, e.g., the curbing of the passions, as well
as the ceremonial law and reverence for the divine.
This view rests substantially upon the fact that the sole and
exclusive moral fulfillment of the idea of man was held to lie
in citizenship. Whence, too, the acceptance of slavery. The slave,
it was maintained, is by nature unfitted for citizenship; he is in­
capable, in the Aristotelian sense, of being educated to virtue.
The virtuous life is the goal of man. But he can achieve this goal
only as citizen of the polis and in obedience to its laws. All educa­
tion and training in virtue consequently become politics, and
the latter is ethics. The ancients knew only a politico-legal
morality. The city-state, in their view, is the ultimate and ab­
solutely supreme pedagogue, the fulfillment of the moral being
of man.
The notion of human personality was in its deepest meaning
hidden from the ancients, as was also the eternal, superterrestrial
goal of the immortal soul. Moreover, they had but a faint idea of
a personal God as the supreme lawgiver distinct from the world;
nor did they know anything of a Church as the medium of salva­
tion. For them the polis and its divine worship remained the
 T H E LEG ACY OF GREECE AND ROME 33
ultimate. Wherever the idea of human rights forced its way
through (among the moderate Sophists and in Stoicism), its
effect was revolutionary: either it dissolved the city-state or it
encouraged dreams of the great society (civitas maxima) of man­
kind, which of course merely raised the question of its own mean­
ing. Thus the ancients failed to arrive at the distinction between
natural law and natural moral law.
Nevertheless, the main problems connected with the idea of
natural law existed already in antiquity. The positivism of the
Skeptics, of Epicurus, and of Carneades stood in opposition to
the natural law in its two recurring forms: the metaphysical one
in Plato and Aristotle, and the individualistic one in the earlier
Sophists. Furthermore, the continually recurring definitions of
law, which have stirred up and divided philosophico-legal think­
ing down to the present day, had already been formulated: law
is will, law is reason; law is truth, law is authority. The doctrine
of an original state of nature, of fundamental importance for
individualism but of merely persuasive value for other thinkers,
appeared already among the Sophists. It appeared also among the
Stoics for a similar reason but with another object in view,
namely, to provide the basis for a distinction between a primary
and a secondary natural law. This distinction, valuable to the
Church Fathers in connection with their doctrine of original sin,
served the Scholastics to differentiate the self-evident principles
of the natural law from the conclusions obtained through reason­
ing whereby the content of the natural law is more exactly de­
termined— as well as to solve more or less successfully certain
thorny theological problems.
 CHAPTER II

The N atural Taw in the Age o f

Scholasticism

A n e w philosophy and a new world order did not follow at once

upon the entrance of the Christian faith into the ancient world,
into a socio-cultural complex that was in process of dissolution
and was addicted to somber mystical beliefs and practices. In­
deed, precisely because of the advancing disintegration, or rather
decomposition, of ancient society and culture, a considerable
number of early Christians were eschatologically minded; that
is, they were unduly concerned with the supposed imminence
of the last things, the end of the world and the second coming of
the Lord. At all events and for a variety of reasons, the transform­
ing power of Christian doctrine could at first accomplish little.
Christianity, however, contains three ideas of decisive im­
portance for the present problem: the idea of the supermundane,
transcendent, personal God as Lawgiver in the absolute sense,
the idea of Christian personality, whose eternal goal transcends
the state, the law, and the mores of the polis; and the idea of the
Church as the institution charged with the salvation of mankind
standing alongside and, in matters of faith and morals, above the
will of the state. Such ideas had in the long run to affect the whole
problem of natural law: not, indeed, in order to revolutionize
it, but to explore it more thoroughly, to strengthen its founda­
tions, and to complete it materially.1
i It is thus correct to speak of a Christian natural law, but solely in the sense in which
we use the term Christian philosophy. A Christian philosophy, to adopt the balanced
34
 T H E AGE OF SCHOLASTICISM 35
The history of the natural-law idea shows that Christianity
took it over at a very early date. Paul, the Apostle of the Gentiles,
declares that the natural law is inscribed in the hearts of the
heathen, who do not have the Law (of Sinai), and is made known
to them through their conscience. It is valid both for pagans and
for Jews because it is grounded in nature, in the essence of man.
(Cf. Rom. 2 :12 -16 ).

The Fathers of the Early Church made use of the Stoic natural
law, finding in its principles “ seeds of the Word,” to proclaim
the Christian doctrine of the personal Creator-God as the Author
of the eternal law as well as of the natural moral law which is
promulgated in the voice of conscience and in reason. Thus, for
instance, we read in St. John Chrysostom (d. 407): “ We use not
only Scripture but also reason in arguing against the pagans.
What is their argument? They say they have no law of conscience,
and that there is no law implanted by God in nature. My answer
is to question them about their laws concerning marriage, homi­
cide, wills, injuries to others, enacted by their legislators. Per­
haps the living have learned from their fathers, and their fathers
from their fathers and so on. But go back to the first legislator!
From whom did he learn? Was it not by his own conscience and
conviction? Nor can it be said that they heard Moses and the
prophets, for Gentiles could not hear them. It is evident that

view of Etienne Gilson, is one "which, although keeping the two orders [of reason and
the supernatural] formally distinct, nevertheless considers the Christian revelation as an
indispensable auxiliary to reason" (The Spirit of Mediaeval Philosophy, trans. by A. H. C.
Downes [New York: Charles Scribner’s Sons, 1936], p. 37). See also his Christianity and
Philosophy, trans. by Ralph MacDonald, C.S.B. (New York-London: Sheed and Ward,
t939), p. 101. As Johannes Messner has pointed out, "when we speak of a ‘Christian’
natural law, this does not mean that the natural law knowable by us through reason
alone is replaced or amplified by one derived from supernatural revelation, but that our
knowledge of its existence, its essence and its content is confirmed and clarified through
the guidance of reason by faith. . . . For the Catholic the designation ‘Christian’ natural
law further includes the conviction that the Church, in virtue of its divine mission, is
the unfaltering guardian and infallible expounder of the same" (Die Soziale Frage [5th
ed., Innsbruck-Vienna: Verlagsanstalt Tyrolia, 1938], p. 494).
3f T H E N A T U R A L LAW

they derived their laws from the law which God ingrafted in man
from the beginning.” 2

The Fathers also took over the Stoic distinction of a primary

and a secondary natural law, which they interpreted in a theo­
logical sense. They regarded the former as applying to the state of
unimpaired nature or innocence, while they assigned the latter,
with the coercive authority of the law, with bondage and slavery,
to the theological condition of fallen nature. Nature, somehow
wounded indeed but not destroyed, is therefore still able fully to
recognize the first principles of morality and law. But the con­
clusions from the first principles, which were also plainly intel­
ligible in the state of unimpaired nature, are now attainable only
by means of deductive reasoning, since the practical reason is also
weakened. Accordingly law takes on a harsh, compulsory char­
acter, and the state bears a sword. But the state as such was not
regarded by the Fathers as some sort of consequence of sin. An
age ignorant of tradition has been able to take such a view of the
state only on the basis of patristic texts torn from their context
and because of a want of understanding of the mental outlook of
the Fathers.
The Fathers did not attempt to construct a system of ethics and
jurisprudence. Their speculative thinking was wholly taken up
with elucidating the truths of faith, which were in danger of
being swamped in the upsurge of pseudomystical doctrines char­
acteristic of the numerous mystery cults of declining antiquity.
In addition, their heavy pastoral duties in the period of persecu­
tions, organization, and evangelization left them little leisure
2 A d p o p . A n t., X II, 4 (Migne, P G , Vol. CXXXII), quoted by Stanley Bertke, T h e Pos­
sibility of In v in c ib le Ignorance of the N a tu ra l L a w . The Catholic University of America
Studies in Sacred Theology, No. 58 (Washington, D.C.: The Catholic University of Amer­
ica Press, 1941), p- 8, where also (pp. 5 -11) the views of the other Church Fathers on the
natural law are conveniently presented in summary fashion. Bertke’s study is a real
contribution to the whole problem of the natural law.
 T H E AGE OF SCHOLASTICISM 37
for thorough theoretical treatment of questions of moral and
legal philosophy.

St. Augustine (d. 430), it is true, forms an exception, and a

very brilliant one. In his extremely fertile mind the ideas of an­
cient philosophy came once again to life and were worked into
the new Christian mentality. His talents and the struggles against
the Pelagian and Manichaean heresies, as well as the shattering
experience of the breakdown of the Roman Empire, of the earthly
city, brought ethico-legal problems home to the great bishop of
Hippo.
For Augustine the substantial ideas, which Plato had conceived
of as dwelling in a heavenly abode, became thoughts of God. The
impersonal world reason of the Stoics became the personal, all­
wise and all-powerful God. The purely deistic Nous of Aristotle
became the Creator-God who transcends the world, but who con­
tinually sustains it through His omnipotence, directs it through
His providence, and governs it according to His eternal law. This
eternal law was for Augustine identical with the supreme reason
and eternal truth, with the reason of God Himself, according
to whose laws the inner life and external activity of God proceed
and are governed. God’s reason is order, and His law rules this
ontological order, the order of being, of essences and values. But
since this norm is identical with the immutable, immanent na­
ture of God, it does not stand above Him; it is connatural to Him,
and it is as unchangeable as He. No power, no chance event, not
even the complete collapse of all things can alter it. No obscure,
occult fate is any longer enthroned, as in ancient thought, above
the personal God.
Through this law God, so far as He produces external effects,
directs, guides, and sustains the universe. God, supreme reason,
unchangeable being and omnipotent will: this is oneness in its
highest form. But the natural moral law and its component part,
5* T H E N A T U R A L LAW

the ius naturale, is precisely this divine law with reference to man,
so far as the latter participates in the divine law. The eternal law
dwells as blind necessity in irrational nature. As oughtness, as
norm of free moral activity, it is inscribed in the heart of man, a
rational and free being. It appears in the moral, rational nature
of man; it is written into the rational soul. There is no soul, how­
ever corrupt it may be, in whose conscience God does not speak,
if only it is still capable of rational thought. There are human
actions, consequently, which are in themselves good or bad. Bad
acts are not qualified as such by force of law, but because they are
such in themselves: because they constitute a disturbance of the
natural order. Thereupon, because they are such, the lawmaker
prohibits them under threat of punishment, which thereby ob­
tains its moral justification. Not the will of the earthly lawgiver,
but variance with natural reason is the ground of the intrinsic im­
morality of determinate actions.
The doctrine of natural law was transmitted to the golden age
of Scholasticism not only in the works of the Church Fathers but
also through the study of Roman law and through the develop­
ment of canon law. The classical authors of the Corpus iuris
civilis, as has been seen, stood in close contact with natural-law
thinking. It is not merely in passing that we meet with the natural
law in their writings: the natural law is there pronounced valid,
unconditionally binding law. Considerably greater, however, was
the influence of canon law in the form of Gratian’s Decretum
(cir. x 148), especially since during the first period of the flower­
ing of Scholasticism the study of Roman law by theologians was
frowned upon and even, for a time, prohibited. Gratian dis­
tinguished between ius naturale and the mores. The ius naturale,
which is contained in the Law (i.e., the Decalogue) and the
Gospel, is of divine origin. It resides in human nature, it is alike
in all men, and it has force independently of human statute. Nat­
ural rights and duties may indeed have to be more closely defined
 T H E AGE OF SCHOLASTICISM 39
by positive law, but they stand as a norm and rule above the posi­
tive laws. T o Gratian the latter were, like customary law or
mores, liable to change according to time, place, and people. In
short, Gratian merely set forth what tradition had handed down.

As the great philosophical movement of the Middle Ages, Scho­

lasticism,3 approached its peak, the natural-law doctrine attained
its most masterly expression. It was carried to speculative heights
which have never been surpassed in the centuries that followed.
Since then the doctrine of natural law has never wholly perished.
Even though it might be neglected in the official academic philos­
ophy which has been dominant in the chairs of the secular uni­
versities, and even though at the close of the nineteenth century
and at the opening of the twentieth century jurisprudence might
pronounce it dead, the natural-law doctrine has ever found a
home and tender care among the adherents of the philosophia
perennis. These have preserved it even throughout the decades
in which legal positivism held fullest sway. Moreover, they car­
ried it over, as Christian natural law, into an environment that
is once again more favorable to the idea of natural law. For World
War I and its consequences, to say nothing of World War II and
its effects (which promise to be still more fateful), have brought
men to recognize more and more openly the questionableness
of a philosophy without metaphysics, of an epistemology without
certainty of truth, of a jurisprudence without an idea of right.
The history of the natural-law idea exhibits a uniform doc-
s Scholasticism, which follows the main lines of Aristotle’s thought, in part "ad­
vocates a natural dualism of God and creature, mind and matter, thought and thine, as
against monism and pantheism; it defends a moderate realism, as against ultrarealism,
nominalism, and conceptualism, in the problem of the universals; it is spiritualistic and
not materialistic, experimental and not aprioristic, objectivistic and not subjectivistic- in
sense-perception it is presentational and not agnostic or representational or idealistic;
concerning intellectual knowledge it defends a moderate rationalism, as against sensism,
positivism, and innatism; it is common-sense knowledge critically examined and philo­
sophically vindicated” (Celestine N. Bittle, O. M. Cap., Reality and the M ind [Milwau
kee: The Bruce Publishing Co., 1936], p. 146).
4C T H E N A T U R A L LAW

trinal development from the first Scholastics down to the able

leaders of the scholastic revival of recent times. Its two culmi­
nating points were the synthesis of St. Thomas Aquinas and, fol­
lowing the heaviest assault made inside Scholasticism by the
Occamists on the idea of natural law, the work of Vittoria, Bel-
larmine, Suarez, Vasquez, and De Soto (to mention only the most
distinguished of the Late Scholastics). And the period after
World War I again produced more understanding and esteem for
a uniform doctrinal development that has been substantially in­
dependent of fashionable philosophies and of a jurisprudence
with special sociological or political ties.
Scholasticism has dealt exhaustively with the problem of nat­
ural law. Not one of its exponents has failed to treat of the
natural law, either in general in connection with the discussion
of the virtues or in particular under such headings as De legibus
or De iure et iustitia. And with the lex naturalis they handled,
though not always with the aid of special distinctions, the ins
naturale and ius gentium in the sense of the traditional formulas
of Roman law. This holds true from Alexander of Hales to
Thomas Aquinas, and thence down to the great masters of Late
Scholasticism. It further holds good for the theologians and phi­
losophers of the philosophia perennis, whether they were con­
temporaries of Pufendorf and Thomasius or of Savigny, down to
the increasingly esteemed representatives of the scholastic re­
vival which set in at the close of the nineteenth century.
In following the doctrinal development it is worthy of note
that the antithesis of lex-ratio and lex-voluntas, applying here in
the setting of theological speculation and in general to the lex
naturalis inclusive of the natural law in the stricter sense, coin­
cided structurally with the doctrines of the respective thinkers
concerning God. But it is also noteworthy that later, when the
natural-law doctrine had been severed from its theological moor­
ings and hence secularized, the same thought patterns repeated
 T H E AGE OF SCHOLASTICISM

themselves. Now, however, they were detached from the medieval

form of Summa and applied solely to law in the narrower sense.
The result has been that natural law is the consequence of the
doctrines of the priority of the intellect over the will (law is
reason) in both God and man, of the knowability of the essences
of things and their essential order, their metaphysical being and
the ordered hierarchy of values. Positivism, on the other hand, is
the consequence of the doctrine of the primacy of the will with
respect to the intellect in both theology and human psychology.
Besides, voluntas here means more than mere will: it denotes
passion, irrational appetite, and so on. Positivism signifies the re­
nouncing of all efforts to know the essences of things (nominal­
ism), the repudiation of the metaphysics of hierarchized being
and value. Accordingly it is also found in the same conceptual
pattern in the thinking of the nineteenth and twentieth centuries,
even though it is concealed under different names.
Relativism in ethics, legal positivism, the theory of will in pub­
lic and international law, nominalism and agnosticism in episte­
mology and metaphysics form down to the present a united front
with the mysticism of a biological positivism appearing in natural-
law dress. On the other side stands the conviction of unalterable
principles of morality and law, of the idea of right as object of a
philosophy of right, of the natural law, of the possibility of know­
ing the nature of things, of objective values and an ultimate unity
of being and oughtness as well as the possibility of a true theodicy,
or natural theology. And this antithesis continues on, in an ever
more acute form, into the domain of constitutional theory and
practice. The powerful position, in Anglo-Saxon countries, of
the judiciary which understands and interprets (functions of the
intellect) in contrast to the enactment of law through the will of
the legislature rests ultimately upon the philosophical view that
law is reason, not will. This means that right is discernible in the
nature of the case or lies in the legal institution regulated by law,
45 T H E N A T U R A L LAW

not in the will of the legislator: not, that is to say, in the wording
of the law representing such a will or command. Such formulas
as those found in the administration of justice in Anglo-Saxon
countries (especially in the United States), where formal natural-
law thinking has never disappeared among judges, are con­
tinually recurring even today.4

It was not with St. Anselm of Canterbury (10 33-110 9 ), often

called the first of the Schoolmen, that Scholasticism began to con­
cern itself more seriously with the natural law, but rather with
the first great author of a Summa, Alexander of Hales (d. 1245).
Deeper interest in it thus arose first and foremost from the philo­
sophical preoccupation with laying a solid foundation for ethics,
for law and the social forms of family and state, for a doctrine of
society and the state. This interest was considerably heightened,
however, in connection with the exegesis of certain passages in
the Old Testament.
That is, the thesis of the immutability of the lex naturalis and
ius naturale presupposes the intrinsic immorality and unlawful­
ness of certain actions, and it consequently excludes any dispensa­
tion from the norms of the lex naturalis. But such a position
seemed to conflict with some Old Testament stories, whose moral
tone and authority made it necessary to conclude that a dispensa­
tion is nevertheless possible. Such cases are, for instance, Yah-
weh’s command to Abraham to offer up his son Isaac in sacrifice
(Gen. 22:2); the polygamy of the patriarchs; God’s instruction to
the prophet Osee: “ Go, take thee a wife of fornications” (Osee
1:2 ; cf. also ibid., 3 :1); the injunction laid upon the Jews or per­
mission accorded them at the time of the Exodus to take away
with them vessels of silver and gold as well as raiment lent to them
4 Cf. Charles Grove Haines, The Revival of Natural Law Concepts (Cambridge: Har­
vard University Press, 1930), pp. 104-234; Benjamin Fletcher Wright, Jr., American Inter­
pretations of Natural Law (Cambridge: Harvard University Press, 1931), especially pp.
898-306.
 T H E AGE OF SCHOLASTICISM 43
by the Egyptians (Exod. 3:21 f.; 11:2 £.; 12:35 £.); divorce openly
allowed to husbands in the Mosaic legislation (Deut. 24:1-4);
the reply of the angel Raphael to Tobias’ question about his
identity: "I am Azarias the son of the great Ananias” (Tob. 5:18),
which seems materially and formally to amount to a lie. All
these cases called for a thorough discussion, from the theological
and exegetical angles, of the question of the immutability, i.e.,
the essential nature, of the lex naturalis. But at the same time they
were a warning not to be too doctrinaire in determining the con­
tent of the natural law.
Alexander of Hales, falling back upon St. Augustine’s teaching,
hit upon a beautiful figure: the eternal law is the seal, and the natu­
ral moral law is its impression in the rational nature of man, which
in turn is an image of God. Now, the laws of thought, as un­
changeable norms of thinking, must govern speculative reason,
the understanding, if the latter is to serve the purpose of its na­
ture, the perception of truth; and such laws are immediately evi­
dent and certain. In the same way there exist for willing and
acting in the domain of the practical reason supreme moral
principles which are equally evident and sure. Thus every deed
and action is moral only when it is performed in accordance with
these principles. Moreover, this immanent natural moral law can
never be destroyed. Yet the further conclusions from the supreme
principles may well become obscured in individuals through the
working of the passions and through a turning away from God,
the Author of the natural law. T o explain this possibility Alex­
ander borrows a figure from Plato: the sun ever remains the same,
yet darkness ensues when clouds pass before the sun or when,
during a solar eclipse, the moon prevents the sun’s light from
reaching the earth.
Although he held fast to the immutability of the first prin­
ciples, Alexander of Hales at first sought to explain the change­
ableness of the further conclusions, observable in the Old
44 T H E N A T U R A L LAW

Testament as well as elsewhere, by adopting the Stoic distinction,

transmitted in the writings of the Church Fathers, of a primary
natural law anterior to original sin and of a secondary one sub­
sequent to original sin. The status naturae integrae, the the­
ological state of nature preceding original sin, would in itself, as
St. Augustine had already taught, have produced life in society,
marriage, the family, and the political community. (This state
of nature accordingly differs considerably from the individual­
istic state of nature, which indeed was directly opposed to the
status civilis.) But had this state of nature been realized, com­
munity of goods, equal personal freedom, and a legal order un­
accompanied by the use of force would have prevailed. Only in
the state of fallen nature, after original sin, did private property,
restrictions upon liberty, the coercive power of the state, and
personal inequality arise. But the natural law underwent thereby
no alteration; for even now the basic norm, men must live peace­
fully with one another, remains in force. Hence only the applica­
tion of this norm has changed, not the norm itself. The secondary
natural law, the second table of the Decalogue (i.e., the last seven
of the Ten Commandments), is a consequence of original sin.5
But this theory had to be completely abandoned. For this type
of argument was unable to furnish what it was intended to pro­
vide, namely, an ethico-philosophical explanation of the actions
apparently contrary to the natural moral law recorded in the Old
Testament. And so Alexander of Hales had recourse, as did St. A l­
bert the Great and other contemporaries, to the doctrine of the
primacy of the will in God as well as to God’s sovereign dominion
that transcends all laws. These thinkers perceived clearly enough
that in this way everything again became uncertain, but they
» It may be observed that the common assignment of the first three of the Mosaic
Commandments to the first tablet of stone, and of the last seven Commandments to the
second tablet, is merely conventional. We simply do not know how the Ten Command­
ments were distributed on the two stone tablets, as the Bible itself gives no information
on the matter. Cf. Louis Hartman, C.SS.R., “ The Enumeration of the Ten Command­
ments,” The Catholic Biblical Quarterly, VII (1945), 105, note 1.
 T H E AGE OF SCHOLASTICISM 15
were unable to prevent this outcome. For an adequate solution of
the problem the genius of a Thomas Aquinas was needed.

St. Thomas (1225-74) starts from the likeness of human nature

to the divine nature. Understanding and free will are the most
essential marks that distinguish man from every other earthly
creature. It is precisely through them that man is in a special de­
gree the image and likeness of God. Man’s intellect and free will
constitute the closest image of God in the material universe, His
creation. St. Thomas, indeed, is fond of setting out from the no­
tion of analogy of being: namely, that all created being, though
of an altogether different kind from the divine Being, is an image
of the latter and a participation in it— from merely inanimate
being of inorganic nature up to man, whom God created after
His own image.
Here teleology, the doctrine of ends or final causes, enters the
scene.6 The essences of things, which are exemplifications of the
ideas conceived by the divine intellect, constitute at the same
time the end or goal of the things themselves. The perfection or
fulfillment of the things is their essence: formal cause and end
are one (causa finalis is ultimately identical with causa formalis).
Accordingly in the essential nature of the created world, as it
came forth in conformity with the will of the Creator, are im­
bedded also the norms of its being. In the essential nature is like­
wise founded essential oughtness, the eternal law, which is God’s
wisdom so far as it directs and governs the world as first cause of
all acts of rational creatures and of all movements of irrational
beings. The eternal law, then, is the governance of the world
through God’s will in accordance with His wisdom. This law is
thus the order of this world. Creatures fulfill this law in con-
e For an excellent discussion o£ the all-important and universal metaphysical principle
o£ finality, “ every agent acts for an end,” see R. Garrigou-Lagrange, O.P., God: His Ex­
istence and His Nature, trans. by Bede Rose, O.S.B. (2 vols., St. Louis: B. Herder Book Co.,
1934-36), I, 199-204; also K. F. Reinhardt, A Realistic Philosophy, pp. 87-89.
4f T H E N A T U R A L LAW

formity with their nature as it has been fashioned by God: from

the lifeless and inorganic realm of creation, through the living
but dumb creatures, to the rational and free beings.
The eternal law, therefore, comprises several elements. First,
it includes what today we call the laws of the natural sciences:
the laws of movement taken generally, in accordance with which
the stars in the heavens and the stones upon earth are moved from
without. Secondly, it embraces what in living creatures, plants
and animals, we term the laws of their evolution and growth, the
laws of reaction to external influences or stimuli, instinct, and
the like, which, however, involve movement from within, after
the manner of an entelechy.7 Thirdly, it contains the laws by
virtue of which man, as a rational and free being, knows and
wills, hence the laws of theoretical and practical reason. Since
man is quodammodo omnia— herein consists his likeness to God,
who is eminenter omnia,— he is wholly subject to the eternal law
in his material, sentient, and rational being, but ever in keeping
with his essence. Oughtness, not blind compulsion and necessity,
characterizes the way man obeys the law. Hence for man, as a
free rational being, the eternal law becomes the natural moral
law. Man must (i.e., ought to) thus both will and achieve the
perfecting or fulfillment of the potentialities of his being which
God has put into his nature, as he perceives them in virtue of
his reason and becomes conscious of them.
Furthermore, this natural moral law is alone law in the proper
sense: a norm which ought to be obeyed, not one that must be
blindly obeyed. Our modern laws of nature are law only in a meta­
phorical sense. Law, indeed, is a norm and measure for acts which
rational creatures alone are capable of. Its basic norm may be
7 “ In Aristotle’s vitalistic holism,” entelechy “ is the substantial form or soul which
unites with primary matter to constitute the unitary substance of the organic body; it is
primarily an entitative principle” (Celestine N. Bittle, O.F.M. Cap., The Whole Man
[Milwaukee: The Bruce Publishing Co., 1945], p. 632). For a comparison of the Aris­
totelian notion of entelechy with that of Hans Driesch, cf. ibid., p. 473.
 T H E AGE OF SCHOLASTICISM 47

simply stated: Act in conformity with your rational nature. For

rational nature, known through self-consciousness or reflex think­
ing, constitutes the ontological criterion of man’s oughtness.
Through its free realization he becomes a man, a free rational
being. God’s wisdom and knowledge as well as His will stand re­
vealed in the essential idea of man.
St. Thomas reaches the same conclusion from still another
consideration, from the metaphysical notion of goodness.8 Rea­
son is the first and proximate rule for judging the moral quality
of an action, which is moral precisely because it is inherently
conformable to reason and nature, or immoral because it is at
variance therewith. By what does reason gauge, however, whether
an action or object is suited to the essential nature? St. Thomas
gives the following explanation. Every agent, supposing that he
is actually in possession of reason and freedom of will, acts for
an end or purpose. The moving principle, the end, is thereby
perceived and willed as something good. But a thing is an end
only so far as it is a good, whose acquisition makes it worth
one’s while to act. Goodness induces one to act. Goodness is, in
final analysis, that which is in itself worth desiring and striving
for. As cognition is directed to being, so the will is directed to
goodness. And just as the intellect knows the thing so far as it has
8 See, in general, Gustaf J. Gustafson, S.S., The Theory of Natural Appetency in the
Philosophy of St. Thomas. The Catholic University of America Philosophical Series, Vol.
LXXIV (Washington, D.C.: The Catholic University of America Press, 1944), especially
pp. 84-go. Among the numerous recent analyses and expositions of St. Thomas’ doctrine
of the natural moral law, may be mentioned: Walter Farrell, O.P., The Natural Moral
Law According to St Thomas and Suarez (Ditchling, England: St. Dominic’s Press, 1930);
A Companion to the Summa (4 vols., New York: Sheed and Ward, 1938-42), II, 365-89;
Hans Meyer, The Philosophy of St. Thomas Aquinas, trans. by Frederic Eckhoff (St.
Louis: B. Herder Book Co., 1944), pp. 455-73; Karl Kreilkamp, The Metaphysical
Foundations of Thomistic Jurisprudence. The Catholic University of America Philo­
sophical Studies, Vol. L III (Washington, D.C.: The Catholic University of America Press,
1939), PP- 39_731 Stanley Bertke, op. cit., pp. 1-45. For an undoubtedly well-intentioned
but pathetic attempt to outline, weigh, and criticize the moral philosophy of a St. Thomas
(as well as to devise a positivistic methodology which will advance ethics from the al­
chemy stage to the high plane of science and thus accelerate the urgently needed moral
progress of mankind), see Louise Saxe Eby, The Quest for Moral Law (New York: Colum­
bia University Press, 1944).
48 T H E N A T U R A L LAW

being, so the will lays hold of the thing, perceived as desirable

or worth striving after, as good. All being is good. A being is a
good so far as it appears suited to the essential nature. Now the
supreme principles of speculative reason (the principle of con­
tradiction, and so on, the immediately evident, axiomatic laws of
thought) guide the intellect in its thinking. In the same way
St. Thomas recognizes a supreme principle, a law, for the prac­
tical reason, for the will: good is to be done. The very same being
which the theoretical reason knows as being and in which it ap­
prehends truth, the agreement of knowledge with being, appears
to the will and the practical reason as a good. That which is, also
ought to be. Being, truth, and goodness are convertible. The law
is truth; it wills what is good; and it presupposes knowledge of
being.9
Good is to be done: such is the supreme commandment of the
natural moral law. The highest and basic norm of the natural
law in the narrow sense, then, may be stated thus: Justice is to
be done. Yet this principle is altogether general. It needs still
to be determined to what extent the object striven for by means
of a concrete action is a true good. This is done more or less with
the aid of a syllogism (which, of course, is not worked out in every

s “ Now as being is the first thing that falls under the apprehension absolutely, so good
is the first thing that falls under the apprehension of the practical reason, which is
directed to action (since every agent acts for an end, which has the nature of good). Con­
sequently, the first principle in the practical reason is one founded on the nature of good,
viz., that good is that which all things seek after. Hence this is the first precept of law,
that good is to be done and promoted, and evil is to be avoided. All other precepts of the
natural law are based upon this; so that all the things which the practical reason nat­
urally apprehends as man’s good belong to the precepts of the natural law under the form
of things to be done or avoided” (Summa theologica, la Ilae, q.94, a.a). Wherever pos
sible, all English quotations from St. Thomas are taken from Anton C. Pegis, Basic Writ­
ings of Saint Thomas Aquinas (2 vols., New York: Random House, 1945). “ For St. Thomas
truth and goodness are one; there is a science of truth which is a science of the good;
there is accordingly a truth of conduct which carries with it its own stringent obligations.
There is, of course, a distinction between knowledge and action but there is only one
intellect which is both speculative and practical. We might then define the object of St.
Thomas’ moral science as ‘what conduct ought to be in virtue of what man really is, the
right ordering of life to life’s true goal.’ The viewpoint is completely realistic” (Gustaf j.
Gustafson, S.S., op. cit., p. too).
 T H E AGE OF SCHOLASTICISM 49
case by concrete reasoning): Good is to be done; this action is
good, it strives after a good; it is therefore to be performed. Good
is that which corresponds to the essential nature. The being of a
thing also reveals its purpose in the order of creation, and in its
perfect fulfillment it is likewise the end or goal of its growTth and
development. The essential nature is thus the measure. What
corresponds to it is good; what is contrary to it is bad. The measure
of goodness, consequently, is the essential idea of a thing and the
proportionateness thereto of actions and of other things. That is,
“ Good is to be done” means the same as “ Realize your essential
nature.” Moreover, since this essential nature issued from God’s
creative will and wisdom in both its existence and its quiddity,
the principle continues: “ You thereby realize the will of God,
which is truly manifested to you in the knowledge of your essential
nature.” The same being is truth to the theoretical reason, and
goodness to the practical reason.10
The train of thought thereupon widens. It follows that there
10 But it is man’s natural tendencies or inclinations which disclose to his reason and
will in what direction the perfection of his essential nature lies and, therefore, more pre­
cisely what is to be done as good, and what is to be avoided as evil. “ Since, however, good
has the nature of an end, and evil, the nature of the contrary, hence it is that all those
things to which man has a natural inclination are naturally apprehended by reason as
being good, and consequently as objects of pursuit, and their contraries as evil, and
objects of avoidance. Therefore, the order of the precepts of the natural law is according
to the order of natural inclinations. For there is in man, first of all, an inclination to good
in accordance with the nature which he has in common with all substances, inasmuch,
namely, as every substance seeks the preservation of its own being, according to its nature;
and by reason of this inclination, whatever is a means of preserving human life, and of
warding off its obstacles, belongs to the natural law. Secondly, there is in man an inclina­
tion to things that pertain to him more specially, according to that nature which he has
in common with other animals; and in virtue of this inclination, those things are said to
belong to the natural law which nature has taught to all animals, such as sexual inter­
course, the education of offspring and so forth. Thirdly, there is in man an inclination
to good according to the nature of his reason, which nature is proper to him. Thus man
has a natural inclination to know the truth about God, and to live in society; and in this
respect, whatever pertains to this inclination belongs to the natural law: e.g., to shun
ignorance, to avoid offending those among whom one has to live, and other such things
regarding the above inclination” (Summa theologica, la Ilae, q.94, a. 2). “ It is at this
point that the theory of natural appetency enters the field of ethics. To know what man
must do, one must first of all know what man is, know his nature, his needs, his possi­
bilities and his limitations. In more technical language, this is to know his natural ap­
petites, which, as orientations of that nature, point out his goal and the means which
are at his disposal for its attainment” (Gustaf J . Gustafson, S.S., op. cit., p. 101).
5® T H E N A T U R A L LAW

are some actions which, because they correspond to the essential

nature and its end, are in themselves good, moral, just; and that
there are others which, because they are at variance therewith, are
in themselves bad, immoral, unjust.11 At any rate, this is true on
the assumption that both in God and in man the intellect, not
the will, holds the primacy. For a natural moral law as an immuta­
ble basic norm, and the essential nature as a valid measure of what
is moral and just, are possible only when this essence is itself un­
alterable. This presupposes, however, that the essential nature
owes its idea, its quiddity, and its existence to the unchangeable
essence of God Himself, of which they are reflections. “ If, too,
human nature is the immediate measure of moral goodness, it can
be the norm of unalterable moral judgments only insofar as it
itself embodies the idea of man as this rests from all eternity in the
divine mind. But the ideas of things in the divine mind are, in
their content, nothing else than the images through which God
knows His own essence as imitable. This is true also of the idea of
man.” 12
11 The "first necessary and natural dictate of practical reason is: Do good, avoid evil.
The ‘good’ here is that which is according to natural inclinations, the ‘evil’ that which
is against those inclinations; for the whole purpose of man’s natural inclinations, as nat­
ural, is to indicate what nature needs for its perfection.
". . . In the practical order, which deals with actions, the first principle is founded
on the object of appetite, the root of desire and action—on ‘good’—and is: ‘good is to be
done, evil is to be avoided.’ In other words, the goal or end, the object of desire, is at the
root of all action, is indeed the sole explanation of intelligent action; this first principle
demands that man act for his end.
“ But what is good? That is easy. Good is what is in accordance with the natural in­
clinations of man. The natural inclinations guide the practical reason to good; then
the practical reason guides the appetites of man and their inclinations to the attainment
of that good. Nor is this a vicious circle. The inclinations of man’s appetite are his guide
to truth relative to the end or goal; for the means by which that end is to be attained,
reason takes the lead and points out the path. This is only to say again that law does
not establish an end, or point it out, but rather, as an act of the virtue of prudence,
guides our steps to that end” (Walter Farrell, O.P., A Companion to the Summa, II,
380 f.). Michael Cronin likewise observes that “ the natural law is wider in its scope than
the ends of the appetites. It extends also to the means necessary for attaining those ends.
For, if we must attain the end, then we must also adopt the means” (The Science of
Ethics [2 vols., 2nd rev. ed., New York: Benziger Brothers, 1929-30], I, 644).
12 Viktor Cathrein, S.J., Moralphilosophie (2 vols., 4th ed., Freiburg im Breisgau:
Herdersche Verlagshandlung, 1904), I, 185 f. All this, too, should enable one to appreciate
the profound statement of St. Thomas: “ We do not wrong God unless we wrong our own
good” (Summa contra Gentiles, Bk. I ll, chap. 122).
 T H E AGE OF SCHOLASTICISM 5i
The divine essence and, in one and the same act, the divine
knowledge thereof and the creative will of God, likewise thereby
informed in one and the same act, are (or rather, is) the basis for
the essential nature and its immutability. “ That God of necessity
enacts and cannot alter that law which we call the natural law
comes merely from the fact that His will cannot do away with
His most perfect essence, that God cannot be at variance with
Himself and cannot, as the Apostle says, deny Himself” (Kleut-
gen). This is the fundamental reason for rejecting moral and
legal positivism. The will is not the law; on the contrary, it can
only be right law when it is guided even in God by reason and
intellect. “ But to say that justice depends upon mere will is to
say that the divine will does not proceed according to the order
of wisdom, which is blasphemy.” 18

Good is to be done, evil is to be avoided: this basic norm of

the natural moral law has thus the character of an axiom. The real
question, however, is that of its application to the concrete case. As
another expression for the first rule of the lex naturalis, as general
principles known to all, St. Thomas mentions love of God and
of one’s neighbor. Man knows other principles only through de­
ductive reason, yet not with altogether unerring certitude. For, in
contrast with the speculative reason, the knowledge of the prac­
tical reason is more severely menaced in its clarity by the passions,
by sinful inclinations. These conclusions from principles are for
St. Thomas, as he explains in a searching inquiry into the prob­
lem, identical with the Decalogue, or Ten Commandments. The
Decalogue contains the most essential conclusions for the simple
reason that its precepts do not result from an arbitrary arrange­
ment made by God, but from the fundamental distinction of
good and evil. The first table of the Decalogue (first three Com­
mandments) embraces the moral norms that relate to the worship
is St. Thomas, De veritate, q. 23, a.6.
5s T H E N A T U R A L LAW

of God; these required a special promulgation, in the view of

St. Thomas, because they are not so evident as the laws found
in the second table. The latter (the last seven Commandments),
which are derived from the mutual relations among men and
from the essence and goal of human nature, are, on the other
hand, known more readily and with greater evidence. Human
society in all its groupings ought to be built up in accordance
with justice.
The Decalogue (second table) presents the norms that follow
from the essential relationships which in their turn are given in
the essential nature of man as a rational, free, and social being.
These precepts, as norms with a material content, protect the
family and parental authority (Fourth Commandment), human
life (Fifth Commandment), the person in the capital sense of
husband and wife (Sixth Commandment), property (Seventh
Commandment), and honor (Eighth Commandment); lastly they
forbid (Ninth and Tenth Commandments) inordinate, illicit
longing for those goods which are especially exposed to covetous­
ness and, moreover, whose wrongful appropriation does not
arouse that natural abhorrence which infractions of the Fourth,
Fifth, and Eighth Commandments do.14 St. Thomas regards it
as self-evident that the further deductions from these conclusions
do not possess the same evidence, since they necessarily lose, in
favor of particular prescriptions, the universal character required
for evidence. Furthermore, they are not so unmistakably recog­
nizable that errors about them may not arise in the minds of indi­
viduals as well as among groups.15 Moreover, they do not share in
the prerogative of immutability enjoyed by the principia com-
munissima as well as by the conclusions which make up the con­
tents of the Decalogue.
14 The problem of the correct numbering of the Ten Commandments is well handled
by Louis Hartman, C.SS.R., article cited, The Catholic Biblical Quarterly, VII (1945),
105-8.
is Cf. Jacques Maritain, The Rights of Man and Natural Law, trans. by Doris C. Anson
(New York: Charles Scribner’s Sons, ig43), pp. 62-64.
 T H E AGE OF SCHOLASTICISM 53
For instance, from the nature of the legal institution, from the
agreement with reason and from the right of property, which in
the general sense is protected by the Seventh Commandment,
it follows that goods held in trust should be restored to their
owner. Nevertheless, as St. Thomas points out, such goods may
be withheld from their owner in case they are to be used for trea­
sonable purposes.16 Here the further conclusion does not hold
good, although the universal norm of acting according to reason,
the suum cuique, continues absolutely to govern the case. Some
“ matters cannot be the subject of judgment without much con­
sideration of the various circumstances. Not all are able to do this
carefully, but only those who are wise.” 17 “ In the very applica­
tion of the universal principle to some particular case a mistake
can occur through an inadequate or false deduction, or by reason
of some false assumption” ; 18 and in the matter of its secondary
precepts, “ the natural law can be blotted out from the human
heart, either by evil persuasions . . . or by vicious customs and
corrupt habits.” 19 Therein, moreover, practical reason differs
significantly from theoretical reason, which is less subject to such
disturbing influences.
This does not, then, mean merely that there is in St. Thomas
no trace whatever of the extravagances of the rationalistic natural
law current in the seventeenth and eighteenth centuries, since
according to him only the Decalogue belongs to the contents of
the natural law. It further means that the lex naturalis or ius
naturale does not render positive laws superfluous, but actually
calls for them. St. Thomas gives scarcely any attention to the
doctrine of a state of nature, because he has no need of the latter
for establishing the natural law. Now, the farther removed the
conclusions are from the principia communissima, the more
i $ Summa theologica, la Ilae, q.94, a.4.
n Ibid., q. 100, a. 1.
is B e veritate, q. 16, a. a ad 1.
is Summa theologica, la Ilae, q.94, a.6. Cf. ibid., q.77, a .2; q.94, a.5; Maritain, loc. cit.
54 T H E N A T U R A L LAW

numerous and varied become the possible decisions. Hence a

positive law must determine, must decide with greater exact­
ness for concrete cases, what the correct application and con­
clusion are. There is all the more need of such determination
because human nature, deprived and hence wounded somehow
(though not destroyed or depraved) by original sin,20 must be—
and in conformity with its inner goal also ought to be— con­
strained to good and restrained from evil. Self-education or addic­
tion to goodness does not pertain to man as such. Consequently
men stand in need of a clearly prescribed and adequately sanc­
tioned system of norms, which emanate from an authority and
power that in their inmost reality serve justice, and in the indi­
vidual serve to perfect the essential nature of man. They are
therefore ethical. St. Thomas is no romantic optimist like Rous­
seau.
Furthermore, it is.precisely the object of the positive law to
render the citizen virtuous. It is not merely a question of main­
taining order, or external peace; the law should rather act as a
medium of popular education to transform those who live under
common legal institutions into perfect citizens. For this very
20 It is well to point out that, in developed Catholic teaching, original sin is not some­
thing positive but the privation of those supernatural (especially sanctifying grace with
its allied virtues) and preternatural gifts which God had gratuitously bestowed upon the
human race in the person of its head, Adam. Yet it is an habitual sin of human nature
itself which consists in a privative aversion toward God as man’s supernatural end and
whose voluntariness springs from the actual will of Adam in his capacity as the natural
head of the human race. Cf. J . M. Herv£, Manuale theologiae dogmaticae (4 vols., 17th
ed., Paris: Berche et Pagis, 1935). II, nos. 429-43. Moreover, it is the far more common
teaching among Catholic theologians that the natural powers of man have not been
intrinsically weakened by original sin: fallen man no more differs from man in the
(hypothetical) purely natural state than one who has been despoiled of his clothing dif­
fers from him who has been going about in the nude; but it is quite commonly held also
that the natural powers of fallen man have been extrinsically weakened. Such tradi­
tional formulas as vulneratus in naturalibus and natura vulnerata must seemingly be
understood, consequently, of nature taken historically, not philosophically (cf. ibid., II,
nos. 444-48). In short, the difficulty which man in the present order experiences in doing
good “ comes rather from the obstacles to virtue that man encounters than from any
intrinsic diminution of his natural powers.” Francis J. Connell, C.SS.R., in The Ameri­
can Ecclesiastical Review, CXIII (1945), 70. See also John A. Ryan, Original Sin and
Human Misery (pamphlet, New York: The Paulist Press, 1942), particularly pp. 39-42,
5 55
*“ -
 T H E AGE OF SCHOLASTICISM 55

reason positive norms, determinate coercive measures, and a

more exact definition of the circumstances in which the general
principle shall be applied, are imperative. Thus the definition of
what theft consists in is given with the lawfulness of private prop­
erty. But the punishment which should follow theft, if arbitrari­
ness is to be avoided, requires, with respect to the procedural
verification of the theft as well as to the sentence and its execution,
exact legal provisions which vary with times, cultures, and indi­
vidual peoples.
Here, in connection with the positive law which is therefore
always “ something pertaining to reason,” St. Thomas arrives at
the nature of law. It has to do essentially with community life.
On the other hand, it is distinguished from and contrasted with
social ethics through its being directed to external order. The law
wills that man conduct himself in such and such a manner; it
concerns the external forum (vis directiva). It is the norm to be
enforced: compulsion (vis coactiva) is proper to law, not to
morality.
From this inner connection o f every positive law with the
lex naturalis St. Thomas rightly concludes that the positive law
may not conflict with the natural law. So far as it is in conflict
with the latter, i.e., with the unchangeable norms, it is not law
at all and cannot bind in conscience. For the force and significance
of the law consist precisely in the obligation in conscience. Yet
it may at times be right to obey even an unjust positive law (one
that is not against the natural law: e.g., a law that imposes an un­
just tax burden), because the higher natural-law norm enjoins in
individual cases the sacrifice of a particular good to a more gen­
eral good. For instance, the general goods of security under law
and the external order of peace constitute a higher value than
does the individual right to just treatment in the levying of taxes.
It is consequently not the unjust law that binds, but the higher
norm of peace and of maintenance of the community.
56 T H E N A T U R A L LAW

In this fashion, then, all law, down to and inclusive of its posi­
tive individualization, is connected by means of the natural moral
law with the eternal law and lives on the latter. Thus rectitudo
practica, reasonableness or the relation to human nature still is,
and ought to be, the essential element even in the positive law. For
St. Thomas the law is somehow reason, not mere arbitrary will.21
The natural law remains the measure of the positive law. But
this position is intimately connected with the doctrine of the im­
mutability of the natural law and the enduring essential nature
of man, as well as with the primacy of the intellect over the will
in both God and man.
But can God, by His absolute power, dispense from the pre­
cepts of the Decalogue? St. Thomas unqualifiedly answers that
the Ten Commandments admit of no dispensation whatever.
“ Precepts admit of dispensation when1 there occurs a particular
case in which, if the letter of the law be observed, the intention of
the lawgiver is frustrated. Now the intention of every lawgiver is
directed first and chiefly to the common good; secondly, to the
order of justice and virtue, whereby the common good is pre­
served and attained. If, therefore, there be any precepts which
contain the very preservation of the common good, or the very
order of justice and virtue, such precepts contain the intention of
the lawgiver, and therefore are indispensable. . . .
“ Now the precepts of the Decalogue contain the very intention
of the lawgiver, who is God. For the precepts of the first table,
which direct us to God, contain the very order to the common and
final good, which is God; while the precepts of the second table
contain the order of justice to be observed among men, namely,
2i Hence St. Thomas is easily able to bring custom into harmony with law: “ Therefore
by actions also, especially if they be repeated, so as to make a custom, law can be changed
and set forth; furthermore, something can be established which obtains the force of law,
in so far as, by repeated external actions, the inward movement of the will and the con­
ceptions of the reason are most revealingly declared. For when a thing is done again and
again, it seems to proceed from a deliberate judgment of reason. Accordingly custom has
the force of a law, abolishes law, and is the interpreter of law” (Sumtna theologica,
la Ilae, q.yy, a.3).
 T H E AGE OF SCHOLASTICISM 57
that nothing undue be done to anyone, and that each one be
given his due; for it is in this sense that we are to take the precepts
of the Decalogue. Consequently the precepts of the Decalogue
admit of no dispensation whatever.” 22
But what of the Old Testament passages that appear to in­
volve divine dispensations from the natural law? In reply, St.
Thomas notes the sovereign dominion of God over men and over
concrete human actions and institutions: “ The precepts of the
Decalogue, as to the notion of justice which they contain, are
unchangeable; but as to any determination by application to indi­
vidual actions,— for instance, that this or that be murder, theft,
or adultery, or not— in this point they admit of change; some­
times by divine authority alone, namely, in such matters as are
exclusively of divine institution, as marriage and the like; some­
times also by human authority, namely, in such matters as are
subject to human jurisdiction; for in this respect men stand in
the place of God, though not in all respects.” 23

With Duns Scotus (d. cir. 1308), and with the principle of the
primacy of the will over the intellect so much emphasized by
him, there began inside moral philosophy a train of thought
which in later centuries would recur in secularized form in the
2° Ibid., q. 100, a.8. For "God cannot dispense a man so that it be lawful for him not
to direct himself to God, or not to be subject to His justice, even in those matters in which
men are directed to one another” (ibid., ad 2). Walter Farrell, O.P., aptly indicates the
metaphysical basis of this position of St. Thomas: "These precepts do not depend on the
will of God; they are not extrinsically but intrinsically valid, for the Natural Moral Law,
like all law, is essentially the work of reason not of will; in this case it is the divine reason
which cannot be changed" (The Natural Moral Law According to St Thomas and Suarez,
p. 120).
23 ibid., ad 3. Cl. also ibid., q.94, a.5 ad 2. In other words, St. Thomas supposes that in
such cases o f apparent dispensation God did not act as Lawmaker, but as Lord and Mas­
ter, with sovereign dominion over human life and property. But see the cautious and
sobering remarks of Jacques Leclercq, Les droits et devoirs individuels, Part I, "Vie,
disposition de soi” (Namur: Maison d’fidition Ad. Wesmael-Charlier, 1937), pp. 53 f., on
this now common solution. Of course, whether or not the traditional exegesis of all such
Old Testament episodes and passages is correct is another question. For instance, there
is neither any need nor any sound reason for holding that Yahweh ordered Osee to
commit fornication or adultery. Cf. A. Van Hoonacker, Les douze Petits Prophetes (Paris:
J. Gabalda & Cie., 1908), pp. 13 ff.
5* T H E N A T U R A L LAW

domain of legal philosophy. The principle that law is will would

be referred in legal positivism, as well as in the theory of will in
jurisprudence, to the earthly lawmaker (self-obligation).
For Duns Scotus morality depends on the will of God. A thing
is good not because it corresponds to the nature of God or, ana­
logically, to the nature of man, but because God so wills. Hence
the lex naturalis could be other than it is even materially or as to
content, because it has no intrinsic connection with God’s essence,
which is self-conscious in His intellect. For Scotus, therefore, the
laws of the second table of the Decalogue were no longer un­
alterable. The crux of theology, namely, the problem of the
apparent dispensations from the natural law mentioned in the
Old Testament and thus seemingly granted by God (the com­
mand to sacrifice Isaac, Raphael’s apparent lie, Osee’s alleged
adultery, the polygamy of the patriarchs, and so on), was now
readily solved.24 Yet St. Thomas, too, had been able to solve such
cases. Now, however, an evolution set in which, in the doctrine
of William of Occam (d. cir. 1349) on the natural moral law,
would lead to pure moral positivism, indeed to nihilism.
The will is the nobler faculty; the intellect is but the minister­
ing torch-bearer of the will, which is the master. Between God’s
essence and that of man there exists, apart from the fact of crea­
tion, no inherent connection, no analogy of being. Hence, too,
there exists no unchangeable moral order grounded in the na­
ture of things, in the ordered universe of being and value. As all
being is founded on the mere absolute will of God without par­
ticipation in His essence, so all oughtness or obligation rests solely
on the same absolute will. Oughtness is without foundation in
reality, just as the universals are merely vocal utterances (flatus
vocis) and not mental images of the necessary being of the ideas
in God. In this way Occam arrived at a heightened supernatural-
2* Cf. Walter Farrell, O.P., The Natural Moral Law According to St Thomas and
Suarez, pp. 122-30.
 T H E AGE OF SCHOLASTICISM 59

ism, but only to deprive almost completely the natural order of

its value.
For Occam the natural moral law is positive law, divine will. An
action is not good because of its suitableness to the essential na­
ture of man, wherein God’s archetypal idea of man is represented
according to being and oughtness, but because God so wills. God’s
will could also have willed and decreed the precise opposite,
which would then possess the same binding force as that which is
now valid— which, indeed, has validity only as long as God’s ab­
solute will so determines. Law is will, pure will without any
foundation in reality, without foundation in the essential nature
of things. Thus, too, sin no longer contains any intrinsic ele­
ment of immorality, or what is unjust, any inner element of in­
justice; it is an external offense against the will of God.
As a result, Occam, who sees only individual phenomena, not
universals, the concepts of essences, can likewise admit no tele­
ological orientation toward God is inherent in all creation and
especially in man; or at least he cannot grant that it can be
known. The unity o f being, truth, and goodness does not exist
for him. Moral goodness consists in mere external agreement with
God’s absolute will, which, subject only to His arbitrary decree, '
can always change. T o such an extent were God’s omnipotence
and free will extolled that much subtle speculation was devoted
to the question of whether God can, through His absolute power,
will hatred of Himself; a question which Occam and many of his
disciples answered in the affirmative. Man sins, therefore, because
and only so far as a positive law, by which he is bound, stands
over him. God, on the other hand, cannot sin because no law
stands above Him, not because it is repugnant to His holiness.
Hence there exists no unchangeable lex naturolis, no natural law
that inwardly governs the positive law. Positive law and natural
law, which indeed is also positive law, stand likewise in no inner
relation to each other. The identity of this thought structure with
to T H E N A T U R A L LAW

The Prince of Machiavelli, with the Leviathan of Hobbes, and

with the theory of will of modern positivism (the will of the
absolute sovereign is law, because no higher norm stands above
him) is here quite obvious.28

The dispute over whether the intellect or the will is the nobler
faculty had, in the moral positivism of Occam’s school, split the
scholastic doctrine of natural law to its very core. The scholastic
revival of the age of the Protestant Revolt, however, successfully
undertook the speculative rehabilitation of the lex naturalis and
ius naturale on an ontological basis, just as it also went back to
St. Thomas in its theology.
The philosophy of law received special and thoroughgoing
treatment at the hands of the Late Scholastics. The outstanding
figures in this field were, to mention but a few of the many im­
portant scholars, the Spaniards Vittoria (d. 1546), Suarez (1548-
1617) and Vasquez (d. 1604), and the Italian St. Robert Bel-
larmine (1542-1621).
The reasons for this more intensive preoccupation with the
problems of the natural moral law and philosophy of law were
many. T o begin with the doctrinal ones, Occamism had wrought
havoc in theology as well as in metaphysics and ethics. Reason had
been rendered barren. The so-called Reformers had drawn the ul­
timate conclusions from Occamism with respect to theology. Con­
temptuous of reason, they had arrived at a pregnant voluntarism
in theology as well as at the doctrine of natura deleta, of nature as
destroyed by original sin. Thereby the traditional natural law
became speculatively impossible.28 The spirit of the Renaissance,
On the positions of Scotus and Occam in this far-reaching controversy, see Anton-
Hermann Chroust, “ Hugo Grotius and the Scholastic Natural Law Tradition," The New
Scholasticism, X V II (1943), pp. 101-12.
2a The true relationship between the natural order (the realm of natural laws and of
the natural moral law) and the supernatural order (the realm of divine grace) is clearly
and concisely set forth by Oswald von Nell-Breuning, S.T.: “ Elevation to supernature
leaves human nature unchanged in principle. Therefore, human nature retains its full
value as a source of knowledge for social order. All principles for the structural plan of
 T H E A G E OF SCH O LASTICISM 6i
too. had made use of Occam’s separation of faith and knowledge
to emancipate secular thought or worldly wisdom, and to place
it in opposition to sacred learning. Pomponazzi (1463-1530),
after the manner of the Averroists, had spoken of a twofold truth:
what is true in philosophy may be false in theology, and vice
versa. Law as such was separated in a positivist fashion from the
eternal law when the natural moral law had been made into a posi­
tive act of God’s absolute will. Machiavelli (1469-1527) had secu­
larized this view and had drawn the consequences for politics. The
absolute power of God in Occam’s doctrine became at the hands
of Thomas Hobbes the absolute sovereignty of the king.
But there were also practical reasons. Not only in idea, but also
in actual fact the orbis christianus had ceased to be “ the world.”
The Spanish and Portuguese discoveries had brought to light
the East Indies and America, and the gentes dwelling there. This
event raised new and great problems for the ius gentium. The
first and extremely important treatise on international law. the
work of Francis de Vittoria, bears the title, De bello et de Indis.
Besides, the enormous expansion of trade in the early period of
modern capitalism raised new moral problems for the Late
Scholastics, as did also the process of political transformation
from feudal society to a world of states ruled by absolute sov-

human society are impressed upon human nature by God, and remain so; therefore, they
can be recognized in and deduced from this human nature with certainty. This is also
true of man exalted by grace or abased by sin. Just as grace elevates man above his mere
nature as a being without taking away anything from his human nature, so sin has not
changed the condition of human nature into something elsa True enough, there is no
longer a purely natural order since God has introduced a supernatural order and has
destined man for a supernatural goal; in fact, there never existed a man in the purely
natural order. (Thus the sinner can miss the supernatural goal, but he cannot nullify
his destiny for this goal.) The natural order is consummated by the supernatural order
in such a way that it remains fully unchanged. That is why the natural order, although
we can separate it from the actually given supernatural order only by abstract thinking,
is not merely a fancy, but a living reality whose misappreciation, denial, or debasement
at the same time not only misappreciates, denies, and debases supernature, but actually
deprives it of its foundation, thus making it untenable" (R eorganization o f Social E c o n ­
om y. T h e Social E n cyclical D evelo p ed an d E x p la in e d , trans. by Bernard W. Dempsey, S.J.
[Milwaukee: The Bruce Publishing Co., 1936-37], p. 17, note).
6s T H E N A T U R A L LAW

ereigns. Thus it came about that nearly every scholar of the

time composed treatises entitled De legibus and De iure et iusti-
tia.

The task of the Late Scholastics was, then, as Petavius so well

pointed out, to work out further, to develop fully and com­
pletely, what the thinkers of the golden age of Scholasticism, in
particular St. Thomas Aquinas, had taught implicitly and in
outline. They saw and carried out this task in the case of the
natural-law doctrine, too. The decline of the doctrine of natural
law set in only after them. So competent a scholar as Joseph Koh­
ler has held that “ if, then, a natural law is to be fashioned today,
it must be attached to these Spaniards of the age of Spain’s great­
ness, not to Hugo Grotius.”
In their theology and psychology these thinkers of Late Scho­
lasticism restored to honor the Thomistic doctrine of the divine
essence as source of the entire moral order and, with it, that of
the primacy of the intellect over the will. The natural law is
grounded in essence and reason, not in mere absolute will, in
God’s absolute power. God’s omnipotence is subordinated, hu­
manly speaking of course, to the decrees of His wisdom. Like
these, therefore, the essences of things are also unchangeable.
Potentia ordinata is that power in virtue of which God has
created, among all possible worlds and orders of being, precisely
the present one. Absolute power, on the other hand, is the power
through which He can do everything that is not in itself contradic­
tory. Hence God cannot cooperate in human sinning, and still
less can He be its total cause. The Occamist question of whether
God could will hatred of Himself involves an intrinsic impos­
sibility.
In short, the intellect grasps the pure essence of a thing, its
quiddity or whatness, and prescinds from actual existence. The
will, on the contrary, can lay hold of a being only as something
 T H E AGE OF SCHOLASTICISM 63
existing or to be brought into existence; it is directed to the
particular, to the individual. Intellectual apprehension is more
immaterial; it grasps essential being. The will in itself is blind,
in contrast to the intellect which apprehends the object imme­
diately. The will lays hold of the object only when the latter
is presented by the intellect as a known and valuable good. On
this depends the question of the possibility of an immutable nat­
ural law. Positivism in law and ethics corresponds to agnosticism
in epistemology.
Like the idea of God, the idea of law was also purged of Oc-
camist positivism. For the Late Scholastics the law belongs more
to the reason than to the will. The will, it is true, moves all
faculties to action. Yet it is blind: to arrange and direct are the
work of reason. The will is related to the intellect as a queen is to
a king. The will, the queen, manifests her desires to the king and
moves him. But the intellect, the king, enacts the law (Bel-
larmine).
The lex naturalis, therefore, is not related to the will o f‘God
in a simple positivist manner. It is related to God’s essence, to
His reason, whence emanates the eternal law whereof in turn
the natural law is, and ultimately every moral and positive law
should be, a participation. The natural law has for its proximate
principle the essential nature of man. It is a judgment of reason
concerning the conformity of moral action and nature. But at
the same time it shows that what is good ought also to be done.
God, who fashioned the essential nature of man with reason and
will, is simultaneously recognized as Lawgiver, too. T o state it in
another way, what the eternal law is in God actively, i.e., as will
in accordance with His essence, that the natural law is in man
passively: a law flowing from his essence and imbedded in it.
The mere light of natural reason that indicates the agreement or
disagreement of an action with man’s essential nature (Vasquez)
is insufficient by itself. There must in addition be the rational in-
6^ T H E N A T U R A L LAW

sight that an act in accord with reason and nature is also God’s
will (Suarez, Bellarmine).
This controversy had a still deeper significance. Suarez and
Bellarmine wished to stress the inner oneness of natural law and
eternal law. They wished to do this, moreover, by way of the
recognition of God as the Lawgiver who wills that actions cor­
respond to being, to essential nature. Vasquez, the Spanish Au­
gustine, had regarded rational nature, irrespective of the positive
will of God, as the primary ground of the obligation to obey the
natural law. For him, consequently, since an act of the lawmaker’s
will belongs necessarily to the nature of law, the natural law is
not properly law in the strict sense: it is not lex praecipiens, merely
lex indicans. This view, a very uncommon one among the Late
Scholastics,27 assumed great importance in the rationalist doc­
trine of natural law. Arriaga and Grotius were already teaching,
in order fully to bring out its immutability, that the natural law
would have force even if there were no God.28 Out of this there
developed an autonomy of abstract human reason conditioned
by the separation of the eternal law and the natural law, and
also the ethico-legal rationalism of the individualistic natural law
(a development which, by the way, Suarez had foretold in his
controversy with Vasquez). This loosening was thus the signal
for the outbreak of a fanatical rationalism in speculation, which
was bent upon drawing all possible conclusions from this isolated
and, later still, individualist ically interpreted pure rational na­
ture. Moreover, such fanaticism lacked all corrective of history
as the domain of God’s providential activity. T o the rationalistic
natural law corresponded Deism in theology.
The natural moral law is therefore a judgment of reason which
presents actions as commanded or forbidden by the Author of rea­
son, because the light of reason shows them to be in agreement
27 Cf. A.-H. Chroust, article cited, The New Scholasticism, XVII (1943), 114 !.
2s This important problem, together with its bearing on the nature of moral obliga­
tion, is discussed in Part II.
 T H E AGE OF SCHOLASTICISM 65

or disagreement with man’s essential nature; and at the same time

reason judges that God wills that which accords with nature: es­
sential being ought to be realized. In its essence and intellectual
content the natural law is absolutely dependent upon the divine
intellect; in its real existence, upon the divine will.29

In this way, not only was the connection between the eternal
law and the natural law maintained for later ages, but, for con­
temporaries, the true character of law was upheld against the
so-called Reformers who belonged to the school of Occam. For
the latter saw the natural law exclusively in the words of Scrip­
ture. Indeed, with their doctrine of natura deleta they could not
even attain to a moral law that is naturally good. Gratian’s
formula, ius naturae quod in Evangelio et lege (Decalogue),
which was now being misinterpreted, vanished. So, too, did Ul-
pian’s formula, quod natura omnia animalia docuit. Only now
was an elucidation of the ius gentium possible.
The Late Scholastics, like St. Thomas, included the Deca­
logue, regarded as belonging in its entirety to the lex naturalis, in
the contents of the natural moral law. They distinguished in this
connection the supreme principle, “ Good is to be done, evil
avoided,” and equally evident though already less universal prin­
ciples, which therefore embrace specific kinds of goodness. Such
are the following: Give to everyone his due; Worship must be
paid to God; Justice must be observed; Agreements must be
kept. From these follow by way of deduction additional precepts,
which concern individual goods and the institutions that protect
them. Thus theft, lying, adultery, and perjury are always for­
bidden because they are intrinsically evil.
On Suarez’ doctrine of the natural law, see the widely divergent expositions and
appraisals of Heinrich Rommen, Die Staatslehre des Franz Suarez, S.J. (M.-Gladbach:
Volksvereins-Verlag, 1927), pp. 43-77, and Walter Farrell, O.P., The Natural Moral Law
According to St Thomas and Suarez, pp. 48-72, 147-55. For an excellent presentation of
Bellarmine’s doctrine in its historical setting, cf. Franz Xaver Arnold, Die Staatslehre des
Kardinals Bellarmin (Munich: Max Hueber Verlag, 1934), pp. 13-75.
6f T H E N A T U R A L LAW

These teachers came to speak of the relationship of the natural

law to the positive law mostly in connection with political science,
and particularly in reference to the end of the state. Moreover,
connected with this problem is the question of the nature of law
in relation to morality.
Any positive law which offends against the natural moral
law is not a law that is binding in a moral sense, i.e., in con­
science. But only those laws are absolutely null and void that run
counter to the prohibitive natural law. Therefore a law that
would positively prescribe murder or perjury would not be a law
at all, nor may one obey it. The case where a law is opposed to
the affirmative natural law is different. The citizen must put up
with encroachment on the part of a government that deals un­
justly, e.g., in the matter of taxation, if through resistance the
public order, already threatened by the very fact of the unjust
law, would be still more gravely menaced. Only such authority as
enacts laws which are in conflict with the prohibitive natural law
ceases to be authority in the rightful sense and becomes tyranny.
Mere power can impose no inner duty of obedience. But this
truth has nothing to do with the fact that among the Indians, for
instance, laws prevail which are contrary to natural law. For
such laws are made by lawgivers and accepted by subjects or
members of the community, not because these laws are immoral
and bad, but because conscience, darkened through deficient
rational insight and troubled by passions, is unable to recognize
their inherent badness. Indeed, St. Thomas admitted such a pos­
sibility in the case of conclusions from the natural moral law.
Conversely, however, it follows from the fact of natura vul-
nerata as well as from the ethical character and goal of com­
munity life, and of the state in particular, that positive human
laws are absolutely necessary for determining the further in­
ferences from the first principles in the interest of a more exact
and readily discernible establishment of order and for the setting
 T H E AGE OF SCHOLASTICISM 57

up of institutions needed for community life. The natural-law

prohibition of adultery implies at the same time an affirmation
of marriage and of the general norms that are most needed for
its functioning as an institution. “ Thou shalt not steal” presup­
poses the institution of private property as pertaining to the
natural law; but not, for example, the feudal property arrange­
ments of the Middle Ages or the modern capitalist system. Since
the natural law lays down general norms only, it is the function
of the positive law to undertake the concrete, detailed regulation
of real and personal property and to prescribe the formalities
for conveyance of ownership.
The nature of law was likewise explored. As a rule, the Late
Scholastics employed the terms lex naturalis and ius naturale as
synonyms. But Suarez and Bellarmine, for instance, made a dis­
tinction when they expressly declared that violation of the lex
naturalis on the part of the Indians by no means constitutes
grounds for a just war: hence Christian princes are not justified
in subjugating these gentes by alleging their transgression of the
lex naturalis. Only an offense against the ius naturale warrants
such action. In this respect, indeed, states stand in the same rela­
tionship to one another as do persons, and the Indian states are
true states in the sense of law. Law, therefore, stands out in the
over-all picture of the moral realm by reason of its social char­
acter, its reference to another (whether person or group). Justice
is the virtue which has right (with which law in the technical
sense is concerned) for its object. It is essentially directed to one’s
fellow man. As commutative justice it has to do with those who
are upon an equal footing in the social complex; as legal justice
it concerns the rights of authorities or superiors, which it com­
mands subjects to respect; as distributive justice it obliges au­
thorities, in their administrative activity, to give to everyone his
right according to his function and merit in the ordered whole.
Thus the norms that have to do with the life in common of men
68 T H E N A T U R A L LAW

and groups (their social units, arrangements, and social func­

tions) are the object of justice. They are thereby law.
These norms constitute natural law insofar as such regula­
tions pertain, as immediately necessary, to the essential nature
and essential fulfillment of man in the vita oeconomica (mar­
riage, family, and occupational groups organizing themselves
according to social functions in the service of the common good,
for the peaceful ordering of the people) and in political life
(state and international community). Since these regulations
are necessary, their realization, improvement, and maintenance
against lawbreakers are enforceable by the public authorities.
Law wills that this be done without further ado, not merely be­
cause morality demands it. The debitum iustum (ex iustitia) thus
differs from what is owed ex pietate or ex gratitudine precisely
because gratitude is of its very nature unenforceable: if obtained
by force, it ceases to be a moral action at all. Seneca in his day
raised the question of why no suit can be brought against an
ingrate. Owing to the failure of the ancients to work out this
distinction, he did not find the right answer, namely, that grati­
tude, like pietas, is simply unenforceable. The son who has to
be compelled by court action to support his impoverished, in­
capacitated father fulfills indeed a legal duty, and the state rests
satisfied. No one will contend, however, that through this ful­
fillment by court order he has complied with the moral duty of
pietas.

The great accomplishment of the Late Scholastics lay in the

domain of the ius gentium. They cleared up, before Grotius,
the ambiguous distinctions of Roman law that had crept in during
the course of centuries. Ius gentium in the proper sense is not
ius naturale, although the precepts of the latter are evidently
valid for the ordering of the community of peoples. Thus dif­
ferentiated, ius gentium is the quasi-positive law of the inter-
 T H E AGE OF SCHOLASTICISM 69

national community: it is founded upon custom as well as upon

treaty agreements. The basic norm of this positive ius gentium
is, besides the material principles of the natural law, especially
the axiom, pacta sunt servanda. T o positive international law
belong the doctrines of war, truce and peace, international trade
and commercial treaties, and, in addition, the law concerning
envoys. But the requirements that a war must be just, and that
the community of peoples must establish and foster friendly inter­
course, pertain to the natural law.
From this ius gentium (most properly so called), they further
distinguished international private law. T he latter contains
norms regarding legal institutions that are common to nearly
all peoples, and hence are closely related to the natural law. Such
are the general formal legal institutions touching purchases, leases,
promissory notes, contracts, ownership, the family and inheri­
tance. For, despite regulations that differ in detail, all these legal
institutions have, among almost all peoples, many things in com­
mon over and above their natural-law foundation.
 CHAPTER III

The Turning Point: Hugo Grotius

A m o n g historians of philosophy the view prevailed for some time

that Rene Descartes (1596-1650), a deus ex machina as it were,
founded modern philosophy with its primary, indeed almost ex­
clusive, concern with the thinking subject, with the study of
individual consciousness and experience. But this view has long
since been shown to be unwarranted. Descartes’ philosophical
system was no creation ex nihilo. The latest research has con­
clusively demonstrated Descartes’ connection with Scholasticism.
There existed before Descartes no “ desolate waste of scholastic
subtleties and sophistries.’’ What did exist was a great philo­
sophical system, and Descartes still stood in its stream, as the his­
tory of the various philosophical problems proves.
Quite as untenable is the view, long held, that the doctrine of
natural law began with the Dutch scholar, Hugo Grotius (1583-
1645), often hailed as the Father of Natural Law. For Grotius
was still closely connected with the teachers of the preceding
centuries. He stands out more through the first formal inclusion
of natural law and positive law in international law than through
any intellectual contribution of his own. He may be said to have
marked the transition from the metaphysical to the rationalist
natural law. The notion that the natural law would still have
some validity, etsiamsi daremus . . . non esse Deum, aut non
curari ab eo negotia humana/ played a certain role in his think-
l "What we have been saying would have a degree of validity even if we should con­
cede that which cannot be conceded without the utmost wickedness, that there is no
God, or that the affairs of men are of no concern to Him” (De jure belli ac pads libri tres,
Prolegomena, n , trans. by Francis W. Kelsey and others for The Classics of International
 T H E T U R N IN G POINT: HUGO GROTIUS 71
ing. Yet Grotius did not profess the implied complete autonomy
of human reason as the sole and not merely the proximate source
of the natural law. He considered God to be the highest source of
the natural law, and he likewise regarded Holy Scripture as a
principle of knowledge on an equal footing with reason. Grotius
still lived too much in and with tradition to be able to construe
the natural law in a deistic manner.2 He understood recta ratio
in the same sense as did the great Spaniards. One may even say
that, in a world which had forgotten the achievement of past
ages, his celebrated definition of natural law represents an at­
tempt to settle by compromise the controversy between Suarez
and Vasquez, a controversy that bulked large in his day.8
The famous definition runs as follows: “ The law of nature
[ius naturale] is a dictate of right reason which points out that
an act, according as it is or is not in conformity with rational
[and social] nature, has in it a quality of moral baseness or moral
necessity; and that, in consequence, such an act is either for­
bidden or enjoined by the author of nature, God.” 4 Here, in
fact, is Vasquez’ doctrine of lex indicans combined with Suarez’
intention to bring out the character of the lex naturalis as lex,
which, in its coming into force or in its existence, is derived from
the will of God. In addition, the significant adjective socialis oc­
curs in the same way among the Late Scholastics for the purpose

Law, edited by J. B. Scott, Oxford-London, 1925). According to A.-H. Chroust, "this

famous passage from Grotius is but a rebuke of William of Occam’s and Hobbes’s
voluntarism or ‘positivism’—by that we mean something valid because of its being
posited or willed by someone—and an indirect proof of Grotius’s belief, quite in accord­
ance with the Thomistic tradition, in the perseitas boni et iusti” (“ Hugo Grotius and
the Scholastic Natural Law Tradition,” The New Scholasticism, XVII [1943], 126). Cf. also,
ibid., notes 88 and 8g.
2 The thesis of Chroust is that “ Hugo Grotius constitutes but a direct continuation of
the great Natural Law tradition which stretches from St. Augustine to Suarez, and which
culminated in St. Thomas” ("Hugo Grotius and the Scholastic Natural Law Tradition,"
ibid., p. 125).
8 Chroust is of the same opinion (ibid., pp. 129 f.).
*D e jure belli ac pads libri tres, Bk. I, chap. 1. The important qualifying phrase and
social is strangely missing both in Kelsey's English translation and in the Latin edition
(1646) on which it is based.
T‘ T H E N A T U R A L LAW

of distinguishing and contrasting lex naturalis and ius naturale.

In Grotius’ thought the socialitas of rational nature was not yet,
as it was to be for Pufendorf, the sole source of natural law.
Grotius followed the Scholastics even in his psychology. He
placed the rectitude of voluntary action in a twofold conformity:
that of the intellect with the thing or object, and that of the will
with the intellect. Nevertheless his design of vindicating the ab­
solutist doctrine of James I of England drove him back again to
the primacy of the will. He accordingly defended the nominalist
doctrine that essentially bad acts are evil, not because they are
intrinsically at variance with God’s essence, but because they are
forbidden by God. Of course he looked upon the further ques­
tion of why God in His freedom has so decreed as unanswerable
by human reason.
The Late Scholastics had sought to determine the relationship
between law and morality from the standpoint of the virtues:
right is the specific object of justice as distinguished from the
other cardinal virtues (prudence, temperance, fortitude). In its
threefold form (commutative, distributive, and legal), justice
regulates the social relations: first, of those possessed of equal
rights; secondly, of public authorities to their subjects; and
thirdly, of citizens to public authorities or to the state. In Grotius’
system sociality plays a disproportionate part. Law is that which
results from the appetitus socialis. Morality has little to do with
sociality; it rather represents normative judgments concerning
the worth or worthlessness of things.5 Furthermore, like Suarez,
Grotius did not regard the debitum ex pietate as a debit-urn ius-
tum, since it is neither subject to an action at law nor enforceable.
Again, as among the Greeks and Scholastics, the ancient concep­
tion of justice as virtue itself is found in his writings. Thus the
ius naturale comprises the whole of natural ethics.
It was unfortunate for Grotius that he gave little or no heed
<>But see A.-H. Chroust, op. cit„ pp. 131-33.
 T H E TU R N IN G POINT: HUGO GROTIUS 73
to the circumstances which the Scholastics had always stressed:
the circumstances and conditions which in the case of the affirma­
tive precepts of the ius naturae determine the application of a
norm that in itself is unchangeable. (Suarez says, for instance,
that obedience to the state in time of war takes precedence over
the natural-law duty of a son to care for his parents.) The Scho­
lastics had held that only the first principle of the natural law
is clearly evident, and that at most the immediate conclusions
(the Decalogue) share in such evidence, which, however, may
yet be obscured by the passions. On this ground they had ac­
knowledged the necessity of positive law, whose function, they
contended, is to enlighten us on the good to be done and by penal
sanctions to restrain us, dominated as we are by our passions,
from the evil to be avoided. But Grotius was a rationalist. He
believed it possible to derive by strict logic a suitable system of
rational law having force that would be great enough to bind
the will: a body of law with detailed prescriptions covering debts
and property, the family institution and inheritance. The Scho­
lastics, on the other hand, considered only the general institu­
tions themselves of marriage, property, and contract as belonging
to natural law, not the particular prescriptions about marriage
and the family, possession and the form of private ownership,
and the like.
Grotius’ undying merit was his systematizing of international
law, which he placed upon the solid foundations provided by
natural law. Grotius, who paid homage to his predecessors, to
Vittoria and Suarez among others, lived in an age of fierce wars.
The civitas Christiana was being rent asunder in its great civil
war (Thirty Years’ War, 1618-48), which, like all civil wars, was
being fought with enormous cruelty and frequently outside the
pale of legal norms. In the midst of all this, however, he put
forward with great power and impressiveness, cogently and sys­
tematically, the idea of the rule of law even in wartime. He
74 T H E N A T U R A L LAW

thereby revived the intellectual unity of the West, after its reli­
gious unity had been rent, by means of the great traditions of the
very Christianity which had always honored reason. Thus he
substituted intellectual solidarity based upon reason for solidarity
based upon a now divided faith.
Yet it must be said that Grotius, precisely because of such
rationalism, was not so happy in his treatment of the ius gentium
as were the Late Scholastics. T he clear separation between the
natural-law contents and positive contents of the ius gentium, as
occurs in Suarez’ treatment, was, at the hands of Grotius, again
partly lost. The path was thus cleared for Pufendorf’s equation
of ius naturale and ius gentium.
Grotius thus stood in the twilight between two great epochs.
Still linked by many ties to the preceding age, he yet served to
transmit to the natural-law theory of the modern period its dis­
tinguishing marks: rationalism, sociality, and particular political
aims. In all this he resembled Descartes, whose close connection
with the epistemology and metaphysics of Late Scholasticism has
been uncovered by recent research. Nature makes no leaps: this
axiom is valid also in the history of thought. Historians of philos­
ophy, unfortunately, sometimes mistake emphasis for novelty.
 CHAPTER IV

The N atural haw in the Age o f

Individualism and Rationalism

T so-called age of natural law did not, properly speaking, com­

he
mence with Hugo Grotius. It began rather with Pufendorf, who
undertook to expound the doctrine of Grotius. The net result of
the age was a disastrous setback, from the opening of the nine­
teenth century, for the natural-law idea among the modern phi­
losophers and practitioners of law who were unacquainted with
the older Christian tradition.
The new natural law differed in many respects from the tradi­
tional one. It represented a peculiar hypertrophy of the older
conception. Numerous factors were responsible for this develop­
ment, and they arose from the intellectual evolution and political
circumstances of the period.
Humanism had declined, and with it had gone exaggerated
esteem for antiquity in general and, in particular, for Roman law
as ratio scripta. Roman law, in its degenerate form of usus
modernus and with its many archaic-sounding formulas, could
not satisfy this age of reason.
Deism in theology led to a high regard for the element of law
in nature. It led also to an abhorrence of all sorcery, of belief in
demons, of any supposed mystical influence of the transcendent
Deity upon a world that moves in accordance with unalterable
laws. A real enlightenment was declared necessary for a clear
knowledge of the laws. Not faith, however, but reason was to
provide such enlightenment. For the law lies in reason, and specu-
75
 T H E N A T U R A L LAW

Iative reason is able to derive from itself, from contemplation of

its own abstract nature, all laws, all morality, and all right in the
form of axioms. Indeed this holds good even if there be no God,
who thenceforth appears as merely the ultimate source of morality
and law (apart from the continuation of tradition at the hands,
for instance, of Leibnitz and the theologians). Whole systems of
ethics and law were now worked out in minute detail by scholars
who were carried away by a veritable passion for speculation.
Such speculation also differed considerably from the prevailing
inferior law which still recognized sorcery, belief in demons, and
things of a mystical nature.
Furthermore, a jurisprudence adapted to the needs of the ad­
ministrative machinery of the centralized absolute monarchy
seemed, at least in the eyes of the rationalists, out of the question
on the basis of the existing law. For this law was split up accord­
ing to provinces and estates or social classes. Besides, its feudal
forms had been rendered antiquated by the rise and growth of
capitalism; it had also become rigid and unsuited to the time in
the case of privileged guilds, not to mention the monstrosity of
imperial law which no less a person than Pufendorf had so thor­
oughly ridiculed in a work, De statu imperii, that appeared under
a pseudonym.

The thesis of the autonomy of human reason, as well as the

view that the existing law constituted unwarranted fetters, was
closely bound up with the nascent socio-philosophical individual­
ism of the age. The clearest manifestation of this individualistic
bent is found in the doctrine of the state of nature, which now
became the starting point of natural-law speculation after having
been in the Middle Ages but a condition of mankind with the­
ological significance alone. (The difference may be schematized
thus: the natural law as the idea of law in and above the neces-
 T H E AGE O F INDIVIDUALISM AND RATIO NALISM 77

sary positive law— the natural law as law of the state of nature
before and above the positive law.)
From the same source stemmed the peculiar methodological
starting point of all these systems of natural law. Thinkers did
not set out, as in the earlier period, from the essentially social
nature of man in which the entire order of social institutions
(marriage, family, state, international community) and the basic
norms of these exist potentially in such a way that the essence is
fulfilled only in the completion and hierarchical ordering of
social forms through the various “ imperfect” societies up to the
“ perfect” society. The point of departure was empirical nature
discovered by means of abstraction, from whose psychological mo­
tive force, viewed as fundamental, the system of ethics and of
natural law was deduced in a rationalistic manner. For Hobbes
this was selfishness; for Pufendorf, sociableness as mere formal
sociality; for Thomasius, happiness, i.e., “ praiseworthy, pleasant,
carefree life.”
In this way a whole detailed system of natural law was in exis­
tence, or was considered to have been in force, before social life,
with its essential forms and with the historically contingent par­
ticularities of such forms, had worked itself out in history, i.e., had
evolved after the manner of an entelechy. This natural law was
held to cover the civil law of contracts, the family, inheritance,
and property; it was even made to include procedural law and
especially constitutional law. Surrounded with the halo of
naturalness and reasonableness, the various natural-law systems
accordingly signified, in respect to existing conditions that cried
out for reform, an ideal which the codifications of the close of the
eighteenth century sought to realize, whether in a revolutionary
(Rousseau) or conservative (Hobbes) or reformist manner (en­
lightened despotism). With all this was now readily combined the
ancient Stoic glorification of the pre-political state of mankind,
7* T H E N A T U R A L LAW

except where this condition was construed by Hobbes, as already

indeed by Epicurus, as a war of all against all.
T o these favorable factors of an ideal order corresponded prac­
tical ones that were no less favorable. The Enlightenment was
first of all an affair of the ruling class, the nobility and the intel­
lectuals of the age, clerics and men of science. The latter, how­
ever, were encouraged by the princes precisely because and so far
as these recognized their function of governing as a duty. En­
lightened despotism, to use the label current in resentful liberal
circles, was a great patron of the natural law or, as it henceforth
was usually and quite significantly styled, the law of reason. For
this law placed in the hands of the princes the weapons with
which to break down the class privileges of the nobility, and per­
haps of the guilds and provincial estates as well, which hampered
the uniform administration of the state. Furthermore the En­
lightenment with its accent on education assigned to the state the
task, through the agency of the police, of educating the citizen
and of making the state wealthy in the mercantilist sense.
Thus this individualistic natural law was especially adapted to
loosen the traditional, hardened social order and to furnish the
princes with subjects, not, of course, as mere objects of arbitrary
will, but as legal subjects with innate subjective rights. They were
then, as objects of education, admirably suited to the higher idea
of man that was proper to the Enlightenment. If, therefore, the
individualistic root of this natural law was everywhere the same,
this was in no way the case regarding the liberalist consequences
which resulted from it when deeper thought was given to the
matter. These consequences appeared in Rousseau’s system and
in the French Revolution, as well as in the natural-law doctrines
of Locke and of early German liberalism: what was desired was
a bourgeois natural law. They were wanting, however, both in
Hobbes’ doctrine and in the natural-law systems of Pufendorf and
Thomasius.
 T H E AG E OF INDIVIDUALISM AND RATIO NALISM 79

Closely connected with this political consequence, whether of

the police-state with its educational function or of the liberal state
with its restricted function of guaranteeing individual liberty,
was a further break with tradition on natural-law grounds. This
newer natural law constituted the first attempt to construct a
lay or secularist theory of ethics and politics. Hobbes’ purpose in
devising his doctrine of natural law was admittedly the destruc­
tion of independent ecclesiastical law. His aim was to subordinate
the latter to, and incorporate it in, the natural law of the omnip­
otent and sole person of the state represented by the monarch.
Enlightened despotism likewise held the view that the Church,
though indeed of importance sociologically and practically, was
but a division of the cultural and educational department of the
absolute monarchy. The peculiar totalitarian character of the
ius naturae of that period, identical as it was with moral phi­
losophy, was the means adopted for forcing the Church into the
service of the state.
Moreover, rationalism and the Enlightenment had rendered
the old, mystical foundation, which had emerged from the semi­
obscurity of immediate divine origin, incapable of supporting
the state and royal power. Now, however, the doctrine of a state
of nature together with the various contract theories concerning
the transition to the status civilis afforded a new basis, though
an insecure and perilous one. The same intellectual device served
Hobbes for laying the foundation of state absolutism; it served
Pufendorf for laying the foundation of enlightened despotism,
which denied the ancient, traditional right of the people to re­
sist; and it served Rousseau for laying the foundation of the sole
admissible omnipotence of the democratic state. The French
revolutionaries also made use of it for reducing state functions to
a minimum; for establishing the rights, acknowledged also on
other grounds, of man and of the citizen: and for vindicating the
right to resist the power of the state (Constitutions of 1792 and
So T H E N A T U R A L LAW

1793). “ The tamest and lamest theories, no less than the preach­
ing of world betterment through the guillotine and the French
wars of conquest, were carried out in the name of the law of rea­
son. Natural law was an intellectual trend, not a uniformly ex­
pounded doctrine’’ (Pfaff and Holfmann).
For social reformers, that is, for enlightened despots and for
social revolutionaries like Rousseau, this magnified natural law
based on individualism thus became the starting point. It was
set down in constitutions as fundamental law. In the comprehen­
sive codifications of the time it served to break down the organiza­
tion of society by estates and to build up the modern bourgeois
social order. As a special science, however, or as a general con­
viction, it thereupon vanished just as quickly. This outcome was
caused either by the achievement of such eminently political
aims of a natural law with reformist or revolutionary overtones:
or by the fact that after the climactic orgy of 1793-96 the goddess
Reason was deposed and History (Haller, De Maistre, Donoso
Cortes) or rather Providence, working in history and discernible
in its activity, was again enthroned.

What differentiated this newer natural law from the ius na-
turale perenne were not of course its political aims alone; these
were merely more conspicuous. The essential distinguishing
mark was the importance of the doctrine of the state of nature,
which attained, as in Defoe’s Robinson Crusoe (1719), such un­
expected and widespread popularity. Thence stemmed the preg­
nant ideas of liberty and equality. And fully in keeping with it
was also the comprehensive moral philosophy of deism, which
concealed itself under the title of ius naturale and, after first dis­
regarding the eternal law, finally culminated in the complete
moral autonomy of reason (Kant).
The individualist starting point led also to a failure to recog­
nize the necessary forms of social life. If the past had looked upon
 T H E AGE OF INDIVIDUALISM AND RATIO NALISM 81

these as, so to speak, germinally contained in the idea of man,

they could now, from the standpoint of the free individual, be
regarded only as status adventicii, as superadded for various, non-
essential reasons: sociality, utility, or mere external perfection.
In view of the original freedom, they could no longer be acknowl­
edged as intrinsically necessary; in their contents as well as in
their existence they must be founded solely upon free association,
upon the free contracts of individuals. For this type of natural law
the contractual form is the basis not only for the coming into
existence of concrete social forms, but also for their normative
contents. The essence of social forms is not something objective;
it is rather, like their existence, dependent upon the will of in­
dividuals. For the individualist doctrine there exists, as has already
been stated, no categorical or a priori sociality of man as such,
but only a pure sociability. In keeping with this view was a
political theory that manifested itself in the two extremes of
Hobbes’ omnipotent monarchy and Rousseau’s omnipotent
democracy: the princely police-state with a maximum of func­
tions and the constitutional state of 1789 and later with a mini­
mum of functions. Individual rights belonging to the state of
nature were viewed either as definitively surrendered in the
political and governmental contract (Hobbes), or as inviolable
and hence to be brought over intact into the status civilis.
These natural-law doctrines displayed little understanding of
the graduated order of the forms of social life that resides in the
nature of man as a social animal. They showed no appreciation
for the family as a social institution with an essential end of its
own (they dealt only with marriage and the parental relation­
ship). They showed no concern for the occupational-group or
corporative structure, hence for the multifarious social forms that
in all domains of life lie between the state and the individual.
They showed no regard for the well-known principle of subsidi­
arity, according to which the highest community, the state, should
8s T H E N A T U R A L LAW

leave to other associations the functions and ends which these

should and can fulfill. They knew, in effect, only the harsh an­
tithesis of individual and state. They likewise lacked an under­
standing of the particular nature of the Church as a “ perfect”
society: it became either a department of the state or a spiritual
free fellowship, not an institution.
These specific types of the newer natural law, so varied in their
consequences, manifested themselves most clearly in Hobbes,
with his pessimistic view of man; in Rousseau, who took an opti­
mistic view of human nature; in Pufendorf and Thomasius, who
lived in the shadow of enlightened despotism; and, finally, to say
nothing of the numerous mixed forms, in Kant.
It was here that the definite break with tradition took place.
From the time of Pufendorf fun began to be poked at the “ fancies
of the Scholastics.” From here on, an anti-Aristotelian nominal­
ism became, expressly or tacitly, the basis of philosophy. And it
is permissible to believe that this disdain for tradition was later
avenged when, in the nineteenth century, this natural-law think­
ing came in turn to be disparaged. Indeed, the same failure to
understand tradition then led the nineteenth century to assume
that, by refuting this natural-law doctrine of the seventeenth and
eighteenth centuries, it had overthrown the natural law itself
with its philosophical tradition of over two thousand years.

The entire theory of Thomas Hobbes (1588-1679) amounts at

bottom to a denial of the natural law. The English thinker, who
stands forth as a gloomy fellow-traveler of Epicurus, the cheerful
ancient, pictured the state of nature as a savage, lawless condition
of war of all against all, as chaos. Here we have another illustra­
tion of the relationship that exists between epistemology and
moral philosophy. Hobbes, the nominalist of Occam’s school,
held that reason is utterly unable to know universals, i.e., ideas.
Words denoting universal concepts are mere names. Reason finds
 T H E AGE OF INDIVIDUALISM AND RATIO NALISM 83

itself obliged to devise and assign them arbitrarily, without any

foundation in fact and reality, for the purpose of introducing
order into the chaos of sense impressions. In moral philosophy,
too, the passions hold first place. Man in the depths of his being
is what the state of nature shows him to be: a wolf, wicked, de­
voted solely to self. In the state of nature, consequently, there
exist only lawless individuals, in whom is found no natural tend­
ency to live in society; and man’s life is “ solitary, poore, nasty,
brutish, and short.” 1 The war of all against all is the reverse side
of the widely cherished and taught right of all to all things. In
reality, no law of the status naturalis exists, as we find it in the
dreams of Rousseau and in the fanciful deductions of Pufendorf
and many of his disciples.
The same selfishness and the dictates of right reason, that is,
the consideration of one’s greater advantage and of peace, de­
termine the individuals to enter by way of a covenant into the
status civilis and to give up as many of their rights to everything
as may make peace possible. But, that peace may be possible, all
contracting parties must yield their rights to the Sovereign, the
state personified, whether this be organized through the covenant
in a monarchical manner or in a more or less democratic manner;
either form is admissible, according to Hobbes.2 Moreover,
1 Thomas Hobbes, Leviathan, or the Matter, Forme if Power of a Commonwealth,
Ecclesiasticall and Civill, ed. by A. R. Waller (Cambridge: The University Press, 1904),
Part I, chap. 13.
2 Hobbes argues as follows: Whereas the agreement of irrational creatures is natural,
“ that of men, is by Covenant only, which is Artificiall: and therefore it is no wonder if
there be somwhat else required (besides Covenant) to make their Agreement constant
and lasting; which is a Common Power, to keep them in awe, and to direct their actions
to the Common Benefit.
"The only way to erect such a Common Power, as may be able to defend them from
the invasion of Forraigners, and the injuries of one another, and thereby to secure them
in such sort, as that by their owne industrie, and by the fruites of the Earth, they may
nourish themselves and live contentedly; is, to conferre all their power and strength
upon one Man, or upon one Assembly of men, that may reduce all their Wills, by plural­
ity of voices, unto one Will: which is as much as to say, to appoint one Man, or Assembly
of men, to beare their Person; and every one to owne, and acknowledge himselfe to be
Author of whatsoever he that so beareth their Person, shall Act, or cause to be Acted, in
those things which concerne the Common Peace and Safetie; and therein to submit their
84 T H E N A T U R A L LAW

properly speaking, only this covenant, which springs from the

basic natural-law norm of self-preservation, is natural law. For
Hobbes, then, the natural law, despite all the formulas he adopts
and cites from time to time, is wholly comprised in the axiom,
“ Agreements must be kept.” Upon this fundamental principle
is based the will of the omnipotent state, so that henceforward
all law is but public authority; it is but the positive law of the
state, inclusive of Church law. The political aim of the Hob-
besian natural law, the ideological justification of absolute gov­
ernment (especially of the Stuart kings), becomes exceedingly
plain here. Hobbes, whose individualism led him to insist that
contract affords the sole possible basis of rights, derived from the
principle that agreements must be kept even a son’s duty to obey
his father, and so on. The reckless rationalism of the man found
expression both here and in his demand that in speculation one
must start by viewing men as beings that have shot forth from the
earth like mushrooms, as at once full-grown.3 From his individual­
ism sprang likewise his antagonism toward corporative organiza­
tions like the guilds and other self-governing economic and social
Wills, every one to his Will, and their Judgements, to his Judgment. This is more than
Consent, or Concord; it is a reall Unitie of them all, in one and the same Person, made
by Covenant of every man with every man, in such manner, as if every man should say
to every man, I Authorise and give up my Right of Governing my selfe, to this Man, or
to this Assembly of men, on this condition, that thou give up thy Right to him, and
Authorise all his Actions in like manner. This done, the Multitude so united in one
Person, is called a COMMON W EALTH, in latine CIVITAS. This is the Generation of
that great LEVIATHAN, or rather (to speake more reverently) of that Mortall God,
to which wee owe under the Immortall God, our peace and defence. For by this Au-
thoritie, given him by every particular man in the Common-Wealth, he hath the use of
so much Power and Strength conferred on him, that by terror thereof, he is inabled to
forme the wills of them all, to Peace at home, and mutuall ayd against their enemies
abroad. And in him consisteth the Essence of the Common-wealth; which (to define it,)
is One Person, of whose Acts a great Multitude, by mutuall Covenants one with another,
have made themselves every one the Author, to the end he may use the strength and
means of them all, as he shall think expedient, for their Peace and Common Defence.
“ And he that carryeth this Person, is called SOVERAIGNE, and said to have Sov-
eraigne Power; and every one besides, his SU BJEC T ” (Leviathan, Part II, chap. 17).
3 Because of his clarity and pungency of style (not to mention his “ scientific” mate­
rialism), George H. Sabine regards Hobbes as “ probably the greatest writer on political
philosophy that the English-speaking peoples have produced” (A History of Political
Theory, p. 457). On Hobbes' political philosophy, cf. especially J. Vialatoux, La cite de
Hobbes. Theorie de Vitat totalitaire (Paris: J. Gabalda et Compagnie, 1955).
 T H E AGE OF INDIVIDUALISM AND RATIO NALISM 85

groups. As sharers in the absolute power or the sovereign or

limitations upon it, he considered such bodies directly opposed
to the natural law: they are “ like wormes in the entrayles of a
naturall man.” 4
In the hands of Hobbes, therefore, the natural law became,
paradoxically enough, a useless law, compressed into the single
legal form of the social and governmental contract of subjec­
tion. The natural law effectively comprises only the basic norm,
“ agreements must be kept,” if one disregards the still more para­
doxical natural law of the state of nature with its norm of selfish­
ness. All else is pure will. Hobbes’ doctrine is the theodicy of
Occam secularized, and the extreme consequence of the proposi­
tion that law is will.

Thus Hobbes altered the meaning of the words “ nature” and

“ natural,” a process that characterizes the entire period of modern
philosophy from the time of Descartes. “ Nature” and “ natural”
become the opposite of civitas, “ reason,” and “ order.” In the
philosophy of Hobbes and Baruch Spinoza (1632-77) human
nature is at bottom governed by the passions and not by reason.
The status naturalis is a condition without any obligation or
duty. It is a state in which, as Spinoza repeatedly asserts, might
is right. This natural state of man is ruled by two things: fear of
the might of others and power to instill fear into others. Hobbes
denied that man has a natural inclination toward mutual help
and love, which St. Thomas speaks of so frequently. Hence law
and the order of law cannot be derived from human nature; they
become the work of the sovereign. What remains of the older con­
ception of human nature as the source of natural law is the con­
tention that the state originated in the fear of violent death and in
the urge to render life and property secure. The state, together
with its law which has its source in the absolute will of the sov-
‘ Leviathan, Part II, chap. sg.
86 T H E N A T U R A L LAW

ereign, is the savior of man from the natural law of “ might is

right” ; it affords security and protection by monopolizing all
power; and it demands as a price strict obedience and subordina­
tion through identification of natural law with positive law.
The older idea of natural law as an ethical system with material
contents thus loses all its functions: namely, to serve as a moral
basis for positive law; to give men a standard and critical norm
for the justice of positive law; to represent the eternal ideal for
which the historical state, as lawgiver and protector of justice,
ought to strive. As a consequence the state, unlimited because
even the revealed divine law is authoritatively interpreted by
it, becomes, in Hobbes’ phrase, the “ Mortall God.” No appeal
from this all-powerful being to natural law is possible, because
the state is law in all its plenitude. In reading Hobbes we can
feel the solemnity with which he invests the state, the sovereign
power, a solemnity which earlier centuries reserved for God A l­
mighty. What Hegel later says of the idea of the state, Hobbes,
the nominalist denier of ideas, asserted of the individual historical
state. The consequence of this change in the meaning of “ na­
ture” is thus clear. Since nature is bad, and since the status na-
turalis is a condition of “ warre of every man against every man,” 5
the state becomes good, and its positive will becomes the supreme
norm of justice, admitting of no appeal. The phrase “ Mortall
God” is to be taken literally, not as a mere figure of speech.

The philosophy of Rene Descartes underlay another shift in

the meaning of human nature. From this shift sprang, as from
its source, the individualist and starkly rationalist strains of the
newer natural law. According to St. Thomas, it is, properly speak­
ing, neither the intellect nor the senses that understand, but man
through both; the natural law is a participation in the eternal
law; and the moral law is objectively “ given” in human nature
« Ibid., Part 1. chap. 15.
 T H E AGE OF INDIVIDUALISM AND RATIO NALISM 87

and in the essential order of things. For Descartes, on the other

hand, man is a res cogitans, a being that thinks. It has indeed been
pointed out by Jacques Maritain that Descartes gives man the in­
tellectual power of an angel, that his is an angelic epistemology.
Descartes holds that man, from his innate ideas, from the ideas
present in his consciousness, can construct the world along the
lines of mathematical reasoning, the ideal of science. All that
man needs to do is constructively to develop what is in human
reason, that is, the innate ideas. The individual intellect or rea­
son thus becomes self-sufficient. It does not need the educative
cooperation of other minds. Thus the very spiritual root of so­
ciability is denied. Through his “ angelism,” therefore, Descartes
became the father of the individualist conception of human
nature.8
But this is not all. The doctrine of the res cogitans, of self-
sufficient human reason that has now become the nature of man,
led to a passion for systematic constructions so typical of rational­
ism. According to St. Thomas, human reason was never the cri­
terion of truth. The or do rerum, of which man’s nature is a
part, is the measure of man’s knowledge. Things themselves, as
objective data, measure the human mind. But the angelic quali­
ties of Descartes’ res cogitans, as well as the view that all truth
exists germinally in the mind, render the objective ordo rerum
superfluous. Suarez’ prediction of what would happen should
human reason be made the source of the natural law now came
true. Rationalism soon made human reason and its innate ideas
the measure of what is. Human reason could now indulge in the
uncontrolled construction of systems that has ever characterized
the natural law of rationalism.
This process reached its climax in Kant. Human reason now
becomes the sovereign architect of the order of knowledge; it
e Cf. Jacques Maritain, Three Reformers. Luther-Descartes-Rousseau (New York:
Charles Scribner’s Sons, 1929), pp. 54 ft.
8? T H E N A T U R A L LAW

becomes the measure of things. The objective basis of natural

law, the ordo rerum and the eternal law, has vanished. What was
termed natural law is a series of conclusions drawn from the cate­
gorical imperative and from the regulative ideas of practical rea­
son, not from the objective and constitutive ordo rerum. These
regulative ideas received their somewhat dubious validity from
the feeling that without their validity human moral life would
be impossible. The ensuing materialism, however, proved only
too quickly that this argument lacks force, and that man can
live, at least when human nature becomes a purely biological
entity, without such regulative ideas. What a fall of the angels!
At the beginning of the development lay Descartes’ “ angelism” ;
at the end emerged materialist naturalism: man the angel be­
came man the higher animal. From a being whose reason is the
supreme source of morality man became a powerless agent gov­
erned by the conditions of economic production.

John Locke (1632-1704) was as individualist in his social phi­

losophy as was Hobbes, though he rejected Hobbes’ glorification
of the state as the “ Mortall God” and denied that the Leviathan
is the exclusive source of law. Although Locke, in opposition to
Hobbes and Spinoza, depicts the state of nature as idyllic, as a
condition of peace, good will and mutual help, he contends that
the state, or rather government, is in practice indispensable. For
Hobbes the function of the status naturalis and of the idea of
natural law is merely to furnish a basis for the institution of the
status civilis and the positive law, whereupon the natural law
disappears. For Locke, on the other hand, the function of the
state of nature and of the idea of natural law is to establish as
inalienable the rights of the individual. But these rights by no
means vanish in the status civilis; indeed, the true purpose of the
latter is the more perfect preservation and development of such
 T H E AGE OF INDIVIDUALISM AND RATIO NALISM 89

rights. Thus these innate and indefeasible rights of individuals

afford an ultimate criterion for judging all acts of the govern­
ment and all laws of the state. The rights to life, liberty, and
estate or property make the law; the law does not create them.
Locke’s philosophy of law does not view the law as an objec­
tive order of norms out of which individual rights flow by in­
trinsic necessity; the rights of the individual are prior, and in
them originates whatever order exists. Order is consequently the
product of contracts between individuals, who are induced by
their rather selfish interests to enter into these contractual rela­
tions. The status civilis is thus not the objective result of man’s
social nature itself: it is not a realization, through man’s moral
actions, of the natural order in the universe. The state is the
utilitarian product of individual self-interest, cloaked in the
solemn and venerable language of the traditional philosophy of
natural law. Locke substitutes for the traditional idea of the
natural law as an order of human affairs, as a moral reflex of the
metaphysical order of the universe revealed to human reason in
the creation as God’s will, the conception of natural law as a
rather nominalistic symbol for a catalogue or bundle of individ­
ual rights that stem from individual self-interest. Any order of
law is accordingly the product of the contractual will of the indi­
viduals concerned, and it has for its object the protection and
promotion of individual self-interest. The characteristic note of
individualism (the preponderance of commutative justice and
of self-interest over distributive and legal justice and the com­
mon good) is obvious in Locke’s thinking.
The hidden root of this position is, of course, an overcon­
fidence, born of optimism, in the typically individualist pre­
sumption that the common good is nothing real, that it is merely
the sum of the particular goods or interests of individuals. If
this is true, the free pursuit of self-interest on the part of indi-
So T H E N A T U R A L LAW

viduals who are restricted only by the like freedom of others

must work like the “ invisible hand” of Adam Smith and pro­
duce, as it were automatically, a sort of social harmony.
The concept of natural law had thus degenerated from an
objective metaphysical idea into a political theory which sought
to justify and promote definite political changes. But the useless­
ness of such a degenerate concept, once these political changes
had been effected and consolidated, is evident. The idea of nat­
ural law, once the eternal objective norm of all social life, served
Hobbes as a means of establishing the absolute rule of the state
as the “ Mortall God.” It served Locke as a means of vindicating
the “ Glorious Revolution” of 1688-89 and of laying the juridical
foundations of bourgeois society. It served rationalism as a means
of promoting the codifications of law at the hands of princely ab­
solutism, which was the destroyer of feudalism and medieval con­
stitutionalism, and hence as a means of strengthening the bases
of bourgeois society.
But Locke’s empiricism in epistemology undermined the
philosophical bases of the natural law at least as much as this
political theory endangered its very idea. Thus Locke prepared
the way for the destructive criticism of Hume and Bentham.
Basically a skeptic in metaphysics, Locke could not attain to cer­
tainty in moral philosophy, a prolongation of metaphysics. His
moral philosophy, had he ever worked it out, would have ended
in a barren utilitarianism of the Benthamite type. But Locke,
quite unaware of the implications of epistemological empiricism
and oblivious of the consequences of his skepticism concerning
metaphysics as the basis of any valid theory of natural law, con­
tented himself with a belief in natural law as a dictate of com­
mon sense. His feeling for political realities, as well as the fact
that the English common law retained many of the traditional
concepts of the natural law, prevented him from drawing the con­
clusions to which Hume’s acid criticism would later lead. In
 T H E AG E OF INDIVIDUALISM AND RATIO NALISM 91

Locke, therefore, we have an excellent example of the revenge

which common sense so frequently takes upon empiricists and
philosophical skeptics. Locke allowed his common sense to affirm
in practice what his philosophy implicitly denied. In this he was
like Karl Marx, the most typical instance of such behavior. Marx
was wholly intent upon destroying, as a merely instrumental
ideology, the ideas of justice and truth. Yet at the same time he
thundered like an Old Testament prophet against the injustices
and deceits of bourgeois society and philosophy. He thereby im­
plicitly affirmed justice and truth as objective and transcendent,
and not as merely relative to and immanent in the conditions of
socio-economic production.

The doctrine of Jean Jacques Rousseau (1712-78) stands al­

most diametrically opposed to Hobbes and his conception of the
natural law. Hobbes’ theory glorifying absolutism had aroused a
strong reaction. Although this reaction, led by such thinkers as
Locke, Montesquieu, and Hume, did not go so far as democracy,
it was transforming the freedom of subjects in the unlimited
monarchy into constitutionally guaranteed natural rights (power
checks power and creates the condition of freedom). This line of
thought attained its harshest expression in Rousseau.
Whereas for Hobbes the state of nature was a “ warre of every
man against every man,” the Geneva dreamer preached a state
of nature that resembled the biblical Paradise. For Hobbes the
state, the legal order, and consequently goodness, are, in the
interest of mere order, the goal of an historical philosophical
movement that wishes to be rid of nature, of the status naturalis,
and to attain to the status civilis in which the ruinous liberty of
human wolves comes to an end. For Rousseau, on the contrary,
the status civilis and the objective, enforced order of unfreedom
in the state constitute precisely the condition of corrupt human
nature, whereas the state of nature is, taking an optimistic view
9s T H E N A T U R A L LAW

of man’s nature, exactly what it ought to be. “ Back to nature”

was, in Rousseau’s teaching, something more than a game played
by a bored and snobbish nobility. Civilization, in the literal sense
of becoming a civis (citizen), only then does not spell ruin when
the original, natural rights of liberty and equality form the es­
sential reservations of the social contract. Men do not have to
enter into the social contract. They enter into it freely; they are
driven by no mysterious impulse out of the war of all against all
into the enforced peace of absolutism. But they can enter into
it because it is their will, the will of everyone in the general will
that now comes into being.
At bottom, for Rousseau the historical status civilis is the
world after man’s fall, whereas the status naturalis was the garden
of Eden. Consequently, the state as such, as ordo rerum hu-
manarum, is not a necessary, ethical institution; it is but the
minister of human rights. It is for this reason that the right of
revolution exists, if natural rights are violated by the positive
law. Rousseau’s fanatical passion for liberty, virtue, and right
lived on in the men responsible for the Reign of Terror of 1 793—
94, in men like Robespierre. The highly emotional way Rousseau
treated of liberty and man’s unalterable rights accomplished more
in this respect than the specific doctrinal passages of his books.
Besides, he had less influence upon the thought of the age of
natural law, upon the countless treatises of ius naturae et gentium,
than upon the publicists and political writers of the time.

The era of natural law as a homogeneous epoch in the history

of ideas was determined far more by the jurists and philosophers
and their systems than by Rousseau’s emotional philosophizings
that were becoming the daily reading matter of the educated
classes. Therefore the historical school of law directed its attacks
chiefly against the former, whereas the conservative school and
the writers inspired by the romantic movement (e.g., Burke, De
 THE AGE OF INDIVIDUALISM AND RATIO NALISM 93
Maistre, De Bonald, Goerres, Arndt) were more concerned with
refuting Rousseau.
This period, celebrated in the history of ideas and of science
as par excellence the age of natural law, is chiefly associated with
the names of Pufendorf, Thomasius, and Kant. Side by side with
these, however, innumerable scholars of lesser renown were ac­
tive in the professorial chairs established at that time for the ius
naturae et gentium. They were filling the libraries of educated
people, government officials, and judges with numberless sys­
tematic but conflicting expositions of natural law. With few ex­
ceptions (e.g., Wolff, Zallinger, Schwarz) these men claimed that
they were the first to discover the natural law or to free it from
the fancies and verbiage of the Scholastics. It was precisely this
break with tradition that was responsible for the confounding of
this doctrine of natural law with the perennial idea of the nat­
ural law. So it was, then, that the nineteenth century could be­
lieve that, with the refutation of this doctrine, the natural law
itself had been proved a chimera. This was an extremely fateful
fact in the history of the philosophy of law as well as in the history
of philosophy in general. Or was it not fateful that Pufendorf was
well acquainted with scarcely a single Greek or Scholastic, and
that Kant, the watershed from which flow so many and such
varied streams of modern thought, knew Aristotle and St. Thomas
only from a very imperfect history of philosophy?
The decisive differences between this newer natural law and
that of the Scholastics are three in number. The first is the indi­
vidualistic trait manifesting itself in the predominance of the
doctrine of the state of nature as the proper place in which to
find the natural law. The second is the nominalist attitude which
found expression in the separation of eternal law and natural
moral law, of God’s essence and existence, of morality and law.
The third is the resultant doctrine of the autonomy of human rea­
son which, in conjunction with the rationalism of this school, led
94 T H E N A T U R A L LA W

straight to an extravagance of syllogistic reasoning, of deductively

constructed systems that served to regulate all legal institutions
down to the minutest detail: the civil law governing debts, prop­
erty, the family, and inheritances as well as constitutional and
international law. And, in contrast with the imperfect historical
law, these legal systems possessed the inestimable merit and value
of emanating from the pure rational nature of man.
These differences especially characterized the leading figures
of the new school of natural law, Pufendorf and Thomasius. The
latter was particularly concerned with separating morality and
law. He thereby stands out in the history of philosophy as a pre­
cursor of Kant.

Samuel von Pufendorf (1632-94), in his concept of man’s

nature, did not take man in his teleologically determined to­
tality of human nature. Man is not essentially social, so that, as
earlier thinkers had held, the essential forms of community liv­
ing evolve by inherent necessity out of his natural tendency for
society. On the contrary, he should develop sociality because it
is of advantage to him. Man is an animal sociabile, not sociale.
What had for earlier thinkers been but a sign of man’s internal
and natural tendency, a realization of his nature itself in time,
became in the newer natural law mere capability, mere impulse.
Accordingly, empirical nature and any impulse or capacity what­
ever (sociality or, as in the case of Thomasius, felicity) formed
the starting point of speculation. The presupposition of such
natural-law thinking is the individual as an isolated being in the
state of nature, hence abstracting from the essential forms of
human nature as such that find expression in the historical forms
of state, law, marriage, and family. Wherefore Pufendorf pro­
ceeded to set forth how man in the original state of nature, ab­
stracting from the historical status civilis, from positive law and
 T H E AG E OF INDIVIDUALISM AND RATIO NALISM 95

from the legal order, has as an individual to behave toward God,

toward himself, and toward his fellow men.
Pufendorf first draws up a list of duties toward God, i.e., prin­
ciples of natural religion, and then, in a most exhaustive fashion,
a catalogue of duties toward oneself and toward others. Such
duties toward others are, for instance, that everyone must keep
his word, must not swear falsely, must be sincere in speech. He
shows what norms for the acquisition and use of property, for
marriage, the family, and inheritance, can and must be deduced
from reason alone. He describes the procedural law in the state
of nature, and he indicates the norms of distraint which must
find application in that state. Thus in reality the entire positive
law, so far as it has to do with the civil law and its procedure in
lawsuits, is straightway transformed into natural law. It logically
becomes suprahistorical or prehistorical (in Pufendorf’s case)
and in itself unalterable. But the status civilis is a superadded
status with laws that in final analysis are only formal.
Because of its revolutionary possibilities, however, the basi­
cally critical attitude shifted at once to a conservative one: the
existing law is in itself good, and is merely in need of reform. The
law of the state of nature is an ideal law, a model law; it is not a
law that is actually in force. This follows from the determination
of the relationship between positive law and natural law. The
former is needed on account of the sinful propensities of men,
who cannot adequately be kept in order through mere knowledge
of the natural law and solely out of reverence for it. Hence the
public authorities enact positive laws in order that the natural
law may be observed. As soon, then, as the state is founded as
status adventicius in virtue of the original contract, and as soon
as a sovereign authority is set up by means of the governmental
contract, man must comply with the positive laws by reason of
the fundamental principle of natural law, “ agreements must be
9< T H E N A T U R A L LAW

kept.” The distinction between the prescriptions which pertain

to the prohibitive and directly binding natural law and the
further norms of the hypothetical natural law (the ius naturale
permissivum of the older writers) made it possible for Pufendorf
to explain all positive laws as hypothetical natural law. In this
way the whole body of concrete civil laws (the laws concerning
debt, property, the family, and inheritance, in particular the
modes of acquiring ownership, conveyance by will and succes­
sion, the monetary system and contracts involving monetary con­
siderations), i.e., the entire contents of those positive laws which
were viewed as necessary, became natural law. The preceding
age, on the other hand, had conceded to only a few basic norms
(Decalogue) the dignity and grandeur of natural law.
Pufendorf’s theory of international law throws light on his
doctrine of natural law. Princes and states live in the status na­
turalise since no status adventicius, no civitas maxima, as yet exists.
Hence international law consists merely of natural law. There
is no positive international law because there is no sovereign au­
thority. Measured by the contributions of Grotius and the Late
Scholastics, this view marks a great stride backward along the
path which Hobbes had already taken.
Those of his contemporaries who had not succumbed to the
rationalist temper of the period charged Pufendorf with being
“ not much of a jurist, and a philosopher not at all” (Leibnitz)
and with having totally abandoned tradition.7 As a matter of
fact, Pufendorf had never understood the traditional view that
moral philosophy with its partial content, the ius naturale, is a
continuation of metaphysics, the science of being, which, when
applied to the free will of rational man, becomes the science of
oughtness. But his unrestrained and unhistorical rationalism
t Cf. A.-H. Chroust, “ Hugo Grotius and the Scholastic Natural Law Tradition,” The
New Scholasticism, X V II (1943), 122-25.
 T H E AGE OF INDIVIDUALISM AND RATIO NALISM 97

arises precisely from this fact. The doctrine of the eternal law
he had never grasped. It is true that he encumbers his writings
with formulas culled from his readings. Yet they have there a
different meaning, because they are torn from their proper in­
tellectual setting. The ius naturale, therefore, is not related to
God’s essence as a participation of the eternal law. It is rather, in
typically nominalist fashion, placed in God’s will. It has to do
with the external order of sociability as an actual fact. It is in
force because God has so willed to create man; it was not in force,
it did not exist, when man did not as yet exist. It is thus not a
participation in the divine law, eternally present in God’s essence.
It is “ eternal” only so far as it is of the same age as man; hence
it has only been in force since man has been in existence, since
God created him. This position is diametrically opposed to the
view of Arriaga and Grotius, that the natural law would still
possess some validity even if there were no God.
This position, however, formed the basis of extreme rational­
ism. For henceforth not God’s essence, but human nature, viewed
existentially as well as merely in the abstract, would be regarded
as the source of natural law. Thence also originated the abstruse
intellectual sport of a logically deduced law for man in the state
of nature, as well as the widespread unhistorical attitude and the
inability to comprehend Aristotle’s everlastingly true proposi­
tion, that outside the state (not society) man is either a beast or
a god. For this line of thinkers the idea of law does not live in the
historical legal systems, nor was the eternally valid natural moral
law recognized as the essential norm from its exemplification in
the legal forms. Rather, the natural law was derived from a purely
imaginary state of nature, or from a state of nature that was sup­
posed to have once existed (theoretically and without regard for
concrete historical exemplifications). In practice, indeed, the im­
provements and reforms of the historical positive legislation that
9? T H E N A T U R A L LAW

were deemed good, useful, and necessary assumed the guise of

natural law. That explains the significant politico-legal function
of this brand of natural-law philosophy of the Enlightenment.

At the hands of Christian Thomasius (1655-1728) the sociality

of Pufendorf received a utilitarian interpretation. The aim of
ethics is mastery of the passions, because these endanger the tem­
poral happiness, i.e., the peaceful existence, of the individual.
The supreme, central principle is therefore this: “ Whatever
renders the life of men long and happy is to be done, but what­
ever makes life unhappy and hastens death is to be avoided.” It
is no longer sociality or an appetitus socialis that is the source of
natural law, but rather, after the manner typical of the En­
lightenment, it is the happiness of the individual. Instead, the
forms of community life appear as mere status adventicii, not as
essential perfections of man. Happiness consists in a pleasant,
carefree life; and evidently it is attainable only through a virtu­
ous, respectable, and just life. A man should live virtuously in
order to preserve inner peace; respectably, in order that others
may come to his assistance; justly, lest others be provoked and
external peace be disturbed. Law is therefore something external
and is unrelated to the honestum, to the morally good. It pro­
duces only external obligations, whereas morality produces only
internal ones. Legal duties are enforceable duties; moral duties
are subject to compulsion solely through one’s own conscience.
This conception reacted unfavorably upon the doctrine of the
state of nature. The latter was interpreted in a pessimistic sense:
legal force can be exerted only by means of self-help and self-
defense. Hence the state arose by way of contract, merely out of
considerations of individual utility. An external power is a more
effective guarantor of external peace than is the individual’s right
of self-help. Thus the absurdities mount.
The grandiose pessimism of a Hobbes possesses, by compari-
 T H E AGE OF INDIVIDUALISM AND RATIO NALISM 99

son, a consistency that is refreshing. Besides, Thomasius also drags

in the old formulas, such as that of God as the ultimate founda­
tion of the natural law. For him, however, this merely means that
even the natural law owes its existence to God as the Creator of
all things. But the ground of its validity is not God’s will, since
in particular cases we know what God’s will is through revelation
alone, not by means of natural reason. The principle of the nat­
ural law thus remains temporal happiness understood in a highly
subjective sense.
The metaphysics of the natural law was by now altogether
lost to sight. Deductive, autonomous reason could henceforth,
without let or hindrance, evolve natural and detailed systems of
law. Into such legal systems were admitted, of course, as unalter­
able and supreme postulates all those parts of the positive law
which the individualistic spirit of the Enlightenment regarded as
good, as well as whatever it considered worthy of enactment into
law.
In the course of this evolution the individualistic trait grew
steadily more pronounced. Pufendorf had already conceived of
sociality, not as a category bound up with the nature of man, but
as a capacity, a mere potency, a tendency. Marriage, the family,
property, and the state are not institutions, derived from natural-
law social forms, germinally present in the idea of social animal
and proceeding of necessity therefrom (and hence in their essence
independent of the will). They were viewed from the standpoint
either of the advantage accruing to the individual or of their
utility for a happy temporal life taken subjectively. As a con­
sequence, too, it was not the family but marriage “ relations” and
the relations between parents and children, viewed as relations
between individual and individual, that received attention. Such
an approach was, of course, incapable of appreciating the posi­
tion that the institution alone, considered in its essence, possesses
natural-law character, whereas the juridical regulation of indi-
100 T H E N A T U R A L LAW

vidual relations can be discovered in various ways from the evolu­

tion of society, and the positive law in turn from the whole
complex environment; as in the case of paternal authority, forms
of ownership, property rights in marriage.

Immanuel Kant (1724-1804) exhibits in his philosophy the

individualist natural law in its final, highest form. Among Ger­
man natural-law thinkers he was the most radical in making free­
dom of the individual the starting point of his system. Liberty
or autonomy is the sole right that belongs originally to every man
in virtue of his humanity. Man’s innate equality and the entire
list of the other primal rights are comprised in it. As the supreme
law of right, emerges the formula: “ Act externally in such a man­
ner that the free exercise of thy Will may be able to co-exist with
the Freedom of all others, according to a universal Law.” 8
This is likewise the basis of Kant’s allegedly great achieve­
ment: the separation of ethics and law, of morality and legality.
That law essentially concerns the external order was, however,
a tradition of long standing. Equally ancient was the correspond­
ing view that legal duties are, without any self-contradiction, en­
forceable by physical means, in contrast to such duties as love,
gratitude, and reverence (love of country, for instance, is unen­
forceable, whereas obedience to the laws of the state can indeed
be enforced). But both classes had always been conceived as moral
duties. Up to that time there were no merely juridical duties, even
though there existed merely ethical duties, e.g., gratitude. Yet no
one recognized any mutually exclusive opposition between ethical
duties and juridical duties, although people knew how to dis­
tinguish them. Juridical duties are enforceable, and they are en-
8 Immanuel Kant, The Philosophy of Law. An Exposition of the Fundamental Prin­
ciples of Jurisprudence as the Science of Right, Introduction, C, trans. by W. Hastie
(Edinburgh: T . & T . Clark, 1887), p. 46. Kant further lays down (p. 45): “ Every Action
is right which in itself, or in the maxim on which it proceeds, is such that it can co-exist
along with the Freedom of the Will of each and all in action, according to a universal
Law.”
 T H E AGE OF INDIVIDUALISM AND RATIO NALISM 101

forceable because without such enforcement there can be no

durability to the social order, through which and in which the
idea of man as a social animal finds completion. Permanence is a
special attribute of law. Violation of the law is a negation of this
order. But precisely because this order must exist, the fulfill­
ment of legal duties is likewise always a moral duty. Consequently
the state is not a pure apparatus for compulsion; it is always a
moral community, too. Moreover, it does not live by law alone,
though it lives in the law; it lives rather by the exercise of all the
social virtues. Accordingly thinkers had in the past always as­
signed to the state as its essential task, to render the citizens virtu­
ous.
Despite such accurate discrimination (precisely for the sake of
morality as free fulfillment of duty), this inner connection was
first torn asunder by Thomasius in the separation of ethics (equiv­
alent to inner peace of the individual soul) and law (equivalent
to external peace of society). Kant, on the other hand, replaced
inner peace by autonomous freedom. Inner freedom, the moral
autonomy of the individual person, is the sphere of morality. “ A
person is subject to no other laws than those which he (either
alone or jointly with others) gives to himself.” 9 External free­
dom, according to Kant, requires coercive laws; on this point he
found himself in full agreement with tradition. Therefore, Kant
infers, the condition of external freedom (i.e., law) is something
purely external. Morality and law differ not so much by reason
of the diversity of duties (e.g., justice, love of neighbor, filial and
parental love) as because of the disparity of legislation. The mo­
tive of moral legislation is duty, derived from the autonomy of rea­
son and appearing in the form of the categorical imperative and
practically deified by Kant. The motive of juridical legislation is
not morality but the keeping of external freedom, the carrying
9 Immanuel Kant, Introduction to the Metaphysic of Morals, IV, 24, trans. by T . K.
Abbott, Kant’s Critique of Practical Reason and Other Works on the Theory of Ethics
(Gth ed., London-New York: Longmans, Green and Co., 1927), p. 279.
ios T H E N A T U R A L LAW

out of the coercive measures that are necessary thereto. The legal
order is devoid of moral character. “ Hence ethical legislation can­
not be external (not even that of a divine will).” 10 Thus
the impersonal, formal, categorical imperative takes the place
of the eternal law. The natural law, therefore, as part of
the lex naturalis, is no longer connected with the eternal law, for
the very reason that it can no longer be understood as part of the
lex n a tu ra lisof the rational moral law. Furthermore, not en­
forceability but external physical force is directly and necessarily
included in the concept of law.
Freedom as a starting point and first principle of the natural
law in its purely formal character renders impossible a material
natural law, a natural law with a material content. This follows
also from Kant’s pronounced dualism of speculative and prac­
tical metaphysics, the coordinated knowledge contents of the­
oretical and practical reason. Theoretical reason affords no sure
knowledge of the essence of things; it can posit the existence of
external reality only as a postulate. Practical reason alone yields
certitude about the metaphysical. Practical reason “ believes” in
God, freedom, and immortality, things which theoretical reason
is unable strictly and necessarily to know and demonstrate from
the world of phenomena; for without them morality would be
impossible. This primacy of the practical reason parallels to some
extent the nominalist contention that the will is a higher faculty
than the intellect and that supernatural faith as well as the posi­
tive divine law is the positive rule of knowledge and action. As in
the case of the nominalist Occam, on this primacy of practical
reason rests Kant’s ethical rationalism, his deductionism uncon­
trolled by the intellect and consequently by reality. For other­
wise the intellect would have to perceive the ideas in things and
to be able to present that which is to the will as that which strictly
ought to be.
10 Ibid., I ll, 19, trans. by T . R. Abbott, op. cit., p. 275.
 T H E AGE OF INDIVIDUALISM AND RATIO NALISM 103

Kant’s formalism, i.e., the theory of mere conditions of knowl­

edge and of moral autonomous freedom, is the main cause of this
peculiarity of his ethics. It did not allow him to develop a doc­
trine of material values, but only the doctrine of conditions under
which values can be “ given.” The principle of freedom is too
formal and hence too unfruitful to permit a material ordo,
whether of oughtness or of essential being, to find acceptance, in
relation either to knowledge or to volition. Since metaphysical
being can thus exercise no control with regard to thinking, de­
ductive free thought loses itself in rationalist constructions. Only
too frequently, moreover, it clothes empirical, historical con­
tents with the sheen of pure and absolutely valid deductions
from reason. Indeed, this can be verified even in the case of the
Neo-Kantian theories of formal and pure law, as, for example, in
the writings of Stammler and Kelsen. (However paradoxical it
may appear, Karl Bergbohm would actually have uncovered, in
virtue of his peculiarly keen scent, abundant traces of natural-law
thinking even in Kelsen.) Hence every external mode of action
whereby the arbitrary freedom of the citizens is not mutually im­
paired would have to appear as juridical. That is to say, the joint
consent and approval of the citizens would necessarily be able to
render, in a positivist fashion, any action whatever a juridical one,
quite apart from its material moral quality (here the well-known
strong influence of Rousseau upon Kant is discernible). Thus,
on the sole condition of the formal freedom of others, it would
be possible for such intrinsically immoral actions as usury, theft,
and adultery to become juridical, which Occam, who taught the
same dualism of theoretical and practical reason, had admitted
even in the case of the lex naturalis. The inherently immoral char­
acter of an action is no longer of importance for its juridical quali­
fication.
This formalism thereupon led to abstruse deductions that al­
together disregard the social value of, for instance, marriage and
104 T H E N A T U R A L LAW

the family as institutions. T o Kant the entire world of law ap­

peared exactly like a variegated, intrinsically uncoordinated
aggregate of subjective rights. Marriage becomes for him “ the
Union of two Persons of different sex for life-long reciprocal pos­
session of their sexual faculties.” 11 The use of another’s sexual
organs is, in Kant’s view, a gratification for the sake of which one
party gives himself to the other. But thereby a man makes him­
self a thing, which is contrary to the law of the humanity in his
person. Only because the other person similarly acquires another
as a thing does he regain himself and recover his personality. “ The
Acquisition of a part of the human organism being, on account
of its unity, at the same time the acquisition of the whole Per­
son, it follows that the surrender and acceptation of, or by, one
sex in relation to the other, is not only permissible under the
condition of Marriage, but is further only really possible under
that condition.” 12 The act of generation is “ a process by which a
Person is brought without his consent into the world, and placed
in it by the responsible free will of others. This Act, therefore,
attaches an obligation to the Parents to make their Children—
as far as their power goes— contented with the condition thus ac­
quired. Hence Parents cannot regard their Child as, in a man­
ner, a Thing of their own making, for a Being endowed with
Freedom cannot be so regarded. Nor, consequently, have they a
Right to destroy it as if it were their own property, or even to
leave it to chance, because they have brought a Being into the
world who becomes in fact a Citizen of the world, and they have
placed that Being in a state which they cannot be left to treat with
indifference, even according to the natural conceptions of
Right.” 18
In Kant’s thought also the state of nature, which is contrasted
not with the social but with the civil or political condition of
11 The Philosophy of Law, Part I, no. 24 (ed. W. Hastie, p. 110).
12 Ibid,., no. 25 (p. 111).
is Ibid., no. 28 (pp. 114 f.).
 T H E AGE OF INDIVIDUALISM AND RATIO NALISM 105

mankind, plays the same great role that it did in the individualist
conception of natural law. Kant held that the state of nature is
already social, and that the norms of natural law have force in it
as private law. Accordingly the whole body of law derivable from
reason (the law covering marriage, the family, inheritance, con­
tracts, property and the ways of acquiring it, as well as trial and
verdict) is dealt with in this connection. The status civilis is
looked upon as something superadded, not as equally original.
It is the domain of public law, in which “ through public laws the
‘mine’ and ‘thine’ [is] safeguarded,” hence not created. It has the
important function of presenting these norms of private law,
which are projected upon or into the state of nature conceived
as social, as sacred to the public or positive coercive law of the
state. The rights and institutions existing in the state of nature
are at most to be protected by the state with its force; they are not
to be substantially altered or to be abolished. For what did not
previously belong to the law of nature cannot become matter of
civil law.14 The circle of subjective rights, which is continually
widening, and the maintenance of these rights in the status
civilis form together the contents of the natural law. They are
projected into the state of nature in order to protect them from
encroachment on the part of the state. In this way the state itself
is merely an institution resting on a free contract: it does not re­
sult intrinsically and necessarily from the essence and reason of
man. At most it arises from eudaemonist and utilitarian motives,
so far as the passions, which were generally viewed by rationalism
after the Stoic fashion as devoid of value, menace the state of
nature in its very existence and hence render coercion necessary.

The era of the individualist natural law, conditioned by the

theory of a purely imaginary, unreal world of the state of nature
and adopting as a starting point any propensity or attribute what-
14 Cf. ibid,., nos. 41 and 44 (pp. 155-57, 163-65).
106 T H E N A T U R A L LAW

ever of empirical human nature, brought to light nearly as many

supreme principles of law and resultant natural-law systems as
there were chairs and professors of natural and international
law. Such were sociality, external peace, urge for earthly hap­
piness, and, finally, freedom. As Warnkoenig has shown, eight
or more new systems of natural law made their appearance at
every Leipzig booksellers’ fair since 1780. Thus Jean Paul Rich­
ter’s ironical remark contained no exaggeration: Every fair and
every war brings forth a new natural law.
The reforming zeal of the eighteenth century considered use­
ful, right, and good its ideal of civil liberty and equality, eco­
nomic freedom as a condition of social harmony, and liberation
from the rigid bonds of guild law and corporations. All this
was taken, together with and in addition to the traditional con­
tents, into the natural law and transferred to the state of nature.
Thus the particular systems of natural law became compendiums
in which the norms of the positive law (only now rationally
demonstrated), vindicated by speculative thought and before the
bar of reason, appeared side by side with proposals for improve­
ment arising from the criticism of the positive laws. Moreover,
in these systems the natural-law norms handed down from the
past were dealt with alongside both the ideas of political reform
stemming from the spirit of the time and the subjective rights
of citizens and men. With these last were combined, with more
or less good fortune or skill, the personal and often abstruse
desiderata of the individual teacher.
For these reasons Anselm Desing, O.S.B. (1699-1772), who
as a Catholic, in contrast to the majority of natural-law teachers,
was still in close contact with the Scholastic tradition, could
rightly point out that the pretended natural law of his time was
in no way a “ dictate of reason” ; that it was rather a rationaliza­
tion of the positive law of the period, yes, even of the laws of the
nation to which the author belonged; hence that it was not at all
 T H E AG E OF INDIVIDUALISM AND RATIO NALISM 107

derived, as asserted, from reason alone, but was little more than
“ the civil law adorned with some spoils of philosophy and moral
theology.” How are we otherwise to explain the fact that, side by
side with the natural right to liberty and equality, a natural law
of feudalism was taught; and that, alongside the new French
constitution, the constitution of the Holy Roman Empire was
shown to belong to the natural law? Or that the postal system was
converted into a natural-law institution? Nature, state of nature,
natural reason, natural theology, and natural ethics were the
dominant ideas and viewpoints of the age. Whoever was desirous
of representing something as good and worth while had now to
make of it a requirement of the natural law, and to show that it
is a conclusion of reason and that it existed in the state of nature.
This individualist natural law of rationalism did not, how­
ever, owe its importance in world history to its absurdities. It
owed this significance rather to its ethical and politico-economic
aims, which were raised to the sublime dignity of natural justice
and held in altogether singular esteem by the spirit of the eight­
eenth century. Through its acid criticism of society, it certainly
served to dissolve the traditional and rigid forms of feudal and
guild law in the reforming legislation of enlightened despots
like Frederick the Great of Prussia and Joseph II of Austria. This
causal connection is verified in the authors of these reforms,
who lived and taught wholly under the spell of this natural law.
Nor did it only smash these forms to pieces in a revolutionary
manner, as the Jacobins inspired by Rousseau did in France. It
also preserved from ultimate extinction a goodly part of the old
national legal heritage by investing much of the latter with the
splendor of natural justice. For example, Thomasius rejected
the free testamentary disposition of Roman law and opposed to
it, as a requirement of natural law, the Germanic system of suc­
cession according to blood. Moreover, in conjunction with the
Enlightenment, it again did away with the belief in demons,
10F T H E N A T U R A L LA W

which since the close of the Middle Ages had been working havoc
in the sphere of law (witchcraft delusion); and it thus deprived
torture of all justification arising from belief in demons, from the
supposed “ possession” of the criminal. Finally it upheld, in Ger­
many by means of reform, in France through revolution, human
and civil rights against a personal absolutism of princes that
towered above everything; in this way it once more helped the
idea of the constitutional state on to victory. Yet we should not
overlook that it likewise vindicated to the point of chicanery the
police-state of enlightened despotism along with its tutelage of
the citizens.
On the other hand, the separation of morality and law, and the
assignment of law alone to the state and of morality to the indi­
vidual, aided materially in the suppression of the police-state.
The state, it was held, is not to concern itself with the morality
of the citizens, which is an internal matter. Among the conse­
quences of this view in the moralizing century was not only the
victory of civil toleration in matters of religious belief, but also
the victory of the liberal constitutional state over the totalitarian
educational state, whereof Maria Theresa’s morals commissions
still afforded evidence. For, supposing that the Church as a free
community pre-eminently concerned with faith and morals is
lacking or is not recognized, the identification of morality and
law leads readily to a state which no longer respects a sphere of
personal moral responsibility or a personal nature and goal which
transcend the state.
We can, therefore, readily understand that the rationalist nat­
ural law should have lost ever more and more of its importance
as its aims were progressively achieved in political life and in posi­
tive law. Yet it is a singular thing, and a sort of poetic vengeance
for its own betrayal of tradition, that throughout the entire nine­
teenth century this natural law passed in the scientific world for
the natural law par excellence, and that thus the battle against it
 T H E AGE OF INDIVIDUALISM AND RATIO NALISM 109

was regarded as a fight against the natural law. Thus positivism,

which was now beginning its triumphal march, obtained its
laurels all too easily, since it was indeed able to vanquish this his­
torical form of a philosophy of law which called itself natural law,
but not the idea itself of natural law. The latter was carried along
by the philosophia perennis even through the centuries flushed
with passion for deduction. It sought for fresh confirmation in
every historical setting of the problem until, with the exhaustion
of positivism, with the resurgence of metaphysics, and with the
collapse of the spirit of the nineteenth century, it came back
renovated. It returned, not of course absolutely speaking, for it
had always been cherished in the shadow of moral theology and
the metaphysics of the philosophia perennis, yet return it did
even into the realm of jurisprudence, from which positivism had
attempted to banish it.
 CHAPTER V

The Turning away from N atural Law

T he attack upon the idea of natural law came mainly from two
quarters. It came, in the first place, from skeptics and agnostics
like David Hume or from utilitarians like Jeremy Bentham
(1748-1832) and their disciples. In the next place, it came from
the leaders of the romantic movement, which was antirationalist
and antirevolutionary and was based upon the philosophy of
traditionalism as expounded by De Maistre and De Bonald.
Common to both groups, however, though for very different
reasons, was a pronounced distrust of the power and abilities of
human reason in individual men. This distrust resulted from a
strong reaction against the overestimation of that same human
reason in the era of rationalism. For both groups, law is not a sys­
tem of clear rational conclusions from some axiomatic or self-
evident principles. It is not a body of deductions which human
reason can construct more geometrico, as Baruch Spinoza, in
keeping with the predilection for the mathematical method which
dominated the rationalist era, attempted to work out in his Ethics.
On the contrary, law becomes the effect of habits, the product of
the experienced utility of conventional behavior for individualist
self-interest. Hume never tires of pointing out that reason is and
ought to be the servant of the passions, and that consequently
man is ruled by the passions and not, as the rationalist must con­
tend, by reason. Similarly the romantic movement (in legal phi­
losophy, the historical school of jurisprudence) would insist that
law is merely the creation of the Volksgeist or spirit of the people
which works in an irrational manner and reveals itself in the
HO
 T H E T U R N IN G AW AY FROM N A T U R A L LA W 111

establishment of legal conventions and customary law. Law it­

self is constituted by such time-honored customary laws, which
emerge from the mysterious soul of the nation that grows like
an organism and is not deliberately fashioned. It is not the legis­
lator of rationalism, deliberating in the rational clarity of con­
sciousness, who makes the law; and it is not the will of the state,
informed by abstract logical reasoning and vesting the natural
law with the cloak of positive law, that makes the law. The law is
the silent, almost subconscious, historical product of a particular
Volksgeist, of the spirit of a particular people. The law is not
made; it grows.
Both ways of thinking result in the rejection of the theory of
natural law. Yet there exists between them a significant differ­
ence. The skeptics, agnostics, and utilitarians sought definitely
and completely to undermine and destroy the very idea of nat­
ural law. The historical school of law, on the other hand, launched
its attack rather against the antihistorical, abstract thinking of
the age of rationalism. It leveled its guns against that passion for
constructing systems out of the whole cloth of abstract reasoning
which was so typical of the natural-law theorizing of the seven­
teenth and eighteenth centuries and was at the same time so de­
structive, as appears in the excesses of the French Revolution,
which appealed to the idea of natural law in justification even of
its most wanton injustices. This school of law was antirevolu­
tionary and antirationalist, but it was not, like the agnostic school
of thought, antimetaphysical.

It has been pointed out that the forces which would destroy
the hold exercised over men’s minds by the idea of natural law
were already germinally contained in John Locke’s empiricism.
Locke began with a certain distrust in the power of human rea­
son that was only slightly neutralized by his philosophically
rather inconsequential confidence in practical common sense.
11 ? T H E N A T U R A L LAW

The point has also been made that Cartesian rationalism, with
its conception of the human intellect as practically angelic, con­
tained within itself a fall of the angels by leading to relativist
sensualism. In the philosophy of David Hume (17 11-7 6 ) these
forces became mature. “ Reason is, and ought only to be the slave
of the passions, and can never pretend to any other office than to
serve and obey them.” 1 Reason fails us, but only in order that
nature herself (reason and nature are now opposed; no longer is
reason the dominating element of human nature) may step into
the breach.2 What, then, is this “ nature” ? It is the passions, the
propensities, and an assorted bundle of perceptions.
Hume’s dissolving criticism leaves no method for determining
what is intrinsically good or bad in these passions and in the acts
that proceed from them. Whatever may be the moral principles
that guide our actions, they are not founded on objective truth
and on reason. Indeed, they are not principles at all. They are
only names, symbols for emotions, i.e., for feelings of pleasure
and pain. What the earlier philosophers called natural law is but
a common name conventionally agreed upon for moral senti­
ments of approval or disapproval. Thus the morality of an ac­
tion is determined not by its conformity with reason but simply
by the sentiment of approval: “ Morality is determined by senti­
ment.” As a consequence, Hume defines “ virtue to be whatever
mental action or quality gives to a spectator the pleasing senti­
ment of approbation; and vice the contrary.” 8 The reason for
such sentiments is not the intellectually apprehended conformity
of the action with objective principles. Such a conformity sup­
poses powers of intellectual cognition which Hume, in his epis­
temology, denies to the human mind. The single remaining
explanation and ground of these sentiments is the usefulness of
1 A Treatise of Human Nature, Bk. II, Part III, § 3, ed. by L. A. Selby-Bigge (Oxford:
Clarendon Press, 1888), p. 415.
2 Cf. ibid., Bk. I, Part IV, § 1, pp. 180-87.
3An Enquiry Concerning the Principles of Morals, Appendix I, i. Hume, Selections,
ed. by Charles W. Hendel. Jr. (New York: Charles Scribner's Sons, 1927), p. 241.
 T H E TU R N IN G AW AY FROM N A T U R A L LAW "3
the action to serve human needs, as repeated experience shows.
The sentiment of approval is a sign that the respective action is
useful, either directly to self-interest, or indirectly, inasmuch as
the action is useful for the preservation of society in its function
as framework for the realization of self-interest, which ultimately
is the sole thing that matters. Out of repeated individual experi­
ences which evidence the utility of an action, arises the presump­
tion of standards of behavior and the fixing of habits.
The moral law is far from being intrinsic and objective; even
the utility of our actions is not an objective quality. It is conse­
quently but a sum of societary conventions that are adapted to
serve human needs and urges according to our experiences, which,
however, may be superseded by different experiences at some
future time. Thus the moral law has no basis in the intelligible
rational and social nature of man; it has to do with no eternal, un­
changeable verity rooted in the metaphysical order of the uni­
verse established by the Creator. Hume rejects the fundamental
conception of St. Thomas that being, truth, and goodness are
intrinsically linked together (ens et verum et bonum convertun-
tur). For Hume, being does not appear to the human intellect
as the true because man’s mind has no access to the thing-in-itself,
to the essences or ideas of things. Similarly, being, which confronts
theoretical reason as the true, cannot appear before practical
reason and the will as the good to be realized, as the objective
norm of human action. Conventions cannot, of course, claim in­
trinsic validity. Utility or usefulness, in addition to its inherently
subjective slant, is a quality which changes with socio-political
circumstances and with accidental and more or less arbitrary esti­
mates of human needs.
All that remained after this analysis was empiricist positivism.
The good and the just are what is here and now deemed useful
to the self-interest of individuals and to their life in common.
The latter, of itself and through educational enforcement, de­
iM T H E N A T U R A L LAW

velops a social habit of considering a common interest, which,

however, is not such in reality: it is but a nominalist symbol for
the sum of tangible individual interests.
This “ destruction” of the idea of natural law at the hands of
Hume 4 was, in the Anglo-Saxon world, of less importance for
the survival of the natural-law concept in jurisprudence than
one might have expected. This fact must be attributed to the
tenacity with which the spirit of the English common law re­
tained the conceptions of natural law and equity which it had
assimilated during the Catholic Middle Ages, thanks especially
to the influence of Henry de Bracton (d. 1268) and Sir John
Fortescue (d. cir. 1476). For a long time natural law remained
the critical norm for common-law judges who, much like the
Roman praetors acting under the influence of the philosophically
minded jurisconsults and their responsa, allowed the principles of
equity to control the rigid formalism of the original common law.
In addition, the decisions of the Christian courts or ecclesiastical
courts, applying canon law which is imbued with the idea of natu­
ral law, constituted a vessel in which this idea could be handed
down to later generations. The English religious revolt of the six­
teenth century brought with it the grave danger that the resulting
caesaropapism might pave the way for a revival on English soil of
Byzantine absolutism. According to Byzantine legal theory the
emperor as lex viva was above and not under the law, a concep­
tion which might be used by the king to establish his supremacy
over the law. But the Christian elements of the common law con­
tinued to keep alive in the minds of the judges the traditional
belief in the supremacy of natural law. Thus Sir Edward Coke
upheld in Bonham’s Case (1610) the general principle that
i George H. Sabine, op. cit., pp. 598-605, gives an enthusiastic exposition of Hume’s
alleged destruction of the natural law. He candidly admits, however, that Hume’s de­
structive criticism of natural law stands or falls with his psychology and analysis of
causation. But Hume’s psychology and analysis of causation flatly constitute an affront
to, and a mutilation of, the human intellect. Cf., e.g., Celestine N. Bittle, O.F.M. Cap.,
The Whole Man, pp. 316 -21, 540 f.
 T H E TU R N IN G AW AY FROM N A T U R A L LAW “5
statutes are void if they do not conform to the natural law.5 Ideas
such as these, inimical to arbitrary power and unlimited govern­
mental prerogatives, found a peculiarly favorable socio-cultural
environment in the New World, though here they came to re­
ceive a starkly individualist interpretation which, owing to the
Zeitgeist of liberalism and to special economic and social con­
ditions, culminated in so-called rugged individualism. It was
mainly with the growth of the analytical method of John Austin
(1790-1859) and with the progress of pragmatism that the dilu­
tion of the Christian legal heritage advanced to an alarming
degree.

The other offensive against natural law was launched by the

romantic movement and its legal offshoot, the historical school
of law. The genius of jurisprudence became exhausted by the
airy abstractions of the cosmopolitan natural law; it was sobered
and shaken by the passionate rhetoric and the horrible, legally
infamous sentences of the murderous tribunals of the French
revolutionaries. Now it bowed before the vigorous life of the
legal sense flourishing in the popular mind and committed itself
to the strictly antirevolutionary sway of the historical process.
Just as it had formerly been driven on by the arrogantly rational­
ist spirit of the Enlightenment, so now it was propelled by the
conservative thinking of romanticism. But the historical school
of law was not yet positivism, although it adopted a hostile atti­
tude toward natural law. Karl Bergbohm (1849-1927), the dili­
gent tracker of natural law, has made this point sufficiently clear.
Yet what Bergbohm (and many others with him) overlooked is
5 In the following century Sir William Blackstone laid down explicitly that "the law
of nature being coeval with mankind, and dictated by God himself, is of course superior
in obligation to any other. It is binding over all the globe, in all countries, and at all
times: no human laws are of any validity if contrary to this; and such of them as are
valid derive all their force and all their authority, mediately or immediately, from this
original” (Commentaries, i, p. 40, cited by A. V. Dicey, Introduction to the Study of the
Law of the Constitution [9th ed., London: Macmillan and Co., 1939], p. 62).
uf T H E N A T U R A L LAW

the fact that the historical school directed its attacks against the
individualist natural law. The blame for this gross error is to be
ascribed to the total ignorance of the great Western tradition of
natural law, together with the antimetaphysical mood of the clos­
ing nineteenth century.
The historical school of law showed an affectionate regard for
the past of peoples, especially for that of one’s own people. “ The
motley world of legal forms, like language, art, and mores, does
not evolve in virtue of deliberate natural reflection or reasoned
considerations of utility; it springs rather from the common con­
viction of the people, from the like feeling of inner necessity
which excludes all thought of fortuitous and arbitrary origin”
(Friedrich Carl von Savigny, 1779-1861). The state does not
create the law; it should only formulate it, just as in earlier
times the national judge merely “ found” the law and applied it.
The consciousness of law and its contents are the law. Law is the
general will of those living together under law. The spirit of the
people is the source of human or natural law, of legal principles.
Consequently the law of each people is as different from that of
other peoples as is its language. “ Hence to the German people
corresponds a German law” (Puchta). Within law, as in language,
are found provincialisms. Customary law is thus the first form of
the law which emerges from the dim workshop of the spirit of
the nation. Law does not originate through action of the state.
On the contrary, the state presupposes a legal consciousness, a
law, even though the state is a necessary complement of the latter.
In this way the historical school acknowledged three sources
of law: customary law, statute law duly promulgated, and the
science of law which brings the law, so to speak, into conscious­
ness by the path of jurisprudence. In its view, moreover, these
sources flow forth in chronological sequence. First on the scene
is customary law which, as the legal consciousness of the com­
munity, also represents, as it were, the higher law. With advancing
 T H E TU R N IN G AW AY FROM N A T U R A L LAW ” 7
civilization, as the state becomes conscious of its special mission
toward the law, the state regulates the various domains of life by
means of legislation. Last of all appears the science of law, which
gathers up the customary law, interprets the statute law, and, in
conjunction with the judiciary and the legal profession, brings
customary and statute law into agreement. The historical school
thus upheld a sort of hierarchy of these sources of law. Customary
law, which is in force among a people prior to the legislative ac­
tivity of the state, ranks highest. The state does not enact law that
is new and foreign to the people; it decides what in doubtful
cases is to be considered the general will so that it may itself ad­
here thereto. The science of law, however, brings into conscious­
ness principles of law which are, so to say, concealed in the
abundance of the concrete and intuitively known legal rules ac­
knowledged by the citizens as well as in the laws of the state. In
the order of importance this law of jurists ranks lowest, for it is
all too much in danger of becoming abstract. Wherefore both
the genius of jurisprudence and the genius of legislation must
seek to find the law where it abides par excellence, that is, in the
general legal consciousness of the people. Furthermore, the law
must be “ found.” It cannot be derived from unsubstantial prin­
ciples by a process of abstraction and rationalist deduction, since
it has but one principle: the obscure depths of the national spirit.
The historical school, therefore, acknowledged only positive
law. “ There is no law but positive law. What underlies the con­
ception of a natural law are precisely those concepts and precepts
of the divine order of the world, the ideas of law. But these possess
neither the requisite definiteness nor the binding force of law.
They are the motives for the perfecting of the commonwealth,
not already valid norms. Hence there are indeed demands of rea­
son on law, but there exists no law of reason.” Thus wrote the
philosopher of the historical school, F. J. Stahl (1802-61). Con­
sequently, he continued, “ the human community whose function
n£ T H E N A T U R A L LAW

it is freely to give to the concept of law its definite shape, can

convert the latter into its opposite and command what is unjust
and unreasonable; and even in this condition of opposition to
God the law retains its binding authority. The binding authority
of law is nothing else than the divine order of the world, but its
abode is the existing law which can come into conflict with God’s
order of the universe.”
Such was the first reaction of the positivist spirit to the indi­
vidualistic natural law, in particular and designedly to the idea
of natural law. “ For,” as Stahl insisted, “ the highest principles
touching the binding force of the positive law— that one must
obey the public authorities; whether there is a limit to this obedi­
ence and what the limit is; whether active resistance is permissible
—lie beyond positive law. Yet this pertains not to natural law but
to ethics, and hence everyone according to his conscience will
judge for himself before God what stand he should take on the
matter.”
Structurally, however, this position is akin to the speculation
characteristic of the law of reason. What we have here is, on the
one hand, the higher law of custom which, though not set up by
the state as a higher norm, rules prior to the state and over it; and
on the other hand, statute and jurist-made law which takes its
norm from customary law. Such at least is the way it ought to
be. But in keeping with its conservative attitude, like the whole
romantic movement antirevolutionary, the historical school,
faced by the decisive question of a conflict between positive law
and natural law (or ethics, as Stahl termed it), could only say:
“ Subjects may not, relying upon the natural law, set themselves
singly or collectively in opposition to the positive law; that would
be the crime of the Revolution.” Besides, customary law is re­
lated to the statute law of the state as the conservative natural law
of the state of nature was related, e.g., in the thinking of Christian
Wolff, to the statute law of the prince. The sole difference, though
 T H E TU R N IN G AW AY FROM N A T U R A L LA W 119

it is a decisive one, is that customary law was historically existing

law, not abstract law deduced from abstract principles. The his­
torically minded romanticism of the antirevolutionary era stood
no longer in need of such a natural law, for it felt no call to make
laws as did the reform-minded age of the law-of-reason enthusiasts.
But there is one more striking point. For the historical school,
too, the eternal law was not a genuinely binding norm, no more
than it was for Occam. Just as Occam had raised the question of
whether God (by willing it) can oblige a person to hate Him, so
Stahl declared that a positive law which is contrary to God’s law
is none the less binding. Despite the historical metaphysics of
the national spirit, law in the eyes of the historical school is will
rather than reason. T o state the matter more exactly, for the his­
torical school law is a product of the vital, irrational impulse in
historical development, a result of historical necessities and of
the spontaneously working power of the popular mind, rather
than a product of clear, cool, non-historical reason. Nevertheless,
although the historical school was positivist, it did not disavow
justice, but referred the latter to moral philosophy. Its object was
to replace the eternal and unchanging natural law with its cos­
mopolitan appeal to enlightened reason by the rich and varied
abundance of the positive, historical, national law. This it did
in order effectively to oppose the demands, clothed in natural-
law dress, of the revolutionary publicists and of the jurists who
were clamoring for reform and pressing for the codification of
the law. The historical school was neither able, nor did it wish,
to dispute the right, in principle, of ethics to pass judgment upon
existing historical law. Stahl, as has been indicated, expressly
stated: “ What underlies the conception of a natural law are pre­
cisely those concepts and precepts of the divine order of the world,
the ideas of law.” And he assigns to the philosophy of law the
knowledge of what is just and valid independently of all recogni­
tion.
12C T H E N A T U R A L LAW

It is, then, no wonder that out of the same spirit of romanticism

and in spite of the struggle of the historical school, the natural
law forthwith reappeared in a purified form. With the victory of
empiricism, scientism, and antimetaphysical thinking, however, it
was once more driven back to the confines of Catholic moral phi­
losophy and the adherents of the philosophia perennis. but only
to return at once.

Thus the idea of natural law remained alive throughout the

entire nineteenth century. Certainly, open profession of the doc­
trine through employment of the name itself was no longer so
common. But the systems of philosophical right, of conceptual
or pure law, and of law in itself are indicative of the vitality of
the natural-law idea. They are likewise indicative of the fact that
the nineteenth century was for the most part acquainted only
with the individualist natural law of Pufendorf and his succes­
sors, especially with that of German idealism and that formulated
by Kant. The natural law and philosophy of law of earlier cen­
turies, with the exception of a few stereotyped formulas which
were repeated ad nauseam and in their isolation had very little
meaning, were wholly unknown to nineteenth-century legal
thinkers. This remarkable telescoping of tradition to the period
of from 1600 on had disastrous consequences, as no less a scholar
than Rudolf von Jhering complained. As is well known, the
latter asserted, amid severe reproaches leveled at contemporary
philosophy, that he would probably not have written his work,
DerZweck im Recht, had he been acquainted with the philosophy
of the past, in particular with that of St. Thomas Aquinas. For,
he went on to say, “ the basic ideas I occupied myself with are to
be found in that gigantic thinker in perfect clearness and in most
pregnant formulation.” 6
6 Der Zweck im Recht (2nd. ed.), II, 162, cited in Martin Grabmann, Thomas Aquinas.
His Personality and Thought, trans. by Virgil Michel, O.S.B. (New York: Longmans,
Green and Co., 1928), p. 162.
 T H E T U R N IN G AW AY FROM N A T U R A L LAW 12 1

Noteworthy, however, is the fact that though this epoch, down

to about the time of the victory of scientism and even earlier in
the case of historical materialism, was often ashamed of the name
“ natural law,” it did not repudiate the thing itself, that is, a real
law before and above the positive law. We observe that this idea
was upheld particularly in penology. Certainly it is much more
difficult to maintain that murder, manslaughter, perjury, theft,
and adultery constitute breaches of the law solely because the
positive law so determines than, e.g., that a written form is re­
quired for the legal validity of a promise of gift or that, since a
person can make free testamentary disposition of his property
(in contrast to the right of succession) only in writing, this is law
because the positive law so ordains. No, the positive law prohibits
such crimes and threatens their perpetrators with the heaviest
penalties because the deeds are wrong in themselves: no agree­
ment or statute could make them lawful. In like manner the idea
of natural law was further applied in the case of international
law. Here, too, the norms governing the international community
did not consist of positive law alone, nor did actual practice suffice.
In particular, the first principles of international law, e.g., the
much-invoked fundamental rights of states, are rules of law, not
because some congress of states has so decreed or because a usage
may exist,-—political history proves how frequently this usage is
overridden— but because here the legal conscience still strives
with unyielding vigor to prevent might from making right.
The second reason for this continued existence of the natural
law in the disguise of a pure, absolute law was the circumstance
that the separation of ethics from law, inaugurated by Thomasius
and Kant, could not be carried through. The great function of
the idea of natural law, to preserve morality in the law, continued
to be performed even during this period. That the importance of
the natural-law idea was outwardly not so great is readily ex­
plainable. The great codifications of the early nineteenth century
las T H E N A T U R A L LAW

had taken over the moral, yes, “ natural” principles of law almost
without exception and explicitly in the form of general clauses.
Consequently ethics was embodied in the law.
But down to the last decades of the nineteenth century the
natural law maintained itself even outside the Christian doc­
trine of natural law which lived on in the native soil of a great
tradition. It was taught, for instance, by the Aristotelian, F. A.
Trendelenburg (1802-72), in his system of a natural law grounded
in ethics.
Nevertheless, throughout all the centuries the tradition of nat-
tural law held its ground in the philosophia perennis. It is true
that it was treated with contempt by Pufendorf and Thomasius.
But this attitude is not difficult to understand. The adherents of
the traditional natural law, even in the seventeenth century, had
exposed the extreme rationalism of Pufendorf and others, just
as later on, in the era of revolutions, they did battle with the
revolutionary dynamic of individualism. They also stood in the
front line when the notion again gained ground in international
life that the fact creates right.
In his Syllabus of 1864, Pius IX condemned the following prop­
ositions: “ Moral laws do not require a divine sanction, nor is
there any need for human laws to be conformable to the law of
nature or to receive their binding force from God” (56); “ Rights
consist in the mere material fact, and all human duties are an
empty name, and every human deed has the force of right” (59);
“ The commonwealth is the origin and source of all rights, and
enjoys rights which are not circumscribed by any limits” (39).7
In connection with the revival of Thomistic philosophy under
Leo X III, Catholic scholars began afresh to occupy themselves
with the natural law in the context of moral philosophy. As a
result a large number of important and comprehensive treatises
7 The entire text of the Syllabus in English translation may be found in Raymond Cor­
rigan, S.J., The Church and the Nineteenth Century (Milwaukee: The Bruce Publishing
Co., 1938), pp. 289-95.
 T H E TU R N IN G AW AY FROM N A T U R A L LAW 123
made their appearance under such titles as Institutiones iuris
naturalis. Leo X III himself, in his encyclicals on political and
social matters, afforded a shining example of the strength of the
natural-law idea, which precisely from that time on was exposed
within the sphere of jurisprudence to the fiercest attacks at the
hands of positivism.
The doctrine of natural law also proved to be extraordinarily
valuable for constructing Christian social theory as well as for
establishing Christian social policy. The social encyclicals of
Leo X III (Rerum Novarum, 1891) and Pius X I (Quadragesimo
Anno, 1931) are themselves weighty evidence of this value. At
the same time, these very encyclicals and the treatment of the
social question undertaken in numerous and sometimes authorita­
tive writings, together with the critical analysis of that fossil of
the individualist natural law, individualist liberalism with its
purely economic basis, constitute a strong proof of the vitality of
this Christian doctrine of natural law. Other by-products of the
same movement were the development of the so-called natural-
law doctrine of the state and the grounding of sociology in social
metaphysics, which received systematic treatment and a solid
foundation in the natural-law doctrine. Further telling evidence
of all this is found in the lifework of Heinrich Pesch, S.J. (1854-
1926),8 among others, as well as in the important part played by
the natural-law doctrine in the theoretical and practical policies
and reforms sponsored by the Catholic social movement and de­
veloped in its literature.
s Cf. especially Franz H. Mueller, Heinrich Pesch and His Theory of Christian
Solidarism. Aquin Papers: No. 7 (St. Paul, Minnesota: The College of St. Thomas, 1941).
 CHAPTER VI

The Victory o f Positivism

T he attack of positivism proceeded from several quarters along

an ever-widening and enveloping front. It came first from scien­
tific empiricism, which was generally lacking in a sense of the
normative. The conflict of ethics with sociology opened, so to
speak, a second front. The third point of assault was the spread of
philosophical and historical materialism. For, in the “ overthrow
of the titans” of German philosophy, even the power of German
idealism after Schelling and Hegel had been broken, notwith­
standing the efforts of the post-Kantians (Feuerbach, Marx).
Empiricism, which dismisses metaphysics as epistemologically
impossible (agnosticism), believed that, since it had won such
great triumphs in the natural sciences, it is also the right method
to follow in the so-called cultural sciences.1 It penetrated into
legal philosophy in proportion as the historical school, which
in this matter had acted somewhat as a forerunner, came more
and more to adopt what amounted to Kant’s view of the connec­
tion of law with morality. According to K. Binding, for example,
the sole way to true knowledge of the law is exact analysis of ac­
tually existing law, present and past. The philosophy of law should
therefore not only rest upon mere external experience, but it
should be restricted thereto. Every project of passing beyond it
is rejected as metaphysics.
Philosophy of law, however, means understanding the ultimate
and highest principles of law: it means understanding the essence
1 See, in general, John Wellmuth, S.J., The Nature and Origins of Scientism. The
Aquinas Lecture, 1944 (Milwaukee: Marquette University Press, 1944).
124
 T H E VICTO RY OF POSITIVISM 125
or nature of law, the source of its obligatory character, the essential
and intrinsic difference between right and wrong, justice and in­
justice. Experience teaches us nothing about all this. It merely
tells us that such and such laws were enacted by the constitutional
organs, that this or that rule was once recognized as law. But cer­
tainly all true understanding of law calls for something more. It
demands to know just why in final analysis this law was right, and
why this law could become binding in conscience. It is thus no
wonder that empiricism led not only to relativism, but to skep­
ticism as well. No right exists as an eternal idea. There are merely
positive rights which are only to be known, not to be recognized.
The ignoramus et ignorabimus (“ We do not know and we shall
never know” ) of the natural scientists invades legal philosophy.
The will of the state, the formal general will of the citizens, is
the source and criterion of law. Sociology thereupon explains by
the mechanism of environment, by the struggle of interests, the
further question of why this particular norm is chosen by the
will. Lastly, historical materialism reduces law to the level of
a mere reflex of the modes of production and the class struggles,
or to a line of demarcation between classes.2

T o be fair, therefore, we must distinguish two forms of posi­

tivism: first, positivism as a consequence of an empiricist narrow­
ing of reality, as a method; secondly, positivism as a philosophy of
life, as a conception of the meaning of the universe and of man’s
place in it, as a Weltanschauung. The crudest expression of this
second form of positivism has been materialism, whether in
its metaphysical (Feuerbach, Buechner, Haeckel) or historico-
economic dress (Marx). Moreover, the second form of positivism
has played by far the more important role.
2 For a brief but penetrating exposition and criticism of recent American schools of
jurisprudence which pass for philosophies of law,—sociological jurisprudence, economic
determinism, and realism with its psychological, experimental or skeptical approaches,—
see Francis P. LeBuffe, S.J., and James V. Hayes, Jurisprudence (3rd ed. rev., New York:
Fordham University Press, 1938), pp. 70-81.
is? T H E N A T U R A L LAW

Positivism as a method was already present in the historical

school of law. It developed with the victorious advance of scien­
tism, of natural-science modes of thought.8 This approach to
reality became the standard methodological pattern for all scien­
tific thinking, as was once the case of deductive, mathematical
rationalism which insisted on conceiving and handling ethics and
law more geometrico. The essential feature of this view of reality
is the prominence assigned to the empirical knowledge of indi­
vidual things, and the restricting of the mental horizon to the
empirical and the individual. Whatever else there may still be is
ethics and not law, for it is not a law that is immediately expe­
rienced. This attitude held relatively little danger so long as
moral philosophy itself did not become positivist. But when this
occurred, there resulted from methodological positivism, which
relegated the natural law to the background of ethics, either a
world view that was frankly materialist or a self-denying skep­
ticism which, with an almost ascetical self-restraint, merely gath­
ered, compared, and verified. Or positivism simply referred to the
newly emergent science of sociology what had hitherto been as­
signed to ethics; it tried thereby to rid itself of responsibility for
answering the fateful question of the foundation of law.
The jurisprudence of materialism must boil down to mere
positivism. Materialism regards man as nothing more than a
highly evolved animal; the soul is a mere concept, required by
the law of parsimony, for the manifold functions of the brain: it
is not an immaterial, immortal substance. In place of a personal
God, materialism is a doctrine of impersonal eternal force or
of perpetually recurrent changes of matter in accordance with
the blind necessity of the laws of nature. There thus exists no
free will, and hence no morality in the Platonic and Aristotelian
* On scientism and on the proper relations between natural-science modes of thought
and philosophy, see John Wellmuth, S.J., op. cit.; Jacques Maritain, The Degrees of
Knowledge, trans. by Bernard Wall and Margot R . Adamson (New York: Charles Scrib­
ner’s Sons, 1938), chap. 1; Jacques Maritain, Scholasticism and Politics, trans. by Morti­
mer J. Adler (New York: The Macmillan Co.), chap. a.
 T H E VICTO RY QF POSITIVISM is7
sense, or in that of the Roman jurists, or in that of the entire
Christian tradition. Right as idea and the order of justice are
things, concepts, which have as little relation to reality as have
God, immortality, and free will. Positive law alone exists, i.e.,
coercive law, for only what is actually enforced is law; and it is
merely a creation of the state. Moreover, the state itself is not
recognized as a moral collective person, as a moral phenomenon.
It is rather a necessary product of the evolution of social forces
or, as historical materialism declares, of the conditions of produc­
tion. It is a natural product in the proper sense of the term. In
this way it is, what it is in fact, merely a thing of the class that
actually has the upper hand, the ruling class.
The positive law, on the other hand, is “ the boundary, fixed
for the time being by the social groups struggling for power and
influence in the state, of their authority and their influence”
(Gumplowicz). This boundary is continually shifting; a common
body of ethical and legal ideas is wanting. Here the law of the
stronger holds sway. Callicles had spoken of this long before, and
he as well as Spinoza had identified it with the natural law be­
cause they regarded nature as the antithesis of mind. Conse­
quently there is no eternal justice, nor is there an unalterable
moral law. The state is the creator of morality and law, but the
state in turn is merely a product of the struggle of social classes
and servant of the class that rules at any given time. Hence “ the
political order is the moral order for the time being, and the
self-interest of the state [which is itself a product of naked power]
is an element of morality. . . . All the highest goods that man
possesses— freedom, property, family, personal rights—he owes
to the state” (Gumplowicz). Law is thus not a genuine norm. It
does not tell what ought to be, but is merely an indication of how
far the power, the material and psychological power, of the ruling
class extends. The law indicates what the sociological situation is.
This is the extreme form of materialist jurisprudence. In this
iaf T H E N A T U R A L LAW

view, the law is neither reason nor will: it is but the line of de­
marcation of the relations of social power. Therefore real force,
whether physical or psychical, is of necessity the essential note
of law. Law is merely what is actually enforced, not what is en­
forceable. jurisprudence is an inept expression, handed down
from a metaphysico-theological age, for the materialist sociology
of a purely experimental science that tells how the power pattern
of the groups within a society stands at the moment in the struggle
for the machinery of political control.
In contrast with this crassly materialist positivism stands a
moderate form of positivism. The latter simply acknowledges the
positive law as legally binding, and believes it possible to forgo
a philosophy of law, i.e., to avoid the question of the basis of the
binding character of law. Law is the will of the state that is ex­
pressly declared to be such, is enacted in conformity with con­
stitutional provisions, and is then duly promulgated. Any further
criterion, as, e.g., the inherent justice or the moral lawfulness
of the action commanded by the positive law, is rejected as ir­
relevant for the sphere of law. The legal sphere is identified with
the creation of law by the state, the carrying out of the law by
the administration and the citizens, and the applying of the law
by the judges. This is the position taken by the so-called theory
of will, which has gained numerous adherents in political science
and international law. It has found its strongest expression in the
idea of the absolute sovereignty or the juristic personality of the
state. Such sovereignty is even greater than that of the absolute
monarch of the seventeenth and eighteenth centuries, who con­
sidered himself bound by the natural and divine law. Indeed,
upon closer examination, the doctrine of sovereignty transfers
states, after the manner of Hobbes, into a pure state of nature
with its single rule of self-preservation. Thus international law
is dependent at every moment upon its actual acceptance or re­
jection by the states, just as parliamentary majorities in states
 T H E VICTO RY OF POSITIVISM 129

like England may in theory pass any measure whatever. Law is

consequently no true norm or something pertaining to reason,
but mere actual will in the psychological sense. It does not de­
pend upon the essential being of things or upon the nature of
the case, which L. von Baer, following here the Anglo-Saxon judi­
cial tradition, designated as the basis of law.
Such views can emanate from a tired agnosticism that admits
no metaphysical foundation of law. They can also spring from
a strong feeling against the rationalist deductions of the natural-
law doctrine which prevailed in recent centuries. Often, too,
they are the result of a hostility, stemming from a conservative
outlook, toward the revolutionary components of the newer nat­
ural law. These components hold danger for the state, whose in­
spirational value and sublime dignity are held to need no further
justification. Moreover, the reason for such views often lies in
the typical attitude of the modern scientific mind: satisfaction
with the mere ascertainment of what actually exists, industrious
search for facts, idolatrous worship of the factual. On the other
hand, many students of law are much concerned about the great
blessing of legal certainty. These hold that even a poor law and
its application are more conducive to the general welfare than
the riddling of the positive law by appeals to natural law or moral
principles. This contention is based on the importance of the
secure expectation of the members of the community that they
may count on a definite and, if need be, enforced mode of con­
duct on the part of the rest. They clinch this contention by point­
ing out that no uniformity of views and convictions concerning
this higher law prevails either among the members of the com­
munity or on the bench or among jurists.
With the exception of the group of agnostics, these jurists in
no way deny the value of justice or the validity of the ethical norm.
What the older writers termed natural law they regard as an
ethical norm. But such norms, so far as these are not contained in
 T H E N A T U R A L LAW

the positive law, they exclude from “ law.” In their eyes, law and
justice, law and right, are not identical. The lawmaker, of course,
should enact no unjust laws. Yet if he enacts a law of this kind,
it is law in the true sense. One may not look upon it as non-binding
from the viewpoint of a natural law, but only from the viewpoint
of ethics. This matter, however, everyone must settle for himself
with his own conscience. Legal dualism, the doctrine of a natural
law functioning as real law concomitant with and superior to
the positive law, is flatly repudiated.

The ultimate basis of this moderate positivism was and is the

paralyzing realization of the unsettled condition of philosophy
in the nineteenth and early twentieth centuries. This was and is
quite apparent even in moral philosophy, which itself was not
long in becoming positivist. For so must we designate an ethics
which holds with Friedrich Paulsen, for example, that morals
or mores “ are, like instincts, . . . purposive modes of behavior
for solving the various problems of life,” 4 or in the form of prag­
matism identifies the good with what is useful and successful, and
evil with what is detrimental and unsuccessful (biologism). This
school of thought has been unable to find a distinction between
a material, unalterable ethics and such positive, interested, his­
torical moral codes as those of the nobility, the bourgeoisie, and
the peasants. Thus, in the face of ethical relativism and the re­
jection of all metaphysics, it could see no other possibility than a
self-denying positivism in law.5
The great speculative outburst of German idealism had given
4A System of Ethics, ed. and trans. by Frank Thilly (New York: Charles Scribner’s Sons,
1899), p. 346. Italics in the original.
5In regard to ethical relativism, see the remarkably forthright admissions, and no
less remarkable confusions, of Friedrich Paulsen, op. cit., pp. 19-25, who reaches the fol­
lowing general conclusion (p. 25): “ Every moral philosophy is, therefore, valid only for
the sphere of civilization from which it springs, whether it is conscious of the fact or
not.” Cf. Jacques Leclercq, Le fondement du droit et de la society (2nd ed., Namur: Mai-
son d'Editions Ad. Wesmael-Charlier, 1933), pp. 25-43: Walter Farrell, O.P., A Com­
panion to the. Summa, Vol. II, chap. 21.
 T H E VICTO R Y OF POSITIVISM ‘81
way to a purely formal criticism of knowledge, to which the con­
tents of thought were a matter of indifference or which was even
frankly skeptical about the possibility of attaining scientific
knowledge of the content of ideas. Stahl’s work on the philosophy
of law, which was representative of the thinking of the historical
school of law, appeared in a final (fifth) edition in 1878, that of
H. Ahrens, in a second (last) edition in i860. Roeder’s work on
the natural law appeared in a second (last) edition in the same
year, i860, and the already mentioned treatise of the Aristotelian
Trendelenburg on the natural law based on ethics appeared in
a final edition in 1866. It is likewise significant that, toward the
close of the century, the compiling of the first volume, dealing
with legal philosophy, in Holzendorfs well-known Encyclopedia
of Law was entrusted to A. Merkel, the first thoroughgoing posi­
tivist. The philosophy of law, the theoretical doctrine of the nat­
ural law, now became a general science of law, a nonmetaphysical
science founded on generalization and comparison, in full agree­
ment with the evolution in philosophy.
Positivism, of course, could be no more permanently satisfying
than could the historical school of law with its one-sided prefer­
ence for customary law and the purely historical element in a
science which has to do with oughtness, with norms. This external
mark of the formal will of the lawmaker can by no means answer
the perpetually arising question about the intrinsic difference
between right and wrong. “ Legal statutes must be measured by
some standard or other to prove that they are justified” ; more­
over, “ the doubt whether the existing law is in conformity with
reason cannot be simply pushed aside” (R. Stammler). The exist­
ing law must also be one that ought to exist. The much-acclaimed
consciousness of right is not a creator of law but an intimation
that a legal fact is perceived and acknowledged as one that also
ought to be.
It is a continually recurring experience that, even when we are
*35 T H E N A T U R A L LAW

wholly disinterested in a matter, we keep trying to distinguish

laws as good and bad according to their purpose, but as just and
unjust laws in accordance with an intrinsic criterion. Yet that is
possible only if this intrinsic criterion is the very basis for the
qualification of right and wrong. Hence pure positivism has at
no time been carried through in actual practice, even in the
countries that make the judges wholly dependent on the formal
law. It is simply repugnant to the notion of a true judge to be
merely a subsuming automaton. Even the positive law has again
and again had recourse to morality, to natural-law norms. This it
does since the presupposition of positivism, that is, the lack of
gaps in the statute law, is not verified. Moreover, not only do
legal codes refer to the natural principles of law (e.g., Austrian
General Civil Code, Code of Canon Law), but even the law itself
refers to good faith and to good morals. In these references there
is no thought at all of that which is merely proper, of that which
passes at a given period for respectable or conforms to the mores
of a certain class of society. Frequently in such cases it is far more
a question of the conclusions and further inferences from the
natural law as well as of applying them. Nor does it do any good
to explain, in a spirit of unshakable loyalty to positivism, that
the lawmaker has precisely willed all this. For such an explana­
tion presupposes not the actual lawmaker but an ideal one, i.e.,
a lawmaker who wills what is just.
“ The individual experience of law is, when clearly grasped,
dependent upon the universally valid concept of law, not vice
versa. The concept of law cannot be derived from particular
legal experiences (through induction or comparison), since these
really become possible only through the former” (R. Stammler).
Law exists prior to jurists and legal philosophers. They have not
created law, but, inversely, law is the precondition of a legal pro­
fession and philosophy of law.
 T H E VICTO R Y OF POSITIVISM 133
We have recorded the victory of positivism. But this must not
be taken to mean that positivism won a definitive and total vic­
tory on all intellectual, moral, and political fronts. The victory,
such as it was, was the outcome of the eventual undermining of
metaphysics and the progressive dilution of the Christian heritage
at the hands of both Kantian criticism and empiricism. The im­
mediate result of these trends of modern thought was an agnostic
and skeptical relativism, whose mock heroism showed itself in
an almost ascetic, disillusioned search for “ facts” and whose con­
tempt for the theological and metaphysical era was pretentious
and likewise ridiculous. Wherever these presuppositions of posi­
tivism did not prevail, the idea of natural law continued to live
its now hidden life. It is true that most university professors and
most practical jurists, to say nothing of the popularizers of shift­
ing scientific fashions, spoke of natural law as a dead letter. Yet
the idea of natural law once more found refuge in the philosophia
perennis which, as we have repeatedly pointed out, had been its
home whenever it was exiled from the secular universities and
law schools. And the idea, divested of its academic dress, went on
living also in common sense, in the minds of ordinary men.6 Berg-
bohm, the Quixotic assailant of natural law, was forced to admit
that all men are born natural-law jurists. How right he was! The
spirit of skeptical agnosticism, which denies to the human mind
access to transcendental truth and objective values and, doubting
the inner logic of the universe, constructs subjective systems of
thought, is more an attitude for the academic ivory tower or for
the private study of one who enjoys economic security.
In real life this attitude is untenable. When he acts, and does
not merely turn things over in his mind, even the skeptic acts as
if such a thing as natural law or objective justice existed, as the
common sense of ordinary men and women has always implicitly
o On the important question of the relation between philosophy and common sense,
cf. Jacques Maritain, An Introduction to Philosophy, chap. 8.
134 T H E N A T U R A L LAW

held. And the reason is obvious. If anyone were to attempt to

realize a strict and consistent positivism in the everyday life of
society, his sole possible attitude would be an unbearable cyni­
cism. When he becomes interested in problems of economic, so­
cial, or political reform, the avowed positivist frequently turns,
in practice and as it were unconsciously, to the idea of natural
law and to standards of unchanging justice. The “ scientific mind”
may skeptically deny the existence of the natural law, but the
heart, in which, as St. Paul says,7 the natural law is recorded or
inscribed, affirms it. It is easy to profess and proclaim positivism
in a culture that is secure and is saturated with materialism. Posi­
tivism is the typical by-product of a solidly established, eco­
nomically secure, and politically unendangered ruling class
(beati possidentes). Yet man with his unquenchable thirst for
justice cannot long be content with such an attitude. The hunger
and thirst after justice are no less pressing than the ceaseless quest
for truth. The idea of the natural law may thus be compared to
the seed which, buried under the snow, sprouts forth as soon as
the frigid and sterile winter of positivism yields to the unfailing
spring of metaphysics. For the idea of natural law is immortal.
i Rom. *: 14-16.
 CHAPTER VII

The Reappearance o f N atural Taw

T hegenius of the legal sciences could not be detained for long

in the arid waste of positivism. Bergbohm, who tracked down the
natural law into all the nooks and crannies in which it was sup­
posed to have hidden itself from positivism, found everywhere,
even among self-styled positivists, natural-law thought patterns.
His intention was to dislodge it definitively. The year was 1885.
Had Bergbohm repeated his hunt for the natural law about 1925,
forty years later, he would have been shocked at the many new
camouflages of his quarry. There is manifestly something invin­
cible and eternal about that body of spiritual and moral ideas
which for thousands of years has been called natural law and is
once more coming back into honor. This is true even if those who
admit these ideas in fact look back with false shame at the deduc­
tive extravagances of the rationalism of the seventeenth and eight­
eenth centuries and suppress the name of natural law. Not many
concepts have had to endure so much violence as the notion of
natural law. Yet few conceptions have had so proud and so great
a tradition and a past, and are destined to have so great a future.

Positivism had no sooner achieved its position of dominance

than men began to turn away from its Stoiclike self-denial. This
first occurred, in a rather timid fashion, in the Neo-Kantian phi­
losophy of law, of which the doctrine of Rudolf Stammler (1856-
1938) affords a specific and typical instance. Stammler distin­
guishes between form and content of law— in the Kantian sense,
of course, not in the Aristotelian. For Stammler, “ formal” means
!35
J 3e T H E N A T U R A L LAW

the same as “ conditioning,” and he accordingly asks under what

conditions positive law can be true law. Thus it is not a question
of a legal content, but, as in Kant’s ethical system, a question of
a purely formal and empty concept which can receive various con­
tents. Law thus becomes a “ conditioning and determining form”
of social life as the matter, the content. But this form hovers as
far above every merely historical content as, in Kant’s philosophy,
the world of noumena soars above that of phenomena. Yet just as
Kant did not attain to a material ethics determined by being, so
Stammler fails to achieve a material jurisprudence. On the con­
trary, he arrives at a natural law with historically changing con­
tents, for natural law is merely his concept of formal law. Such at
least should be the case.
In reality, however, Stammler’s doctrine of law does attain to
contents— by way of the “ social ideal” of the community of “ freely
willing men.” By this path he arrives at universally valid legal
principles which, because of their emptiness, are in part merely
tautological. An instance in point is the principle that the in­
dividual should not be compelled to renounce interests to which
he is fully entitled. But the whole question, of course, is to de­
termine what makes him fully entitled to certain interests. Or
“ the unconditioned law for man is the good will, i.e., the direc­
tion and determination of empirical ends, which can present
themselves as universally valid, abstracting from subjective sel­
fish impulses.” However, good will has precisely little to do with
the rightness of a law; and whether or not the will is good, i.e., free
from subjective selfish impulses, needs precisely to be ascertained
by comparison with objective, legitimate, unselfish impulses. In
this way, then, Stammler ascribes to his formal law contents that
are “ right,” measured by the social ideal which likewise is not
without a content that supplies a standard. The community of
freely willing men implies, according to Stammler, rejection of
slavery, polygamy, and despotism. But the rejection of adultery,
 T H E REAPPEARANCE OF N A T U R A L LAW 137
perjury, theft, and intentional killing of an innocent person is
equally well founded. It is no wonder that the positivists have
charged that Stammler’s natural law with a changing content
still retains a sort of sediment of unchangeable “ old” natural law.1

Many jurists separate the juridical and social aspects. Jellinek,

for instance, in his political philosophy makes a distinction be­
tween legal theory and social theory. The legal theory is con­
structed along positivist lines; and then in social theory the old
natural law at times breaks through. It is altogether surprising
how often recourse has been had to the natural law, i.e., the idea
of unalterable norms, in social philosophy and sociology for the
building of social institutions, after it had been banished from
jurisprudence. And yet this should not be wondered at, since
social philosophy has from of old been closely connected with
moral philosophy, as may be seen in every table of contents of the
great Institutiones iuris naturalis of Theodor Meyer, Cathrein,
Costa-Rosetti, Taparelli, Schiffini, and others. It is astonishing
solely for the social doctrine that really wishes to be purely em­
pirical and yet judges the empirical world of social phenomena
by an unexpressed but ever-present social ideal of a just social
order as a standard. The same is true of ethics. Even in the more
recent systems of ethics, as in that of Nicolai Hartmann, we find
principles aplenty which contain good old natural law. The insti­
tution theory of Maurice Hauriou (d. 1929),2 the eminent French
jurist, likewise contains, as even his respect for St. Thomas Aqui­
nas would indicate, principles corresponding to the old natural
law.
On the whole, in this advance of the idea of objective order as
opposed to conditions and relations arising from the arbitrary
1 For an exposition and criticism of Stammler’s Neo-Kantian philosophy of law, cf.
Erich Kaufmann, Kritik der neukantischen Rechtsphilosophie (Tuebingen: J. C. B.
Mohr, 1921), pp. 11-20.
2 Cf. Jacques Leclercq, Le fondement du droit et de la society, pp. 276-78.
*3* T H E N A T U R A L LAW

will of individuals, we can and must see a sign of an intellectual

revival that is open to the natural law. German legal scholars
sometimes speak of the flight of certain natural-law principles
(such as good faith, good morals and what we have the right to
expect somebody to do or to tolerate) into the general clauses of
the German Civil Code. This fact is most embarrassing for the
formal jurist, particularly for a jurist who simply regards as an
ideal the obligation of the judge to adhere to the formal law. But
this is merely one more clear indication that alongside the posi­
tive law stands yet another law which often exactly resembles the
old natural law. Indeed, it is an experience repeatedly verified
that natural law makes its appearance whenever, through an alter­
ing of the circumstances, to use St. Thomas’ expression, the posi­
tive law would work material injustice if it were applied. This
situation occurs when the ontological foundations of the law
have undergone a substantial change or when improved under­
standing reveals the inadequacy of this positive law. Ever since
the dogma of the absence of gaps in the positive law was over­
thrown, natural-law concepts have been pushing in more and
more; and the necessity of a moral quality in the law is receiving
recognition in continually widening circles. The French Civil
Code threatened with punishment the judge who would refuse
to hand down a decision on the plea that the law is silent on the
matter. When the judge finds no positive rule in the code, he is
to make use of the principles of natural equity in reaching a
decision.

From still another angle legal positivism has proved itself ut­
terly inadequate. Positivism has only one criterion for law: the
will of the sovereign formulated in accordance with the legisla­
tive process prescribed by the constitution. This formal criterion,
consisting in the observance of the method and form of legisla­
tion as provided by the technical constitutional rules, is all; any
 T H E REAPPEARANCE OF N A T U R A L LAW

material criterion (conformity of the law with the ethical end of

the state, with the objective common good, with the objective
moral law) is repudiated by positivism. The latter acknowledges
only formal legality; it has no place for material legitimacy. Now
either the will of the legislator, formulated with legal correct­
ness, must be taken as a mere psychological act, or the will, i.e.,
the law, is to be regarded as the act of rational beings which has,
or must be presumed to have, a content determinable by reason.
Yet even the positivists agree that, for the jurist at least, the will
of the legislator is no mere psychological act. The jurist has to
concern himself with the intent of the law, with the ratio legis;
that is, he has to concern himself with the normative intention of
the lawmaker, not with the psychological facts of formulating and
declaring or enouncing the intention. As applied in juridical and
administrative practice, therefore, the psychological will disap­
pears, and rightly so, and a new idea makes its appearance,
namely, the rational intention of a normative character. In this
way, what matters is not the psychological will enunciated in a
legal document which represents the sole fact, but the normative
intent of an abstract legislator who deliberates and resolves in
a rational manner. The latter is substituted by the courts and
administrative agencies for the factual lawmaker.
The law thus acquires an objective mode of self-existence which
is independent of the psychological acts or of all persisting acts
of will. Practically speaking, the law contained in the statute
books is no longer any conscious and enduring will. It is con­
strued as a regulative norm, as the result of the deliberations and
reasonable intentions of a legislator who is presumed rational as
well as prone to regulate certain social relations in a reasonable
manner. The jurist imputes reasonableness to the will of the law­
maker; he is little concerned with the psychological process of
willing. The law as a norm frees itself from the psychological will
as soon as it is inscribed in the statute books and interpreted in
14c T H E N A T U R A L LAW

the courts. Very often, indeed, it even frees itself from the actual
intentions of the concrete legislators and acquires an existence of
its own in virtue of the end or purpose in the law. It is not the
subjective intention that matters, but the objective intention of
an abstract reasonable legislator, whom the jurists assume to
have, as a rational being, intended a reasonable regulative norm.
The formal text of the statute is construed in this sense, and not
by a study of the subjective, psychological moods, intentions, and
wills of the accidental members of the legislature whose action
may have been very unreasonable. This liberation of the law as
an objective, reasonable norm from the actual concrete psycho­
logical will of the legislator proves that law is essentially reason
and not arbitrary will.
In the second place, no positivist can get around the problem
of limitations of governmental authority or limitations on the
will (sovereign will) of the legislator. It is a common conviction
that the law limits the will of the legislator, that the latter can­
not will what he pleases. In effect, limitations of this sovereign
will represent a dilemma for the positivist, who contends that the
duly formulated and promulgated will of the legislator makes the
law. Jellinek thought to resolve this dilemma of the positivists by
saying that the lawmaker limits himself (theory of auto-limita-
tion). But this theory does not solve the juridical dilemma, even
though in practice the legislator may feel himself bound by prom­
ises of auto-limitation. For as long as the auto-limitation is itself
dependent on the will of the lawmaker, those who are subject to
this will are at the mercy of the uncontrolled arbitrariness of the
lawmaker.
It may indeed be objected that at least under a representative
form of government such an auto-limitation is workable enough
in practice. Since in the system of representative government the
will of the legislature is the product of a rational deliberation and
ample discussion of pros and cons, it may safely be considered to
 T H E REAPPEARANCE OF N A T U R A L LAW 141

represent the general will. In other terms, the legislative will is

identified with the will of the citizens: the lawmakers and those
subject to the law are in some way identical. But this contention
is superficial and untenable. In actual practice, the general will,
because representative government is almost necessarily party
government, is always at best a majority decision against which
the minority will ever claim the protection of the law. For the
formal will of the numerical majority cannot logically be asserted
to be always reasonable and just, however great the presumption
may be that the majority has more and better reasons for its de­
cision than has the minority. This claim of the minority to pro­
tection by the law against the will of the majority functioning as
the positive law clearly shows that there exists prior to the posi­
tive law an a priori element of a material character which qualifies
the legislative will as just or unjust. It is strange but common to
see many jurists who adhere to positivism bow before this a priori
limitation of the will when they turn social reformers. On these
occasions they do not condemn the existing law as technically
inefficient, as failing to achieve its juridically and morally in­
different purpose. On the contrary, they condemn the injustice
of the purpose itself, the immorality and unreasonableness of
the will itself. They thus acknowledge and establish pre-existing
conceptions of justice, morality, and reasonableness as limita­
tions of the legislative will and as material criteria of the positive
law, in place of mere political prudence that seeks to avoid armed
resistance on the part of a strong minority which has been de­
feated at the polls.

The influential French jurist, Leon Duguit (1859-1928), was

quite conscious of this necessity of limiting the legislative will
through the law. Nevertheless he stubbornly maintained that he
was a positivist, and he labored to refute the idea of natural law.
But how can the legislator’s willing be limited by the law, if the
141 T H E N A T U R A L LAW

latter is the creature of his will? According to the positivist school

the state as legislator is the omnipotent creator of the law; but
Duguit certainly did not agree with such a juridical deification
of the legislator. If the state is the omnipotent creator of the law,
a conflict between the law and the lawmaker is, as positivism in­
deed affirms, obviously out of the question. The will of the legis­
lator may be economically unreasonable, financially disastrous,
socially inefficient and futile, and morally perverse, yet juridically
it is, if duly enacted, the law. The real problem, however, is that
of the limitations on such legislative fiats by means of the law.
Duguit vehemently rejects all identification of law with the
duly enacted will of the legislator. He protests strongly against
the tendency of the majority of German jurists to regard any en­
actment duly emanating from the legislative organ as a legal norm
before which the jurist has simply to bow and which he has to
accept without subjecting it to critical evaluation.3 Duguit in­
sists that, on the contrary, there exists a rule of law that imposes
itself upon rulers and governed alike, upon the state and its sub­
jects. He contends that this rule of law exists and is valid apart
from any intervention of the state, and that it is not the creature
of the state’s will. Yet he denies the seeming consequence that this
rule must originate in a superior principle of the metaphysical
order.4
What, then, is the nature of this rule of law? It is a social norm
which has become juridical in virtue of the fact that the mass of
individual consciences has come to understand that the material
sanction of this norm can be socially organized.5 Thus the rule
of law does not contain a moral and juridical obligation of con­
science; it is a mere indication that it will be wise for the indi­
vidual to observe the rule lest he incur the organized resentment
s Traite de droit constitutionnel (and ed., 5 vols., Paris: E. de Boccard, 1920-25), I (3rd
ed., 1927), 174 £.
* Cf. ibid., I, 97.
s Cf. ibid., I, 81, 93. Notice that Duguit says that the material sanction can be, not
ought to be, organized.
 T H E REAPPEARANCE OF N A T U R A L LA W M3
of the group. Yet it is the undeniable essence of law, of the jurid­
ical and moral norm, that it involves an imperative and binds the
conscience, as Duguit himself is forced to concede.6 Law by its
very nature places an obligation on free rational beings, irrespec­
tive of the fear of retaliation at the hands of the group or social
milieu. Yet what is it that obliges in the strict sense, and does not
merely counsel on the basis of utilitarian motives or prudential
considerations? What, in final analysis, legitimates the juridical
norm? Duguit denies that a superior norm, a real or hypothetical
basic norm, such as the natural law, which he rejects, can provide
this legitimacy. However, he concedes that “ the mass of indi­
vidual consciences does not create the juridical norm.’’ The bare
fact that such a norm is held or accepted by the mass of individuals
does not, of course, necessarily give to this norm an imperative
character which binds consciences, however much, by threat of
ruthless enforcement, it may compel people to outward con­
formity.
At this point in his argument Duguit, after the manner of
Jhering, introduces the teleological concept. The social norm is
a “ law of purpose” which governs the cooperation of the indi­
viduals who form the social group, limiting their actions and im­
posing certain acts while it leaves intact the substance of their
will.7 Thus the end or object of the norm becomes the criterion
by which acts are judged right or wrong: acts which are con­
formable to the end are right, those which are not conformable
thereto are wrong. But then the same problem recurs. For the
question inevitably arises: What ends are to be approved of as
right, or disapproved of as wrong? It appears obvious, indeed,
that not all ends actually intended by a concrete group are in­
trinsically right or good. T o this Duguit replies that social soli­
darity is the universal end. Right is what strengthens social
« Cf. ibid., II, 169 f.
1 Cf. ibid., I, 80 f.
Hi T H E N A T U R A L LAW

solidarity, wrong is what weakens it. But this criterion also is

too formalistic. How may we distinguish a state or commonwealth
from a robber band? T o attain their ends both need social soli­
darity. As St. Augustine said, “ Take away justice, and what are
realms but great robber bands?” 8 Duguit is fully aware of this
objection. Hence he adds that, besides the solidarity experienced
as necessary by the mass of individual consciences, these con­
sciences must also have a sentiment of the justice, both commuta­
tive and distributive, of that sanction.9 Thus the rule of law is
characterized by the end of social solidarity and by the justice of
the sanctions of the rule. Consequently the justice of the sanction,
not the justice of the end, would be the superior rule, the cri­
terion of the rightness or wrongness of the positive law, of what
the legislator wills. T o this rather formalized justice, to this “rule
of law” Duguit ascribed an over-all general validity for the law
of all countries and for all branches of the law, private as well
as public. They all obey the superior norm.10 At the same time,
he asserts that the spirit with which one has to approach the study
of law, of all branches of the law, is the spirit of justice. In truth,
Duguit seems to have come to the vestibule of natural law. His
next step should have been a discussion of the rightness and
wrongness of the concrete ends as measured by the objective ends
in the metaphysical order.11

The work of Duguit leads to the inevitable conclusion that

either positivism is sound— a contention which Duguit ably con­
futes— or the time-honored doctrine of natural law must be ac-
S De civitate Dei, Bk. IV, chap. 4. Cf. C. H. Mcllwain, The Growth of Political Thought
in the West from the Greeks to the End of the Middle Ages (New York: The Macmillan
Co., 193a), pp. 154-61.
9Op. cit., I, 124 f.
1 9 Cf. ibid., I, 685 f.
11 For a good exposition of Duguit’s theories of law as well as for a criticism of the
same from the inadequate standpoint of an analytical jurist, see Westel W. Willoughby,
The Ethical Basis of Political Authority (New York: The Macmillan Co., 1930), chap. 21.
Cf. also Charles G. Haines, op. cit., pp. 260-72.
 T H E REAPPEARANCE OF N A T U R A L LAW 145
cepted in order that the legitimacy of the positive law can be
founded on a superior norm of material justice, unvarying and
general. The juridical norm cannot be based on the accidental
historical fact of the will of the legislator; it must rest ultimately
on being. Oughtness and being must in final analysis coincide.
Normative oughtness must be grounded in metaphysical being.
By attacking legal positivism Duguit had, as it were in spite of
himself, to open the way to the idea of natural law.
It is true that a refutation of positivism does not lead straight
to the idea of natural law. Yet it opens the way thereto, inasmuch
as it raises the problems of the higher law, of the legitimacy of
the positive law, of the intrinsic limitations of the power and will
of the legislator. A rejection of positivism means a refusal to solve
these problems by simply referring to the psychological motiva­
tion in the subjects, a motivation that makes it wise and profitable
to comply with the demands of authority in view of the undesir­
able consequences of non-conformity. As a result, the contempo­
rary criticism of the modern concept of sovereignty must logically
turn against legal positivism and thereby break down one of the
greatest obstacles to the revival of the natural-law idea.
Numerous jurists have criticized the positivist concept of sov­
ereignty. Positivism conceives sovereignty as legal and political
power limited only by physical or psychological facts, not by the
natural and divine law. This modern concept of sovereignty,
which became particularly poisonous in combination with an
essentially materialist rationalism, was not the brain-child of Jean
Bodin. It stemmed rather from Hobbes, who allowed the idea of
natural law, which was still held by him, to disappear in the will
of the state. Bodin, on the other hand, stood for centralized state
authority against feudalist pluralism and decentralization of
political authority, but he never doubted that all such authority
is subject to and limited by natural and divine law. Therefore
the modern concept of absolute sovereignty could appear on the
i4e T H E N A T U R A L LAW

scene only after positivism (as a general philosophical trend)

had freed sovereignty from the limitations which Christian tradi­
tion and the ideas of natural and divine law had placed upon it.
These restrictions had in earlier times made Bills of Rights rela­
tively unnecessary; the modern positivist conception of sover­
eignty has rendered formal and positive declarations of human
rights a practical necessity.
For the past half-century this positivist concept of sovereignty
has been vehemently criticized. Leon Duguit, H. Krabbe, Otto
von Gierke, Hans Kelsen, and Harold J. Laski have led the at­
tack. The sovereign authority must itself be subject to the law as
a higher norm. The state, i.e., the political will-power, whether
the latter is invested in an individual or in a majority group that
can enforce conformity to its demands or to its will, is not the
source of law; that is to say, will is not the essence of law. The ir­
reducible source of law is, according to Krabbe, the sentiment
and conviction of the members of the community as to what is
law. The positive law thus becomes a mere declaratory agency
which gives expression to the law residing in the people’s con­
sciousness and sentiment of right.12
Kelsen contends that it is impossible to found a normative
oughtness upon a fact, upon being. A norm must always be
founded upon another, a higher norm. The notion of sovereignty
wrongly implies that a fact, a psychological being, the actual will
of the legislator plus his socio-psychological power of coercion,
is looked upon as the source of law or of oughtness. But every
norm must be based on and derived from another, a higher norm,
and, since this process cannot go on ad infinitum, Kelsen postu­
lates a formal basic norm or original norm. It seems that his
thoroughgoing agnosticism prevents him from anchoring his
basic norm in a fundamental being of the metaphysical order.
i* For the theories of Krabbe, cf. Westel W. Willoughby, op. cit., pp. 410 if.; Charles G.
Haines. ot>. cit., pp. 274-77.
 T H E REAPPEARANCE OF N A T U R A L LAW J 47
Hence his basic norm is a mere hypothetical construct, even if it
is not inappropriately called civitas maxima, which of course is
again a being.13
Had his agnosticism not stood in the way, Kelsen could have
attained to the idea of natural law. In this conception rational
nature, viewed in the Thomistic sense as a metaphysical being,
is the rule of oughtness for the concrete being, and essence is
the final cause of existence. Kelsen, however, does not make this
latter distinction since for him being is simply existence. Yet it
is interesting and significant that Kelsen’s view of the relation
between the positive law and the basic norm, however indistinct
the character of the latter may be in his theory, shows a similarity
of formal structure with the philosophy of natural law. But for
his agnosticism this thought structure would have led straight
to the conclusion that the basic norm must be the law of God, in
whom being and oughtness are identical and who has revealed
His law in the order of being, in the or do rerum, from which
through intuition or by discursive thinking we derive the pre­
cepts of natural law.

It is readily understandable that natural-law principles are for

the most part being applied in the spheres of social life where the
law itself is in the process of formation (e.g., social legislation,
labor laws). The new legislation may set down, for instance, the
principle of the social responsibility of the entrepreneur for his
workers or the principle of mutual fidelity governing those en­
gaged in a common business enterprise. These principles were
overlooked in an age which out of an excessive concern for indi­
vidual freedom would not allow ethical duties to be made strict
legal obligations. Yet precisely because it is law in a formative
is For a forceful criticism of Kelsen’s theory, see Erich Kaufmann, op. cit., pp. 20-35;
Herman Heller, Die Souveraenitaet, ein Beitrag zur Theorie des Staats- und Voelker-
rechts (Berlin and Leipzig: W. de Gruyter & Co., 1927); Heinrich Lenz, " Autoritaet und
Demokratie in der Staatslehre Kelsens," Schmollers Jahrbuch, L, 4, pp. 93-124.
145 T H E N A T U R A L LAW

stage, the new legislation has left undetermined the specific facts
and conditions to which and in which these principles have to be
applied. In such cases the legal determination and adjudication
of facts and conditions have been made on the basis of natural-law
concepts, by means of judicial decisions and with the help of such
formulas as “ from the nature of the case” and “ in virtue of nat­
ural equity.” Compare, e.g., what the papal social encyclicals,
following in the footsteps of tradition, call natural law and what
the courts designate from the nature of the matter as mutual legal
responsibilities, duties, and rights in the field of labor relations.
It will be found that the decisions of the courts and the demands
of the encyclicals not only have much in common but are prac­
tically identical in content.
Furthermore, the ideas of the autonomy of nation and nation­
ality in relation to the state have furnished a powerful induce­
ment to criticize positivism. These ideas were already alive in
the period before World War I, but they have since attained
great force. From the standpoint of the right of a nationality to
an autonomous life, it proved impossible to uphold the principle
that law is what the state wills; and this is true in a state composed
of a single nationality as well as in one that comprises several na­
tionalities. The special value of the nationality had of necessity
to become its special right which exists prior to the state and con­
stitutes the natural-law limit of the state’s centralized power. The
“ spirit of the nation” was at one time conjured up to do battle
with the natural law. But now the same national spirit, with its
natural-law claim to respect for its special value and therewith
for its prerogatives, is rising up against the modern central­
ized administrative state with its continually expanding control
of all domains of life. Here too, then, being has become the source
of an ought. Liberal and nationalist thought maintained the
identity of state and nation (viewed as a society of individuals).
 T H E REAPPEARANCE OF N A T U R A L LAW 149
But this identity is being exploded by an appeal to the difference
of values and thereby of the natural right of the nationality. The
omnipotent state of positivism is turning into the instrumental
order of the autonomous nation or people, whose members are
not citizens or individuals but rather families, kindred and na­
tional groups with their culture growing out of blood, native
province, and intellectual life.

International law is likewise law in process of formation. It is

in this field that the old natural law is most noticeably returning
to life. International law cannot be based solely on the mere self­
obligation of sovereign states. A positivist foundation of inter­
national law is impossible because an international lawmaker is
wanting. Consistent positivists logically deny altogether the legal
character of international law. On the other hand, Franz von
Liszt (1851-1919) asserts: “ The international legal community
rests upon the concept of the co-existence of different states with
reciprocally delimited spheres of sovereignty, with a mutually
recognized sphere of power. From this fundamental concept
[more properly, from this essential being of the state exemplified
in sundry states] follows immediately a whole series of legal norms,
by which rights and duties of states are reciprocally determined,
that need no special recognition through agreements to possess
binding force” (whose source is therefore not the will of the states
that form the union, but rather reason which derives these norms
from the nature of the international legal community). “ . . . The
rights which result from this fundamental concept are due forth­
with to each and every state as a member of the international
legal community. . . . So far as these ‘basic rights’ form the ob­
ject of special agreements between two or more states, these have
either exclusively declaratory character or it is a question of
carrying out in an individual case the principle which is self-
15c T H E N A T U R A L LAW

evident.” 14 Statements such as these could stand word for word

in a natural-law treatise of the Late Scholastics, Vittoria, Suarez,
or Bannez.
The protection of national minorities should also be men­
tioned in this connection. Since this protection ought to be the
concern of international law, and not a mere matter of municipal
law solely for reasons of internal policy within states which have
minorities, this right to protection has come as a matter of course
to be founded upon the natural-law prerogatives of national
minorities. That is, it has come to be based on rights which al­
ready had juridical existence prior not only to the purely declara­
tory positive constitutional principles of states with minorities
but also to international legislation touching the protection of
minorities. Writers of repute, like Wolzendorf, thus find it quite
natural to speak openly of the natural law governing national
minorities. If a foundation in the natural law is indispensable
wherever law is in process of formation, this is certainly true to­
day in the case of international law.

But all this does not yet, and without further ado, mean nat­
ural law. But it surely signifies one thing: There are still other
sources of law besides the positive will of the legislator. The will
of the state is not the sole source of law. Of equal importance as
a source of law, and prior to it, is the "nature of the case,” which
is synonymous with what the older writers used to call the ordo
rerum, the essential order of being. And, through the breaches
thus effected in positivism, jurisprudence is subject to continual
invasion on the part of ideas whose relationship with the old
natural law grows steadily more apparent. Frequently, to be sure,
because of the discredit into which the individualist natural law
brought it, the old natural law goes under such designations as
1 * Das Voelkerrecht systematiseh dargestellt (10th rev. ed., Berlin: Verlag von Julius
Springer, 1915), p. 65.
 T H E REAPPEARANCE OF N A T U R A L LAW 151
“ sentiment of right,” “ a priori foundations of law,” “ consistent
cultural norms.”
In 1925, Niemeyer published in his review, Niemeyers Zeit-
schrift fuer Internationales Recht, the results of a questionnaire
submitted to a representative group of professors of international
law and jurists. These had been asked whether Grotius’ theory
of natural law (whose close connection with tradition has been
pointed out) has validity today for the interpretation and comple­
tion of the positive international law, which rests upon the legal
will and consent of states, so that international and national courts
as well as arbitration tribunals ought to follow the principles of
this theory. Of the forty-one best-known teachers of international
law and jurists who replied to the query, fourteen answered with
a flat “ yes” and only eleven professed positivists gave a negative
answer; the remaining sixteen adopted, it is true, a neutral posi­
tion with respect to the natural law, but, on the other hand, they
did not declare in favor of positivism. Of the last group one, for
instance, rejected Wolff’s conception of natural law, but he de­
manded that the judge effect just settlement of matters in dispute;
another declared that positivism is impossible, that it has now
passed its peak, and that international law may not be torn from
its ethical roots; a third affirmed that Christian morality, as the
native soil of the natural law, must have force even in interna­
tional law.15
Many signs, therefore, point unmistakably to a renascence of
natural law. Such renascence, moreover, concerns the meta­
physical natural law, the ius naturale perenne, not the individual­
ist natural law. It has coincided with a return to a doctrine of
material values in ethics, and with a return to metaphysics in
philosophy. This recent revival of the natural law is a fresh proof
of its perpetual recurrence.
is For a rather full account of the results of Niemeyer’s questionnaire, see Charles G.
Haines, op. cit., pp. 294-300.
>55 T H E N A T U R A L LA W

Despite appearances, the rise and spread of contemporary to­

talitarianism do not invalidate the contention that a distinct re­
vival of natural law is occurring today. Modern totalitarianism is
an end product; it is not the opening period of a new era. It is in­
deed the final outcome of positivism as a general philosophy, as
an intellectual atmosphere, as a scientific method raised to the
level of the absolute and divine. The position that law is will
has come to mean that the human will is freed from all universal
ideas, from any objective moral order beyond class interests, be­
yond nationalist or racial programs, beyond economic considera­
tions, beyond unlimited evolutionary progress. But modern
totalitarianism has provided the reductio ad absurdum of the
axiom, Voluntas facit legem; indeed, it has revitalized in its vic­
tims and adversaries the idea of natural law. For resistance to
totalitarianism, in which the end results of positivism appear as
ethical and intellectual nihilism, had to look for support beyond
any mere national tradition or status quo ante and base itself on
something superior to history, race, class, scientific method, and
the like.
In the first place, the nationalist form of totalitarianism arose
and flourished most in the two countries where juridical and
moral positivism had obtained a dominant position in the uni­
versities, in the legal profession, and in the official philosophies
of law which conditioned or determined the outlook and practice
of courts and government. For in Italy and Germany, more than
anywhere else, positivism had filled the void created by the dis­
solution of the idealistic philosophies of the nineteenth century.
In the eyes of this juridical positivism the mythical will of the
state, formally established in accordance with constitutional
norms, was the sole, exclusive, and sufficient source and founda
tion of law. When, therefore, the totalitarian revolutions had
succeeded by formally legal methods, whence could a positivist,
whether judge or jurist, derive a critical norm that would enable
 T H E REAPPEARANCE OF N A T U R A L LAW J53
him to pass judgment on the legitimacy of the legally correct
totalitarian revolution? Or how could a positivist determine the
intrinsic injustice of a formally legal act of the now totalitarian
government? An appeal to former legal traditions, to juridical
ideas that formerly were commonly accepted, could be of no
avail since, according to positivism, these possessed validity only
because they had been the then will of the state. Any criticism of,
or resistance to, totalitarianism had consequently to find a deeper
juridical basis of criticism or resistance than the mere actual will
of the state formulated with legal correctness and enforced with
an irresistible power. Is it far-fetched to contend that the pre­
dominance of positivism among judges, high government officials,
and teachers of jurisprudence robbed them of any juridical sup­
port against the will of the now totalitarian state?
It is worth observing in this connection that the resistance which
Catholicism has offered to totalitarianism and its pseudoreligious
political creeds is not based exclusively on dogmatic theology but
above all on natural law. Nathaniel Micklem has rightly pointed
o u t16 that the Confessional (Protestant) Church in Germany,
under the influence of Barthian theology, which rejects a natural
theology and with it the idea of natural law, has had a less ad­
vantageous basis for its resistance to Hitlerism, whereas the Catho­
lics have had the natural-law doctrine to lean on in addition to
their religious principles.
It is further deserving of mention that totalitarian propaganda,
aware of the recent revival of natural-law thinking, has abused the
term “ natural law.” Such abuse of revered terms is indeed typical
of totalitarianism: witness today the sorry abuse of the term “ de­
mocracy” at the hands of totalitarian leftist regimes. As if out of
reverence for them, terms like “ natural law” and “ natural rights
of the nation” have been frequently used in propaganda and even
14 National Socialism and the Roman Catholic Church (New York: Oxford University
Press, 1939).
154 T H E N A T U R A L LAW

in serious books.11 But it is quite evident that the term “ natural”

has here undergone an even more wanton disfigurement than it
suffered at the hands of Hobbes, Hume, or the utilitarians. “ Na­
ture” no longer refers to the rational nature of each individual
man or to man’s endowments of intellect and free will, on which
rest the dignity, liberty, and initiative of the individual person; 18
nor does it refer to the universal order of being and oughtness,
to the transcendent reality of reason. On the contrary, nature is
transformed into an altogether materialistic concept. It is viewed
as the blood, the hereditary biological mass of animal nature,
deprived of its personalist and spiritual values. Thus meta­
morphosed, the law of nature has but one principle: Right is
what profits the German folk-community—just as a deformed
proletarian natural law would yield the single principle: Right is
what profits the proletariat. This vicious alteration of the mean­
ing of the terms “ nature” and “ natural” makes it possible for
Huber on one page to abuse the venerable terms in the interest
of the blood-and-race ideology and on another to maintain that
“ there are no personal liberties of the individual which fall out­
side the realm of the state and which must be respected by the
state. . . . The constitution of the Reich is not based upon a sys­
tem of inborn and inalienable rights of the individual.” 19
As a consequence the internal and external opponents of
totalitarianism have had to base their defense and their criti­
cism on the perennial idea of natural law as it has been pre­
served in the philosophia perennis, in common sense, and in the
juridical tradition of Western civilization. Moreover, they have
had to take this stand in spite of and against the prevailing evolu­
tionary materialism, philosophical positivism, or the refined his­
torical materialism of the Neo-Marxist and pragmatist schools of
17 Cf. Ernst R. Huber, Verfassungsrecht des Grossdeutschen Reiches (Hamburg:
Hanseatische Verlag, 1939), pp. 194 ff.
is Cf. St. Thomas, De potentia, q.q, a.K.
is Op. cit., p. 361.
 T H E REAPPEARANCE OF N A T U R A L LAW 155
thought. Thus the natural-law doctrine became willy-nilly the
ideological basis of the struggle against totalitarianism. Totali­
tarian regimes are in their very nature the ultimate consequences
of the positivist denial of natural law, i.e., of a transcendental and
universal moral and juridical order valid for all nations, races,
classes, and individuals, of an a priori for all legal institutions
and for any will of the state. The growth of totalitarian regimes,
far from checking or reversing the revival of natural law, has on
the contrary contributed mightily to this revival in ever wider
circles. For totalitarianism has opened the eyes of more and more
thinking people to the ultimate consequences to which the denial
of the natural law must lead. Such consequences were not obvious
or clearly predictable so long as modern society, though infected
with positivism, continued to live on, beguiled by an optimistic
faith in an inevitable and automatic evolutionary progress and un­
der the protection of a constitutional form of government which
was still feeding on an inherited Christian substance. People and
their leaders were therefore not yet sufficiently aware of the depths
of evil and perversion to which the evolutionary product, man,
supposedly determined by blood or mere economic conditions,
could sink, if once the age-old moral and intellectual molds and
floodgates were shattered.
In the next place, totalitarianism and the struggle against it
have also brought to light the weakness of a more refined form of
juridical positivism. This subtle form of juridical positivism
(sometimes referred to as juristic monism or analytical juris­
prudence), though it does not deny the absolute character of the
moral law, maintains that legally the state can do anything, since
positive law as the will of the state does not find a legal limit in the
moral law. Juridically, it holds, there exists only the self­
limitation of the state’s will. But this contention rests on an illicit
separation of positive law from its matrix, the natural law, which
is simultaneously ethical and juridical. The Kantian separation
i 5« T H E N A T U R A L LAW

of morality and legality, which was a reaction to Hobbes’ effort

to identify morality and legality, may underlie this position. Yet
the consequences are the same.
The formula according to which the state can legally do any­
thing (which recalls the description of the emperor as lex animata
in Late Roman jurisprudence) appears to be equivocal. If by the
phrase “ can do legally” is meant that the state, i.e., the persons
in authority or holding power, controlling the legislative organ
and the enforcement machinery of a totalitarian regime, can
declare anything law and can by physical force and psychological
threat compel subjects to active obedience or at least to passive
conformity, then this is merely a statement of experimentally
verified fact. Totalitarianism has indeed proved how far a modern
tyrannical regime can legally go in declaring lawful any act which
it deems advantageous to its arbitrary aims, from the suppression
of religious freedom to the shooting of guiltless hostages and the
killing of innocent persons in the interest of scientific research or
of purity of the racial stock. By applying all the means at the dis­
posal of the modern state with its intricate compulsory mech­
anism (propaganda, terror, fear, indoctrination and control
of economic life), the totalitarian state is comparatively or even
practically certain of the obedience and conformity of its sub­
jects. For the life and fortune of these would be at stake should
they fail to conform. In addition, the totalitarian state will al­
ways find, among the citizens, individuals who by reason of in­
doctrination, perversion, or brutalization will serve as its agents
and actively compel all others to conform.
But this actual fact of being able legally to do anything or of
being able to declare any act lawful is not the real problem. Ac­
tually, when we use the term “ can” we mean “ may.” We have in
mind the moral problem: How far is the state permitted to go?
By “ state” we here mean the persons who have at their disposal
the means of compelling conformity of the citizens and active
 T H E REAPPEARANCE OF N A T U R A L LAW 157
obedience of the law-enforcing agencies to their commands, duly
declared legal or lawful. The problem is thus whether resistance
to the state on the part of the citizens and refusal to obey on the
part of the executive organs become lawful if the commands
clothed with legality go beyond the line which separates licit and
illicit use of legal power, of the legal “ can.” It seems clear that
the question cannot be solved by saying that the line is where
the state is certain to find open and violent resistance and insur­
mountable mass disobedience. For this is a matter of mere psy­
chological fact or experiment; it is a matter of expediency. An
answer is possible only if a paramount law is acknowledged that
serves as a measure and critical norm both for acts which are
formally declared legal and for the lawfulness of resistance and
disobedience. Furthermore, what is to be said of the execution of
orders of superiors, orders which in a totalitarian state are in­
dubitably lawful inasmuch as the will of the state is always lawful?
Is the minor war criminal, who hides behind the lawful orders
of the supreme war lord as head of the state, free from moral and
legal responsibility for execution of a lawful act of his superior,
of an act that is obviously in conflict with natural law and reason
though not with the laws of his state?
T o put these questions is to answer them. “ Every positive law,
from whatever lawgiver it may come, can be examined as to its
moral implications, and consequently as to its moral authority
to bind in conscience, in the light of the commandments of the
natural law.” 20 It is inadmissible to separate the legal “ can” and
the moral “ may,” the formal legality of the positive law and its
material morality (the agreement or disagreement of the positive
law and its material morality, i.e., the agreement or disagreement
of the positive law with the natural law). Totalitarianism has
merely verified once more the profound wisdom of St. Augus-
20 Piux X I, Encyclical Mit brennender Sorge (1937), cited by Michael Oakeshott, The
Social and Political Doctrines 0/ Contemporary Europe (Cambridge': Cambridge Uni'
versity Press, 1939), pp. 53 f.
>5* T H E N A T U R A L LAW

tine’s dictum: “ Take away justice, and what are realms but great
robber bands?” 21 The natural law binds all men collectively and
each one separately: the sovereign lawmaker, the executive or
administrative official, the judge or juror, the citizen and subject.
Duguit as well as the Roman jurists had a higher opinion of the
jurist’s office and function than merely to bow before all acts of
the state clothed in due legal forms.
T o repeat, such theories as this can flourish only so long as
their sociological and political presuppositions prevail: a con­
sciousness of political unity in spite of a pluralism of groups; free
associations in religious, economic, and cultural life; a limited
sovereignty under an unquestioned constitution which includes
a bill of rights, some division of powers, a procedure to protect
officials against arbitrary acts of repression on the part of their
superiors, and, above all, a truly independent judiciary. As soon
as these institutions are suppressed de facto or de jure by totali­
tarian regimes, the weakness of this subtlest form of juridical
positivism and the necessity of a moral basis for positive law ap­
pear with unmistakable clarity and force.
21 De civitate Dei, Bk. IV, chap. 4.
 P art T wo

PH ILO SO PH Y AND C O N T E N T OF T H E
N A T U R A L LAW
 CHAPTER VIII

Being and Oughtness

T hehistory of the natural-law idea shows that there are many

ways of clothing any system of ideal law with the appeal of the
natural or the rational. In periods when the positive law, grown
rigid, is no longer the order of justice that people believe in,
but rather a means in the struggle of the ruling class to maintain
its social and political power which can no longer be justified in
the name of the general welfare, revolutionary and reforming
groups, unwilling or unable to appeal to the “ good old law,” have
to appeal to the natural law. On such occasions, however, the
natural law all too readily appears as something impure, as al­
most inextricably entangled with juridical demands arising from
the concrete sociological situation: demands whose bases are not
solid from every point of view, whose support lies in passion
rather than in reason.
Yet one point history does make clear. The idea of natural law
obtains general acceptance only in the periods when metaphysics,
queen of the sciences, is dominant. It recedes or suffers an eclipse,
on the other hand, when being (not taken here in Kelsen’s sense
of mere existentiality or factuality) and oughtness, morality and
law, are separated, when the essences of things and their onto­
logical order are viewed as unknowable.
The natural law, consequently, depends on the science of be­
ing, on metaphysics. Hence every attempt to establish the natural
law must start from the fundamental relation of being and ought­
ness, of the real and the good. Since the establishment of the nat­
ural law further depends upon the doctrine of man’s nature, this
161
16s T H E N A T U R A L LAW

human element has also to be studied, especially inasmuch as the

question of the primacy of intellect or will in man is related to
being and oughtness. In the next place, justness, or right as the
object of justice, needs to be considered if we are to grasp the dis­
tinction between lex naturalis and ius naturale. A brief survey
of the order of the sciences will thereafter be in place. Only then,
finally, will it be worth while to go into the details of the natural
law, in order to explain, from the theoretical side as well, the
actual historical fact of the perpetual recurrence of the natural
law.1

If moral philosophy and, in moral philosophy and with it, legal

philosophy are to have a solid foundation, they must be a con­
tinuation of metaphysics. At least this is true of a natural system
of ethics and jurisprudence, though not of a positivist one which
is grounded only in a will as such. In this connection “ being” does
not denote simple existence, the imperfect form of being. It means
essential being, the esse essentiae. Kelsen, who repeatedly asserts
that oughtness has nothing to do with being, with the factual, and
that the science of law must be constructed in a purely normo-
logical fashion, has not heeded this distinction which is basic for
the metaphysics of realism. His rationalism, therefore, leads him
to a theory of law devoid of contents and constructed apart from
1 In his otherwise valuable study, The Revival of Natural Law Concepts, Charles G.
Haines resolutely forgoes dealing "with the philosophical and psychological processes
which underlie natural law thinking” (p. viii). Yet this self-imposed limitation, psycho­
logically very difficult if not impossible of observance, does not prevent the author from
freely criticizing and evaluating the natural-law doctrine in its various forms—which
only an epistemology and a metaphysics would rightly allow him to do. E.g., the exposi­
tion of natural law by Viktor Cathrein, S.J., is unjustly but altogether typically taxed with
being religious and supernatural (pp. s86 f.). This merely means, of course, that the
thinking of the Jesuit moral philosopher is theistic and not utterly secularist, does not
view nature as a self-subsisting, closed whole, and does not eschew ultimates so far as
they are attainable by the natural powers of the human mind. Benjamin F. Wright, Jr.,
is similarly unphilosophical-minded. He concludes his volume, American Interpretations
of Natural Law, with the words: "Natural law, in its essence, is the attempt to solve the
insolvable” (p. 345). But such a conclusion stands or falls with its particular frame of
reference, characterized by metaphysicophobia.
 BEING AND OUGHTNESS 163

the factual, the existent. Yet since his atheistic relativism pre­
vents him from acknowledging with Occam a supreme omnip­
otent will of God as the source of all norms, Kelsen’s rationalism
ends by bringing him to the position that factual reality is indeed
the ultimate, primordial norm, that is, the existence of the order
of the civitas maxima, the factually existing world legal order.
But this position is downright paradoxical in view of his ideal of
a science of pure, normative law built upon the unbridgeable
opposition between being and oughtness. Thus for Kelsen, pre­
cisely because he lacks Occam’s supreme will which lays down
the positive norm, existence and oughtness ultimately coincide.
Thus he arrives at an extreme empiricism. Had he had a meta­
physics, the doctrine of essential being, he would have avoided
this contradiction.
For being and oughtness must in final analysis coincide. Or to
express it differently, being and goodness, the ontological and
deontological or moral orders must at bottom and ultimately be
one.

Accordingly, the first prerequisite of an unalterable, perma­

nent, standard natural law is the possibility of a knowledge of
being, of a knowledge of the essences of things; in other words, a
realistic epistemology or theory of knowledge. For Pufendorf,
Kant, and others, who have no realistic epistemology, not being
but some impulse or other, a special property like sociality or a
postulate of practical reason like freedom, is the source of ought­
ness, the principle of ethics and of natural law. Deductive reason
is thereby freed from control by reality and consistently indulges
in an increasingly hollow rationalism which, to be meaningful,
borrows continually from the actual political and sociological
ideals of the age. Natural law in the strict sense is therefore pos­
sible only on the basis of a true knowledge of the essences of
things, for therein lies its ontological support.
164 T H E N A T U R A L LAW

Thomistic philosophy lays the foundation of the natural law

in the following manner: Man perceives individual things
through the imagination and the senses, and he is thus able to
apply the universal knowledge which is in the intellect to the
particular thing; for, properly speaking, it is neither the intellect
nor the senses that perceive: it is man who understands by means
of both. The intellect alone does not understand; that is to say,
objective reality or the things of the external world do not release
in the soul ideas of things which are already innate. Nor do the
senses alone perceive: it is not individual things alone that exist,
and the concepts of essences, which the intellect forms in a quasi­
authoritarian manner from motives of economy of thought, are
not without foundation in reality, as both nominalism and sens-
ism maintain. Again, it is not the intellect alone that under­
stands, as rationalism pretended when it placed the conditions
and the measure of knowledge in the intellect as subjective forms
of the latter, and when it failed to make things or reality the
measure and condition of knowledge. As a result, the deductive
intellect, for which the essences in real things remain unknow­
able, can no longer control itself by reference to reality. But man
understands by means of senses and intellect. Consequently,
through intellectual activity he knows the essences from the
things. Things in their reality, i.e., that which actually is, are
the measure of knowledge. The entire domain of that which is
(and is therefore knowable) in the context of the first principles
and ultimate particulars constitutes the intellect’s field of in­
vestigation.
The things themselves are the cause and measure of our knowl­
edge. The speculative intellect is moved by the things themselves,
and thus the things are its measure. The being of the thing is the
measure of truth. We constantly meet with these and similar
propositions in the writings of St. Thomas. It further follows
that there is nothing in the intellect that has not first been in the
 BEING AND OUGHTNESS 165

senses.2 For the senses are the gateway through which things or
reality pass, according to the mode of the intellect, into the lat­
ter’s immaterial possession. But the senses always portray only
the particular. Phantasms, the images of things, transmitted by
the senses constitute material for the intellect, and this material
has to be transformed from sense perception into intellectual
knowledge. Knowledge, however, is the apprehension of essences.
A thing is not known through the senses, but through the intel­
lect with the aid of the senses, since the intellect apprehends or
takes into itself the thing in its essence, in that which it is. At
first, then, the intellect is passive. Reality exists prior to the intel­
lect. The mental image is a copy whose original is the seal. This
real, moreover, presupposes for its actuality only God the Crea­
tor, the first creative intellect, who as the All-actual and A ll­
operative gives things their measure. But reality is independent
of its being thought of or noticed by the finite intellect. It exists
whether or not the finite intellect thinks of it.
The human mind is at first passive, receptive, open. It is not,
however, as though the intellect were affected by the senses and,
looking into itself, perceives innate ideas released through sense
impressions. Nor is it as though there were in the intellect a
thought-mechanism which now in accordance with subjective
conditions works the images into ideas, independently of the
being of the thing represented. On the contrary, the human mind
is able to understand only by remaining in contact with reality:
by continually adjusting its knowledge to reality. For true cogni­
tion is the agreement of the thing as known with the object of
knowledge, the thing itself. Or, according to the recent way of
stating the matter, it is the agreement of the assertion expressed
in the judgment with the actual reality, of the logical with onto-
2 It is amazing how frequently this fundamental proposition of Aristotelian and scho­
lastic epistemology, n ih il est in intellectu qu o d p riu s non fu erit in sensu , is described
as John Locke’s contribution to psychology. Locke’s sole claim to fame on this point is
to have emphasized this axiom against Descartes’ doctrine of innate ideas.
166 T H E N A T U R A L LAW

logical truth, of the intellectual equation with a real equality.

Hence the great importance of experience, the incessant self-
orientation toward reality which is the norm of thought. Con­
tinual experience of reality, not a sort of geometrical deduction
from a principle, is the adequate method. This is all the more
important, too, the farther thought wishes to proceed with its
deduction. St. Thomas himself requires experience in particular
for moral philosophy and the science of law. Not doctrine, but
experience over a long period of time proves the goodness of a
law. The difference between realism and an empiricism that
glories in experience does not, consequently, lie in the preference
of empiricism for experience (induction) whereas realism, so to
say, prefers speculation (deduction). The difference consists rather
in the fact that empiricism remains content with what is in the
foreground, with actual reality, whereas realism, with its delight
in knowledge, holds it to be both possible and necessary to push
beyond the cheerfully affirmed actuality to that which is in the
background, to the metaphysical, to the essences and their laws
of being in the actual facts.

The object of rational knowledge or cognition is therefore not

the particular or the individual as such; this the senses lay hold
of. The object of cognition, what judgments assert of the indi­
vidual thing in the predicate, is what the thing is: the essence of
the thing which lies hidden in the core of phenomena as an idea
in every thing of the same kind; in a word, the form. The intellect
does not attain to the core of the being by way of intuition, by
the immediate contemplation of the being, but by way of abstrac­
tion. This brings us to the famous dispute over universals and to
the distinction, basic for the possibility of all metaphysics, be­
tween essence (quiddity, whatness) and existence (haecceity,
thisness).
Sense perception grasps only the particularity of the existent
 BEING AND OUGHTNESS 16 7

being, of the individual thing, as, e.g., this man or this concrete
state. But cognition is founded on the perception of the univer­
sal, of that which is in all things of the same kind as their quid­
dity or essence. The thing is that which the abstract concept of
the thing, the object of intellectual knowledge, represents, signi­
fies, means; and this object of intellectual knowledge is really in
the thing. Being belongs to a nature, e.g., to the nature of a stone,
in a twofold manner: existential being, so far as the nature is in
this stone and that one, which it therefore possesses in the indi­
vidual thing; and intentional or mental being, which the nature
attains in the individual intellect, in mine and in yours, so far
as it is thought of by us. But the nature becomes universal and
hence representative of the essence, the quiddity of the thing,
when it is abstracted, as St. Thomas says, ab utroque esse, when it
is viewed apart from existence in things of the external world as
well as from existence in the thought of some intellect. It is this
nature, considered absolutely and in itself, which is predicated of
all individuals as their quiddity, their form, their essence, their
nature.
The universals are not substances.8 They do not live in a
heavenly region, nor does the soul, affected by sense impressions,
remember them from its premundane sojourn in that region, as
Plato held. Nor are they mere names or vocal utterances (flatus
vocis) which, lacking a foundation in reality, were arbitrarily de­
vised by human agreement for the purpose of bringing order into
the welter and chaos of sense impressions; hence they are not
arbitrary products of the human intellect or of the human will.
Finally, neither are they types derived by a process of pure induc­
tion from individual things: certain uniformities which lead only
to an empirically probable general validity, so far as our experi­
ence has gone. On this distinction rests that of existence and es-
8 I.e., not primary substances in the Platonic sense. See, e.g., K. F. Reinhardt, op. cit.,
P- 43-
i6£ T H E N A T U R A L LAW

sence; upon it also is founded teleological thinking as well as the

unity of being and oughtness in the metaphysical order.
This essence in the thing is the measure of our knowing. It is
the universal predicate in the judgment which establishes the
truth of our knowledge. For a judgment does not say that the
abstract concept in my mind is the thing, but that the objective
content, which is independent of the mere fact that I am think­
ing of it, of the abstract concept is perceived by me in the indi­
vidual. For example, a state in itself does not exist. Concrete states
alone exist. But a social unit, a territorial corporation, I call a
state because and so far as it is a realization of the idea “ state.”
Accordingly the intellect alone does not know, nor do the senses
alone know, but man knows by means of both.
T o be sure, as has been stated, things as bearers of essence can
be the measure of our knowledge only because they themselves
in turn receive measure from the supreme creative intellect of
God, who measures all things with wisdom. The divine reason by
thinking creates the essence of things. The divine will brings
them into existence either immediately as first cause or indirectly
through secondary causes. This is basic for the possibility of the
natural law, because it means that the essential forms are not de­
pendent in their quiddity on the absolute will of the almighty
Spirit, but only in their existence. The essential forms of things
are unalterable because they are ideas of the immutable God.
Occam’s question of whether God must be able to will that His
rational creatures hate Him is the foundation for his moral posi­
tivism. Conversely, the doctrine of the immutability of the nat­
ural law, of the natural goodness of certain moral actions that
follows from the nature of things, has meaning only if the un­
changeableness of essences is acknowledged. These lines of
thought are of importance because the principle that law is posi­
tively something pertaining to reason and not mere arbitrary
will depends upon this realistic epistemology. This is also shown
 BEING AND OUGHTNESS 169

indirectly by the fact that the principle that law is arbitrary will
(auctoritas facit legem, and other equivalent formulas) is founded
upon a nominalist or purely empiricist theory of knowledge.

The principle that being and truth coincide is a further conse­

quence of the foregoing considerations. Intellect and reality stand
in a threefold relationship to each other. From the viewpoint of
the intellect we speak of knowing, of the thing, of the real, of
being knowm, and the unity of both is called truth. T o know a
thing, however, means to apprehend or assimilate the essence of
the thing or its form. In contrast to creatures which lack cogni­
tion, the intellect is capable of having, and even of becoming,
the form of another (every created) thing. The knowing mind is
in a certain manner everything. Knowledge is possession of forms.
“ The intellect in act is wholly, i.e., perfectly, the thing under­
stood.” 4 The attainment of the abstract concept, of the universal,
whose content is the essence, is the function of the active intel­
lect. The latter gathers from the real, which is given in the mental
image of the sense impressions, the immaterial essential core, in­
telligible being itself, which however is identical with the nat­
ural being in the real. Hence a being, so far as it is intelligible, is
also true. All that is is true, because it is knowable.
But the essence (form) which constitutes the real thing in its
being is also the end, the final cause, of the thing. The Aristotelian-
Thomistic theory of knowledge starts essentially from the actual
fact of motion, of self-change or of being changed, in short, from
the attempt to comprehend becoming. Thence came the distinc­
tion between an inner, enduring core, the form, and a changeable
element, the matter, that which is formed or molded in every ma­
terial thing. The prototype of such thinking is the creative ac­
tivity of the artist, who fashions the form out of the material or
* St. Thomas, Quaestiones duodecim quodlibetales, VII, art. 2. Cf. also Joseph Pieper,
Die Wirklichkeit und das Gute (Leipzig: Jakob Hegner, 1935), pp. 31 ft.
17c T H E N A T U R A L LAW

matter, as well as organic growth in the realm of animate nature,

as in the case of plants: in seeds the incorporeal form, acting after
the manner of an entelechy, unfolds itself in the matter. The
form is not only the proximate efficient cause of the thing; it is
also its end. All beings aim at, strive after, desire, their own perfec­
tion. But goodness is that which all things aim at, strive after,
desire, since the essence of goodness consists in this, that it is in
some way desirable. Therefore perfection and whatever leads to
it are good.5 Becoming, the proper condition of all created being,
is the way to perfection, to fullness of being. Hence the more
perfectly a created being becomes its essence, and the more its
thisness approaches its quiddity, the more does the essence over­
come the imperfection in the existence. In God, the most perfect
Being, essence and existence are consequently identical. God is
pure Act; He is absolute, most perfect Being. The creature, how­
ever, is its quiddity in an imperfect manner only; yet it is in­
tended to become this quiddity, to realize its idea. Becoming is
the condition of the creature; being is the nature of God. The full
realization of its nature, of the idea, is the end or goal of a thing,
ever greater realization of the quiddity in existence. This holds
true of inanimate nature, so far as it is moved from without, as the
artist fashions more and more perfectly the form of the statue out
of the material. But it also holds good of animate nature, which
in the process of becoming realizes more and more perfectly the
form which is germinally present in it. Whence the axioms: every
being, as being, is good; being, truth, and goodness are con­
vertible.
Let us take an example or two. The so-called marriage that
legally existed for a while in Soviet Russia was rejected by the
more or less Christian West because it was not distinguishable
from concubinage. But this position did not rest on a comparison
• Cf. St. Thomas, Summa theologica, la, q.5, a. 1.
 BEING AND OUGHTNESS 171

of the Soviet view of marriage with the marriage law of the

French Civil Code, or with the matrimonium of Roman law, or
with the marriage legislation of Germany or of the Anglo-Saxon
countries. It was based upon a measurement by the idea of mar­
riage which is expressed and exemplified in the positive legal
institutions of these codes. We speak of the imperfection of a
piece of marriage legislation by measuring it against the idea of
marriage. Moreover, in the history of marriage legislation we dis­
tinguish stages according as the positive, historical, legal forms
realize the idea of marriage in a more or less perfect manner.
Again, a territorial corporation or a tribe does not become a
state by the fact that international bodies or other states recognize
it, as though international recognition were constitutive of right.
No; this recognition takes place, and the territorial corporation
has a right to this recognition, because an actual case is present
which realizes, however imperfectly, the idea of state; in this way
a state can become known, and it thereupon has a right to formal
recognition. The basis of the obligation to recognize this state lies
in the degree in which the idea of state is realized. Incidentally,
the school of comparative law leaves us unsatisfied because, for
fear of natural law, which nevertheless makes its appearance, it
avoids taking the final step to the nature, to the idea, of legal in­
stitutions. Its work thereby becomes interesting, instructive, in­
formative. But it enters only the vestibule of the philosophy of
law, where its skepticism detains it.

The teleological conception, grounded in the metaphysics of

being, is therefore the basis of the essential unity of being and
oughtness, of being and goodness. The entire past had to be for­
gotten before the theory of pure law, the normological school,
could maintain that being has nothing in common with ought­
ness. It was right when it was unwilling that empirical existence
17s T H E N A T U R A L LAW

should be regarded as a root of oughtness. The factual cannot be­

come right in virtue of mere factuality. There is no factuality of
right. A basis of right exists only when in something factual an
essential being is striving for realization. Right can never arise
from a violation of right. Yet even laws of an illegitimate ruler
can bind in conscience, not in virtue of the illegitimate power,
but by reason of the actual fact of the common good realized
through the laws, irrespective of their factual source, and so far
as they realize it. The distinction between essence and existence
would have preserved from its antimetaphysical formalism the
theory of pure law, whose criticism of the thesis that the fact
creates right is so effective. It would likewise have saved it from
its ultimate relapse into the thesis of the factuality of right in the
case of the civitas maxima or great society.
The essence of a thing is the norm and the goal of its becom­
ing. But the creature is always in the state of becoming or de­
velopment, whether toward the goal, toward goodness, or away
from the goal, toward evil, that is, toward the lack of being. But
goodness is the final embodiment or realization of the essence in
existence, of the tendency of the existent being toward its essence.
The fullness of being is the goal. Every being (everything that is
real) tends naturally to become its essence, to realize its idea. But
that toward which a nature has always an essential bent is a good;
for it is an inclination toward perfection. Every real thing moves
toward its essence. The perfection of being is the end, the good,
the essence. Fullness of being is the real in the repose of the goal
of becoming, of self-movement, or of motion from without.6
Thus in the essence lies the norm, the end or goal is in the
quiddity, and the good is the full being. Therefore all that is, so
far as it is real being, is good. But since the good also ought to
• See in particular Gustaf J. Gustafson, S.S., The Theory of Natural Appetency in the
Philosophy of St. Thomas, pp. 68-90, and, for an excellent psychological analysis of ap­
petency on the sensuous ana rational levels, Celestine N. Bittle, O.F.M. Cap., The Whole
Man, pp. 242-46, 354-59.
 BEING AND OUGHTNESS 173

be, it follows that in the domain of metaphysics being and ought-

ness coincide.

These ideas lead further to the conception of an order of

reality, that is, according to the degree of being which things pos­
sess. This order rises from purely potential being which is not
yet real through the stages of created actual being with a greater
and greater content of being and with less and less mere po­
tentiality. It mounts from the inanimate creation through the
world of animate beings to the living rational being that is man
as the norm of creation. It culminates in God, the most perfect
Being, who is both infinitely superior to the whole of creation
and essentially different from it. In God all distinctions between
being and becoming, motion and immovableness, potency and act,
essence and existence, become meaningless. For God is purest
Being, purest Act, unmoved Mover of all things, and therefore
most perfect Goodness, deepest Truth, ultimate Norm and high­
est End, in whom there is no distinction between essence and
existence. Hence God as the supreme Good is also the goal of all
created being, as indeed the latter is being solely in virtue of its
participation in the divine Being, although merely in an im­
proper, analogical sense. God is the final end of all human life
and activity. His glory is the goal of creation.
The world is order. The order of creatures according to the
differentiation of their natures and their gradations proceeds
from God’s wisdom. Chance is not the origin of things, nor is the
world a chaos into which our intelligence had to bring order.
The law of order corresponds to God’s wisdom, which first con­
ceived it in idea prior to God’s will calling it into existence. This
order is therefore an order in accordance with the essence of God.
Whatever is real is an imperfect exemplification of the ideas of
God which are embodied in things. Man recognizes this order as
directed to one final end, to God Himself, who at one and the
>74 T H E N A T U R A L LAW

same time is origin and end of the order. For the rational creature
endowed with free will, who cooperates in shaping the world, the
order of being thus becomes an order of ends, culminating in the
final and highest end, the glory of God.T
7A brief but clear treatment of the important concept of God’s eternal glory, funda­
mental and formal, as the end or purpose of the created universe (so frequently misun­
derstood) will be found in John F. McCormick, S.J., Scholastic Metaphysics. Part II,
Natural Theology (Chicago: Loyola University Press, 1931), pp. 201-05; Ignatius W. Cox,
S.J., Liberty—Its Use and Abuse (g vols., New York: Fordham University Press, 1936-37),
I, 9-11.
 CHAPTER IX

Intellect and JVill

T heorder perceived by reflective thought is not, however, a

rigid, static order of motionless things. It is not external com­
pulsion, a clocklike mechanism which, once wound, runs accord­
ing to mechanical laws. The order conforms to the natures of
the things. It is indeed an order of necessity for inanimate as
well as for living but irrational creatures. But it is an order of
freedom, a moral order, for beings endowed with reason and free
will. Therefore, so far as man perceives that he is a creature pos­
sessed of free will who is not subject to blind necessity but to the
law of freedom, he also perceives that this order, in accordance
with God’s will, ought to be. The ontological order becomes, in
relation to man endowed with free will, the moral order. The
order of being confronting the intelligence becomes the order of
oughtness for the will. Since, therefore, from knowledge of the
essences of things the order is perceived as established by God
in conformity with His essence, this order necessarily appears to
the will of the rational and free creature as likewise an order to
be attained and preserved and as a norm of the finite will. But this
order is naturally and really “ given.” It is not projected by hu­
man reason, in keeping with subjective, regulative forms, into an
external world which in itself is unrecognizable as order. It is
objective order, independent both of our thought and of its be­
ing thought of here and now.
In its essence this order is established by God’s wisdom; in its
existence it has proceeded from God’s will. In its meaning and
end it is again directed to God, the highest end. Teleologically
175
»7« T H E N A T U R A L LAW

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

It has already been shown how in moral philosophy this thesis

of the will as the nobler faculty led, and had to lead, through Duns
Scotus to Occam, i.e., to the most one-sided moral positivism, for
the doctrine of the will as the nobler faculty is itself the root of
nominalism. But nominalism, directed only to the individual,
particular thisness, to the existence which is related to the will,
arrives in its extreme forms at the denial of the clear and distinct
knowability of the essences of things, of the essence which is
related to the intellect. The universals are but vocal utterances.
Reality, since in its quiddity it is not unmistakably knowable for
us, is likewise not the measure of our knowledge. The order of
being cannot of itself become a norm of the will; the absolute,
omnipotent will of the Supreme Being can alone become that.
The entire doctrine of the eternal law and natural moral law is
undermined by such a view. Just as the theory of will in municipal
and international law cannot admit a law beyond the positive one
(or, more precisely stated, beyond the factual will as a persisting
act), so Occam, for instance, could not admit a morality that does
not have its first, proximate, and sole norm in omnipotent will, in
the absolute power of God. If, then, the idea of God and therewith
the supreme personal will are lost to sight or rejected, nothing
is left as the source of norms but the concrete will of the earthly
lawmaker. Or, as in the case of Spinoza, the deep impulses of
 IN T E L L E C T AND W ILL 177
nature (here taken as contrasted with mind) are regarded as the
natural norm. The biological as well as materialistic ethical sys­
tems and theories of law have here their roots.
From this it follows that the doctrine of the priority of the in­
tellect over the will in God as well as in man is a prerequisite of
the possibility of a natural moral law and hence of the natural
law in the narrower sense. It is significant that traditionalism is
congenial both to the historical school of law and to the conserva­
tive thinking of Donoso Cortes, De Maistre, and A. von Haller, a
consequence of the deep feeling against rationalism. The prin­
ciples of morality, it appeared to them, are not to be discovered
in being. They are a positive revelation, a primordial revelation,
mysteriously handed down through the centuries and millennia
in the hearts of men.

The objective, the real, is the measure of knowledge. The order

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

reason knows, and the real exists prior to it. The known truth
thereupon appears to practical reason as truth to be accomplished
through the will.1
In this priority of the real or of being over knowing, and of
knowledge over willing, lies the basis of the possibility of a nat­
ural moral law. The structure of moral action is built up from the
knowledge, through the theoretical reason, of the idea as goal of
the being by way of the recognition, through the practical rea­
son, of this being as a good. This good is then proposed to the
will as something to be striven for.

Knowable being is the principle of oughtness. The supreme

principle of oughtness is simply this: Become your essential being.
For the rational, free nature of man this signifies: Act in accord­
ance with reason; bring your essential being to completion; ful­
fill the order of being which you confront as a free creature.2 The
order of all being has its principle in God: as order of essences in
God’s essence, as created existing order in God’s will. The essences
of things, as first creatively conceived by God’s intellect, are, once
established, unalterable.3
1 "It is at this juncture then that moral philosophy assumes its specific role, linking
action to being, doing to thinking, ethics to metaphysics, and posing the all-important
question as to how rational animals can guide themselves to their proper ends. And if
. . . all activities, including all human acts, flow from the natures of created beings,
then it is the order of being and reality which establishes an unshakable norm for the
order of action or the moral order. And it is that same order of reality which exacts
sanction and retribution whenever its laws are violated in the sphere of human action.
"This primacy of the laws of being and reality over the rules of action or conduct
extends to every kind of human activity: it applies to individuals and groups, to the
spheres of law, politics, and economics, to national and international life. In every field
of human behavior and endeavor the ontological order or the order of being sets the
rules and norms for the practical or moral order. The nature of a thing (its being) deter­
mines the modes of its activity, and the supreme categories of being . . . retain their
validity in the sphere of action” (K. F. Reinhardt, op. cit., p. 109). That is, action or op­
eration necessarily follows being (operari sequitur esse): all beings act in accordance with
their specific natures.
2 In other words, man’s basic and prime duty is to become (in fact, actually, fully,
completely) what he is (in idea, potentially, germinally, essentially) through the con­
sistent and persistent use of his reason and free will in the light and direction of his
natural inclinations.
* The primary norm of the natural moral law, ‘‘Do good and avoid evil” (i.e., act for
 IN T E L L E C T AND W ILL 179
This order of the world is the eternal law. The purposiveness of
things, their continual pursuit of their ends, which reveals the
your rational end in conformity with your total nature), must be understood and applied
in the light of human nature adequately considered, i.e., in terms of man’s individual
and social constitution, ends, and essential relations. Indeed this intrinsic finality of
human nature is the proximate criterion for determining effectively not only the good
or perfection proper to individual men but also the common good of humanity as such.
Now the finality of human nature necessarily expresses itself in man’s natural inclina­
tions or tendencies in which reason discerns the proper ends of all human acts. But these
natural inclinations are themselves essentially bound up with man’s natural faculties
and their proper objects or ends. Hence the natural law generally obliges man to order
each of his faculties, in each of their operations, in conformity not merely with the
finality of the unitary whole which is man or of the common good, but also with the
intrinsic finalities of the single faculties themselves according to the hierarchy of values
discoverable by reason. As St. Thomas puts the matter, “ it is good for everything that it
obtain its end: and its evil is that it turn from its end. This applies to the parts as well
as to the whole: so that man’s every part, even as his every act, should attain to its due
end” (Summa contra Gentiles, Bk. I ll, chap. 122). Natural morality, based on intrinsic
finality in the first place, consequently demands that no single faculty or operative power
of man be used except in consonance with its finalization adequately understood. That
is, the natural law prescribes not only the end or ends to be achieved by man as his good
but also the specific means thereto, i.e., the proper exercise of his faculties. For reason
constrains us to view in the hierarchically ordered faculties of man and their proper
exercise, adequately considered, the means judged best by the Author of both the finality
and the law for the attainment of His purposes in regard to man. Hence the moral law
per se forbids the perverse use of a human faculty, i.e., a use of the faculty plus the
positive frustration of its direct and necessary effect or, again, a use which involves the
positive and direct frustration of the very good to which the faculty is intrinsically or­
dained. This is so because the ends or objects of the natural inclinations or appetites to
which the faculties are related constitute the primary criterion of man’s moral judg­
ments. This criterion, however, is not applicable in all cases with the same ease and
accuracy, nor is it the sole criterion of moral good and evil; it is of the greatest service
in connection with the most fundamental problems of ethics. Nevertheless, as man may,
for sufficient reasons, completely subordinate the intrinsic finality of an animal organism
or faculty to his own good (e.g., in scientific experiments or artificial breeding) without
being guilty of really abusing or frustrating the animal’s nature viewed adequately, so,
too, a person may, for proportionately serious reasons and within reasonable limits, in
any way utilize, exercise, or sacrifice, without incurring the note of real abuse or frustra­
tion, a lower human faculty or organ for the good of the individual as a whole or of
another person. For every faculty in man “ has its own end or object, but is subordinate
to the wider faculty which contains it and to the whole organism, since the end of the
whole organism includes the end of each part” (Michael Cronin, The Science of Ethics,
I, 138). But it would be utterly contrary to the order of man’s rational and social nature
itself for a person directly to frustrate in their very use the intrinsic good of his rational
faculties and especially those faculties whose end or function is primarily social and
directed to the common good (speech and sex), even at behest of the public authorities;
yet induced temporary suspension of a rational faculty for a sufficient reason would not
constitute frustration. In certain instances, moreover, faculties appear to be used outside
rather than against their proper finalization, inasmuch as no loss of a good seems to be
involved in such use. Cf. St. Thomas, loc. cit.; Michael Cronin, op. cit., I, 127-74; John A.
Ryan, The Norm of Morality Defined and Applied to Particular Actions (Washington,
D.C., 1944); especially James B. Sullivan, O.M.I., The Principle of Finality and the
Problem of Contraception, unpublished dissertation of the University of Ottawa (1943),
chapter 3.
i8o T H E N A T U R A L LAW

order, points to the supreme Lawgiver. Accordingly the eternal

law is nothing else than the exemplar of divine wisdom, as di­
recting all actions (of rational creatures) and all movements (of
irrational creatures) to their due end.4 Or as St. Augustine had de­
fined it, “ the eternal law is the divine order or will of God, which
requires the preservation of natural order, and forbids the breach
of it.” 8 But order results from the steady pursuit of their ends on
the part of the various natures, from the natural activities im­
planted in things by God in conformity with the natures of the
things. “ All things partake in some way of the eternal law, in
so far as, namely, from its being imprinted on them, they derive
their respective inclinations to their proper acts and ends.” 6 But
they participate in it in keeping with their natures: the unfree,
irrational creatures in an unfree manner, blindly obeying the
compulsion of their nature; the rational, free beings in the free­
dom of oughtness. The order of the world is an order of absolute
necessity for unfree creatures, but it is an order of oughtness, a
moral order, for rational and free beings. In the former case the
eternal law is a law of necessity; in the latter, it is a moral law of
freedom.7

* Cf. St. Thomas, Summa theologica, la Ilae, q.93, a .i. As St. Thomas likewise ob­
serves (ibid., q.93, a.5 ad 1), "the impression of an inward active principle is to natural
things what the promulgation of law is to men; because law, by being promulgated,
imprints on man a directive principle of human action.”
8Reply to Faustus the Manichaean, X X II, 27 (trans. R. Stothert). Elsewhere St. Augus­
tine more loosely states that the eternal law "ea est qua iustum est ut omnia sint ordina-
tissima.’’ De libero arbitrio, I, vi, 15.
8 St. Thomas, op. cit., la Ilae, q.91, a.a.
7 "No theistic and teleological system of philosophy that acknowledges an intelligent
supreme Being can omit the concept of a supreme and eternal law” (Hans Meyer, The
Philosophy of St. Thomas Aquinas, p. 463). Man’s general obligation, then, is to live
according to right order adequately considered. The natural law does not merely
command us to avoid whatever may harm ourselves, our fellows, or society; it com­
mands us rather to observe the natural order of things, imposed upon us by the
Author of nature as means to the end, lest such harm ensue. Indeed, we are not bound
by the natural law to attain certain ends so much as we are bound by it to observe the
order of nature as the means to their attainment. Since, therefore, it is not so much the
immediate and proximate duty of man to attain the various ends of his nature as it is
to observe the order itself which has been established for the sake of such ends, a person
may not consider himself no longer bound to observe the natural order simply because
 IN T E L L E C T AND W ILL 181

The natural moral law is therefore the eternal law for rational,
free beings. The ontological law becomes a moral law; the order of
being becomes an order of oughtness. The natural moral law
may be defined 8 as “ the light of reason inherent in us by nature,
some end is in a given case accidentally unattainable. God does not, by means of the
natural law, impose obligations upon human nature through the individuals who share
in it; He rather imposes obligations upon individual men through their human nature
itself. Take, for example, the case of fornication on the part of a man or woman who has
been sterilized, or the case of two parties who solemnly and sincerely bind themselves
to take good care of any offspring that may result from their illicit relations. Does the
natural-law prohibition of fornication lose its force or become unmeaning in the
premises? Not at all. The natural law does not merely enjoin the due multiplication
of men upon earth and the proper education of offspring; it rather obliges men to ob­
serve the order of rational nature, namely, the orderly and controlled satisfaction of
their sex cravings in the marriage union alone, which has been instituted precisely for
the attainment of these important ends. Hence any violation of that order viewed
adequately, no matter what the results may be, is already an infringement of the natural
law, a sin against the end of nature to which man is intrinsically ordered. And a sub­
stantial violation of the essential order of things constitutes a serious infringement of
the natural law, a grave sin—which occurs in all extramarital use of the sex function as
well as in certain marital abuses, for complete and unconditional restriction of human
sexual activity to natural use in lawful wedlock is, especially but not solely in view of
the disastrous operation of the wedge principle in sexual matters, absolutely required
for individual and social well-being. Yet it must be frankly admitted that it is far from
easy always to discriminate in the light of reason alone, in a very complex situation or
very complicated set of circumstances, between what the natural order of things strictly
requires, what the natural law precisely forbids, and what it permits as a genuine aid or
supplement to nature itself adequately considered, i.e., in its constitution, end, and
essential relationships. In such cases even the most intelligent, upright, and balanced
moralists can and do disagree. Certain borderline cases have defied, and perhaps will
continue to defy, clear and certain rational solution.
8 Or, in the clear words of Hans Meyer (The Philosophy of St. Thomas Aquinas,
p. 466), the natural law is “ the complexus of all those prescriptions which flow from
human nature, which are directed to the fulfillment of man’s ultimate end, which are
known by the light of reason, and which appear in the consciousness of man armed with
a claim to absolute obedience.” According to Jacques Maritain, "natural law is the en­
semble of things to do and not to do which follow” from the principle that we must do
good and avoid evil “ in necessary fashion, and from the simple fact that man is man,
nothing else being taken into account” (The Rights of Man and Natural Law, p. 63).
Natural law, says J. P. Steffes, comprises “ all those binding norms which are valid for the
whole of mankind on the basis of nature itself and not just in consequence of the authori­
tative expression of some will or other, which may however be added to finished nature,
whether on the part of God or man” (“ Das Naturrecht im Rahmen einer Religionsphi-
losophischen Weltbetrachtung," Philosophia Perennis, II, 1020). The essence of the nat­
ural moral law consists in three elements taken in some way collectively: man’s natural in­
clinations, the light of reason with which he is endowed, and the resultant dictate or
proposition of reason; more precisely, however, it consists in the third element, the
dictate of practical reason. “ Like all other animals, man has natural inclinations; unlike
all others he has the faculty of reason which recognizes these natural inclinations nat­
urally; and the result of these two is a natural dictate or command of reason. . . .
Separately the inclinations of man or the light of reason do not at all answer to the
i8s T H E N A T U R A L LAW

through which we perceive what we ought to do and avoid; or

also: the knowledge, communicated to us by the Creator through
nature, that we must strictly observe in our conduct the order
which corresponds to our nature.” 9

description of law; separately the dictate of reason does not answer to the qualifications
of the natural, for it is not born in us. With the three elements taken together all diffi­
culties about the Natural Moral Law vanish. This dictate is natural, necessary as -flowing
immediately and inevitably from the two preceding elements, dependent upon them.”
(Walter Farrell, O.P., A Companion to the Summa, II, 379 f.). Cf. also: The Natural Moral
Law According to St. Thomas and Suarez, pp. 8a ff.
9Viktor Cathrein, S.J., op. cit., I, 344 f.
 CHAPTER X

The Structure o f the Sciences

T h e realistic theory of knowledge is the basis both of the unity

of knowledge and of the internal coherence and organic struc­
ture of the sciences. Despite all distinctions of objects or ways of
experiencing and looking at the one reality, and notwithstanding
all differences of methods, the sciences form an integrated system.
Not only do they all rest upon metaphysics as the foundation of
knowledge in general, but they also find their crowning in meta­
physics as the philosophy of being, the science which affords the
deepest knowledge concerning the principles and causes of being
itself. The individual sciences deal with being from specific view­
points. For instance, ethics deals with the norms which deter­
mine the deeds and actions of free persons, with the oughtness
which springs from being; and physics treats of material things
in their causal connection, their mode of existence, their mo­
tions. At the end of every science, moreover, there stands, not the
value of the science for practical use, but its discharge into knowl­
edge as such, the most profound impulse of the human spirit.
Indeed, man is so dominated thereby that we must a ffirm that
his deepest urge is to know as much as possible about everything.
Wherefore Genesis has quite rightly designated pride, the de­
sire to be like God (“ You shall be as Gods, knowing good and
evil” ; 3:5), as the greatest sin. And the modern age merely be­
trays its shallow, vulgar, and unphilosophical mentality when it
ascribes the temptation of the first human pair to concupiscence,
183
184 T H E N A T U R A L LAW

as though sexual love itself were not at bottom a kind of impulse

to know.1

Metaphysics is the logical foundation of all science. All science

is a system of general, necessary judgments touching the existence
or essence of their objects, and to that extent they constitute true
and genuine knowledge. Thus jurisprudence is a systematic
formulation of judgments about the general and particular posi­
tive institutions of the legal order: their existence, essence, sources,
principles, normative coherence, validity in space and time. The
history of law is a systematic exposition of judgments relating to
legal arrangements that were formerly in force. International law
is a system of judgments about the legal ordering of the com­
munity of states. But the formal element of every judgment is
contained in the verb “ to be” : jurisprudence is a normative
science. Hence the science of being (of its forms, principles, and
modes) is the basis of every other science. Being is universally
“ given” simultaneously with every act of knowledge: knowledge
is true knowledge through its agreement with a being. Being,
however, is reality differentiated according to act and potency,
according as being is determined or is capable of determination.
Being is reality before the intellect and truth in the intellect; it
is goodness before the practical reason and in the will.
Certain fundamental laws result from being: the principle of
contradiction (nothing can both be and not be at the same time
under the same respect), the principle of sufficient reason, the
principle of causality. They are absolutely universal; they are
always valid, even in regard to purely conceptual possible being,
provided it is something conceivable by reason. Yet this does not
mean that metaphysics as the first science must necessarily be
also the first in time, as though the cultivation of other sciences
1 The very Hebrew idiom for denoting sexual intercourse, “ to know a woman,” lends
color to this view.
 T H E ST R U C T U R E OF T H E SCIENCES 185
were rendered possible only through it. It merely means that its
essential principles first render science possible. In this way we
positively hold in our secure, habitual possession the principles
of contradiction, causality, and differentiation between being
which determines and being which is capable of determination:
and this possession is unconscious because it is continually ex­
perienced. These principles guide our entire thinking. They are
valid for every object of knowledge, so far as it must possess a
minimum of being in order to be apprehended or known at all.
The first principles of theoretical reason are self-evident. Even
an actual theoretical doubt about them proves their axiomatic
validity: to doubt them is to affirm them in the very act of
doubting.
“ Philosophy does not inquire about particular subjects in so far
as each of them has some attribute or other, but speculates about
being, in so far as each particular thing is. . . . Physics studies
the attributes and the principles of the things that are, qua moving
and not qua being (whereas the primary science . . . deals with
these, only in so far as the underlying subjects are existent, and
not in virtue of any other character).” 2 The various kinds of be­
ing, participations of universal being by the many particular
beings, particular reality in contrast to universal reality: all this
conditions the diversity of the sciences. Nevertheless the different
sciences are interconnected and they have a single object: that
which is, and a more and more comprehensive and profound
knowledge of it. How well and aptly, then, the creative spirit of
all languages speaks of the craving for deep knowledge, for what
lies beneath the surface, for the obscure that lies under and be­
hind the clear and obvious! Realistic philosophy has no tendency
to separate the sciences in place of distinguishing them; it has
no tendency toward a fanatical excessive specialization.
Just as the speculative intellect by extension becomes the prac-
2 Aristotle, Metaphysica, K. 4, 1061b 26-32 (trans. W. D. Ross).
i8 f T H E N A T U R A L LAW

tical intellect, so metaphysics becomes moral philosophy. That

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

There are in man, however, as the slightest reflection makes

plain, different modes of being. Man belongs to the corporeal
world, to the world of sentient creatures, and to the world of
rational, free, and social beings. T o this complex reality cor­
respond various sciences which concern themselves with man in­
asmuch as he belongs to these worlds. But as a rational, social
being endowed with free will, he is the object of the sciences that
are properly human: of psychology, as a rational being; of social
philosophy, as a being that is essentially social; of sociology, as a
being that exists in concrete social forms. Yet as a creature that
shapes his own rational and social life and being in freedom and
not through compulsion, man is the object of the moral sciences
which lay down norms of action in the light of the idea or essential
being of man.
The first principle of ethics, that good is to be done and evil
avoided, obtains its material content (the determination of what
is good) from the essential being of the rational, free, and social
nature of man. Thence result a natural social ethics, which also
rests upon social philosophy, and, as part of it, a natural law, the
natural law in the strict sense. When they were not treating of law
in the narrower sense, the Scholastics and their successors fre­
quently called their entire moral philosophy institutiones iuris
 T H E ST R U C T U R E OF T H E SCIENCES 187

naturalis. This served a good purpose: the unity of morality and

law was thereby safeguarded. Moreover, law, through its inclusion
in moral philosophy, was given its metaphysical basis. The science
of law received its foundation, the philosophy of law its objects,
and positive legal institutions their legitimation in the natural
law, which in its turn rested upon social philosophy and hence
upon the metaphysical doctrine of man. The oughtness or obliga­
tion of legal norms also obtained thereby a material foundation
in the essential being of man’s social and rational nature.
Thinkers thus escaped positivism, which believes that it has to
acknowledge and recognize only a factual willing of the norm by
a lawmaker who has force at his command. Positivism has always
originated in philosophical skepticism, or it is a purely arbitrary
short cut in the matter of determining the structure and intercon­
nection of the sciences. It renounces inquiry into the reason of the
norm.

The essentially social nature of man means that his mode of

being is social being, and that the idea of man is perfected in the
community and its gradations. This is not a requirement of some
impulse or other, but a reality which in ever increasing human
experience shows itself as “ given.” Social being, the necessary
communities of the social animal, is the object of social philos­
ophy. Social being is in reality. Therefore continual contact with
reality and observation of social life are needed in order to be
able to make assertions and form judgments about the nature of
social being. Only then can we discern what is permanent amid
the changing situations, amid the alterations of outward forms in
the course of history. With regard to social science, then, social
philosophy plays a role similar to that of metaphysics in respect
to the sciences in general.
It follows, consequently, that in this case also essential being
becomes oughtness to the practical reason. In this case, too, essen-
18E T H E N A T U R A L LAW

tial being becomes the goal and norm of what is taking shape
through the free activity of the human will. Social ethics and the
philosophy of law are extensions of social metaphysics. As the
mind by cognition draws out or abstracts the nature of social
being from the social data, from reality, it discovers the first
social ideas and principles. It does not itself construct them or
postulate them from some abstract principle or other, such as
freedom.

There is a philosophy of law, a doctrine of juridical oughtness,

to the extent that law and every legal order constitute a peculiar
order of social oughtness, a coordination of the various social
relations and connections among men from the loose and ephem­
eral to permanent and firmly established forms of community
living, since there exists a legal form of social being. The philos­
ophy of law cannot be detached from ethics, since it is part of the
latter. Furthermore, to the extent that it exists, it is as oughtness
and norm grounded in essential being, in the nature of social
being. Its first principles and the further conclusions form the
content of the natural law. The laws of being become norms of
doing and acting for the creative will. The eternal law, the law
of the world’s being, becomes the natural law in relation to the
rational and free creature. Whatever necessarily appertains to
the perfecting of a nature which is essentially social ought also to
exist and to be realized by the will. What necessarily belongs
thereto, no more, but also no less, is by nature right and moral.
As social philosophy is distinguished from sociology, and social
ethics from historical moral systems or codes of an epoch or class,
the positive science of law is distinguished from the philosophy
of law, and the positive law from the natural law. The natural
law embraces the contents of both the science of law and the phi­
losophy of law. As in metaphysics the first ideas of being in gen­
eral are presupposed, so here the ideas of individual person,
 T H E ST R U C T U R E OF T H E SCIENCES 189

community, morality, and of law are “ given” beforehand. “ The

individual legal experience depends for its clear comprehension
upon the universally valid concept of law, not vice versa” (R.
Stammler). Moreover, this concept of law is immediately present
to us who grow up in the legal community of family and kindred-
group, of professional group and village or town, and of the state
with its officials, judges, and courts. This holds true even if only
in the form of the general normative appurtenance of certain
things, and in the form of the relation of certain persons and
their action to us as individual equal or unequal members of the
community. Indeed this concept of law is so present to our minds
that, upon attaining the use of reason, we at once become immedi­
ately conscious of the basic juridical and moral principles and we
apply them in practice. Such fundamental principles are: Good
ought to be; what is mine ought to belong to me, what is yours,
to you; no one may molest me in what is mine. It is precisely the
same as in the case of cognition where we immediately possess
the intuition of certain principles, such as the principle of con­
tradiction.
The science of law and the philosophy of law accordingly differ
in their specific objects. The science of law views its objects, legal
ordinances, from the precise standpoint of their positive validity
and practical application in the administration of justice, their
historical evolution, their logical coherence and consistent inter­
pretation, and their positively established legal institutions. The
philosophy of law, on the other hand, has for its object the nec­
essary universal norms; and the legitimation of every positive
legal ordinance implies an attempt to realize such norms. Hence
its object is what has for centuries been known as ius naturale.
For this reason, too, every attempt to philosophize about law
bears willy-nilly a natural-law character. For without this going
back to ultimate, necessary, and permanent norms, there exist
only empirical generalizations, systems of legal types, genetico-
igc T H E N A T U R A L LAW

historical explanations of the factual development of a legal in­

stitution (e.g., the loan), but not knowledge of the real grounds
for the universally existing principle that what is borrowed ought
to be returned.

The essential nature of man, the idea of man as a rational,

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

The Nature o f Law

It m ay be said with some exaggeration that the era of individual­

ism was the first to pursue a philosophy of right or rights (in the
subjective sense), whereas the preceding age had rather developed
a philosophy of law. That would be especially justifiable were one
to conceive right more as a subjective permission and power to
demand, and law as objective order and the basis of duties and
rights. The suum would then be first, while the norm, through
which the suum would be determined and guaranteed, would
come later.
The Christian doctrine of natural law, however, does not first
posit the suum and the person, and only afterwards the law. But
as the community is perceived simultaneously with the person,
because it is “ given” with the latter, so the norm which determines
it is simultaneously posited with the suum. Man is continually
viewed in an order that is simultaneously given, whose natural
laws, arising from the nature of the essential order, require ob­
servance. Thus since thinkers did not set out from the isolated,
abstract individual and did not begin by asking what are to be
considered his inalienable rights, but always regarded man as a
member of an order instituted by God and manifesting itself in
man’s essential being, attention was paid more to the law, to right
in the objective sense.1 Besides, whoever is of the opinion that
i “ The story of the spectral analysis of the law of nature into the prismatic colours of
‘natural rights’ is a long one. The chief influence was undoubtedly the Christian re­
ligion” (J. H. Muirhead, "Rights,” Encyclopaedia of Religion and Ethics, edited by James
Hastings [12 vols. and Index, New York: Charles Scribner’s Sons, 1924-27] X , 771). More­
over, as Francis P. LeBuffe, S.J., and James V. Hayes explain, “ all rights come from law
and they come from law because it places a duty on the subject. But the fundamental
191
IC2 T H E N A T U R A L LAW

law and morality may not be separated, and hence that positive
law and moral law belong together, will be especially capable of
appreciating this view. Laws have then an ethical aim or end.
They are not merely a safeguard or protection of previously given
rights. They have in addition the positive ethical function of
making men better, more virtuous. But this implies that the
positive law is inwardly connected with the object which the
moral law has in view.

In St. Thomas Aquinas we find at first an entirely general con­

cept of law. “ Law is a rule and measure of acts, whereby man is in­
duced to act or is restrained from acting.” 2 This rule or law is an
ought, not a blind necessity. It applies to creatures possessed of
free will while it leaves their freedom intact. It is not physical
compulsion. (Hence the laws established for the movements—
motus, not actus— of irrational nature, the laws of nature in the
present-day meaning of the phrase, are laws only in an improper
sense.) Law is thus a norm for human actions which proceed from
free will and are therefore actions of a being who is master of his
deeds and omissions, of a being who is a person. But free will
presupposes reason, in keeping with the priority of the latter.
Consequently it pertains to the nature of human actions that
they are somehow determined by reason and are in agreement
with it. It is thus nature, and, more explicitly, rational nature,
which provides the proximate criterion in passing a judgment
of values on a specifically human (morally free) action. But rea­
son, as practical reason, further regulates action since it appre-
law from which all other laws derive their force and efficacy is the Natural Law. Now
the Lawgiver of the Natural Law is God, who has the right to man’s obedience. Immedi­
ately consequent upon this right of God is duty in man. Hence, prior to every right in
a man is his duty, general or particular, and prior to every duty is God’s right to the
ultimate purpose of creation and to the submission and service of mankind" (Juris­
prudence, p. 136). Accordingly, man’s primary right is the right to do his duty, i.e„ to
achieve his end, to perfect himself, to realize his essential nature, and thus to attain
true happiness, his subjective end, in this life and in the next.
tSumma theologica, la Ilae, q.90, a. 1
 T H E N A T U R E OF LAW 193
hends the connections and relationships of ordered things among
themselves and in relation to their end, because order arises
through common direction to an end. Again, all action occurs
for the sake of an end. Without purpose, action would be mean­
ingless; without purpose, the will has nothing to strive for. But
reason alone can grasp the appropriateness of the actions for at­
tainment of the end; it alone can conceive the means and the
series of intermediate ends that lead to achievement of the final
end. This activity of reason, through its decision for or against a
proposed course of action, precedes the will, the converting of
the deliberation and the judgment into act. The content of every
norm, therefore, as well as all that has in any way a normative
character, is related to reason as essential nature and as principle
of knowledge.®

It follows from the foregoing that law is “ something pertain­

ing to reason.” 4 T o the concept of law belongs “ an ordinance of
reason,” 5 not (as it is occasionally thought) an ordinance for
reason, although law is this too. For law does not speak to the
blind will as such, but to the will guided and informed by reason.
Man acts for an end. Hence every action has an immediate
goal. It is evident, however, that the immediate end, e.g., writing,
is subordinated as a means to a higher end, e.g., the communica­
tion of thoughts. Ever wider investigation brings to light an ulti­
mate end, to which the subordinate ends are related as to a final
cause. Their relation to the final end is that which is common to
them all. It belongs to the nature of law to serve a supreme pur­
pose that is ultimate in the respective order. The purpose or end
8 For men "an action is natural only in so far as it harmonizes with the law of reason.
This agreement with reason is not only the mark of naturalness, of humanity, it is the
stamp of virtue; our actions are virtuous or good exactly in so far as they harmonize
with the commands of reason, or, in other words, precisely in so far as they follow the
directions of reason and move towards the goal of man” (Walter Farrell, O.P., A Com­
panion to the Summa, II, 382).
4 St. Thomas, op. cit., Ia Ilae, q.90, a. 1.
6 Ibid.., a. 4.
194 T H E N A T U R A L LAW

is a creative element in law and right. The final end of all human
action and at the same time the principle of such action is felicitas,
happiness.6 But universality belongs to this end: it is the com­
mon good of all who strive for it. T o that extent law is directed
to the common good in the general sense, from which it receives
the property of universality. Law is thus a general norm of rea­
son which directs the actions of free man to the common good,
not to a private or particular good.7 This may not be restricted to
the general welfare of the state, although this is its foremost ap­
plication, but holds good for every higher community with an
end of its own, in particular for the Church and the international
community, but also for the family and the larger kindred-group.

T o law pertains also a lawgiver. For a group of people, order

among the individuals who compose it and their direction to the
common end are essential. The group first receives its unity and
concrete form, its sociological and juridical individuality, through
the unity of order and through the end. However, the production
of this unity and the enduring realization of the common good
through the direction of the acting members to this goal pre­
suppose one or more directors in the specific sense of that term.
Chance or accident is not the creator of the community. For this
reason the lawmaker pertains to the notion of law, which must
be directed precisely to the general welfare. Consequently, too,
he is the lawmaker upon whom devolves concretely the care for
the common good, whether it be the corporate body itself, the
people, or the constitutionally determined holder of the public
authority.
Furthermore, since law is the rule of action for rational and
6 "The first principle in practical matters, which are the object of the practical reason,
is the last end: and the last end of human life is happiness or beatitude” (ibid., a. a).
Cf. ibid., q .i, a.6; q.a, a.7; q.3, a. 1; q.69, a. 1. What man’s last end or happiness does
and does not consist in, how far and in what way it is attainable in the present life, and
how we are to conceive the final and perfect happiness of the next life, St. Thomas deals
with, ibid., q.8-5; Summa contra Gentiles, Bk. I ll, chaps. 1-63.
7 Cf. Summa theologica, la Ilae, q.90, a. a.
 T H E N A T U R E OF LAW *95
free beings, it has of necessity to be made known to them, that
they may direct their actions in keeping with it. Promulgation
likewise belongs to the nature of law.
Accordingly law is a general rule of reason which is directed to
the common good, emanates from public authority, and is duly
promulgated.8 The will, too, is included therein. For the framing
of a legal decree is just as essentially an act of the will, but only
on the basis of a precedent rational weighing of the ends and
means which concern the law. A rule that does not issue from the
activity of reason, an arbitrary rule or an arbitrary decree, “ would
savor of lawlessness rather than of law,” says St. Thomas cate­
gorically.9

Law, then, is primarily not will, although it owes its positive

concrete existence to a volitional act of the lawgiver. Materially
considered, it has to be a rule of reason and for reason (in the one
subject to the law). That is, only thereby can it obtain the decisive
qualification of true law. For rational nature must be directed
and guided in accord with reason, i.e., it must be in conformity
with truth. That has been common intellectual property ever
since the Greeks established the truth of the nomos: law is truth
(veritas facit legem).
Closely connected with this idea is the doctrine that the end
or aim of law is to make those who are subject to it good.10 Law as

s Law is “ an ordinance ot reason for the common good, promulgated by him who has
the care of the community” (ibid., a.4).
a “ Reason has its power of moving from the will . . . ; for it is due to the fact that
one wills the end, that the reason issues its commands as regards things ordained to the
end. But in order that the volition of what is commanded may have the nature of law, it
needs to be in accord with some rule of reason. And in this sense is to be understood the
saying that the will of the sovereign has the force of law; or otherwise the sovereign’s
will would savor of lawlessness rather than of law” (ibid., a. 1 ad 3). "Command is an act
of the reason, presupposing an act of the will, in virtue of which the reason, by its com­
mand, moves to the execution of the act” (ibid., q. 17, a. 1); see also the commentary of
Cardinal Cajetan upon this article of the Summa theologica. The way the intellect and
will mutually react and interact at all stages of conceiving, formulating, issuing, and
executing a command is convincingly depicted by Walter Farrell, O.P., A Companion
to the Summa, II, 49-62.
10 Cf. St. Thomas, Summa theologica, la Ilae, q.92, a. 1.
*9* T H E N A T U R A L LAW

a rational norm for the free activity of man must have at bottom
this objective; it is not a mere safeguard against the antisocial im­
pulses in man which menace the community. The dignity of the
laws rests on this consideration. Wherever, as already among the
Greeks, law had this ethical aim, law became something sublime
and venerable. This idea corresponds likewise to the ethical char­
acter of the community, especially of the state. All law wishes to
educate the members of the community. All true politics is educa­
tion of the people. It has required the entire emptying and dis­
paragement of the state at the hands of individualist liberalism to
bring about the denial of the educative function of the law, and
to assign to law merely a protective function in behalf of the
autonomous, even morally self-sufficing, individual.
Such is the nature of law. It is universal and holds good for all
laws: for the moral law and the positive law, whether the latter
is a statute of some corporative body or a law of state or Church.

The natural moral law, too, bears the character of law. Indeed,
as has already been mentioned, a heated controversy over this
point took place among the Late Scholastics. It reached its climax
in the dispute between Vasquez and Suarez. The argument turned
on the nature of law: Is law an act of reason, or is it an act of the
will? Vasquez was in agreement with tradition when he said that
law is an act of the intellect on the basis of an act of the will. Ma­
terially, therefore, he regarded law as an act of the intellect;
formally, as an act of the will. Therefore Vasquez was unwilling
to characterize the natural law as law proper, simply because the
law of nature as an intimation of that which is good in itself, i.e.,
in accord with reason, and of what is bad in itself, i.e., at variance
with reason, contains no element of will. Some had on this account
termed the natural law a lex indicans, in contradistinction to lex
praecipiens
The idea that rational nature as such is the natural law, and
 T H E N A TU R E OF LAW 197
that the latter has force even in the impossible hypothesis that
there be no God, was carried forward by Arriaga and Grotius al­
most to the point of the autonomy of human reason. The con­
trary position was the Occamist doctrine that law is but an act
of the will: hence the natural law is divine positive law, and the
basis of the goodness and rightness of certain actions is not
found in their conformity with nature, but in the absolute will
of God, who is completely free to prescribe even the opposite
course of action. That meant the dissolving of the concept of
natural law. Therefore Suarez was at pains to point out that, as
the light of natural reason indicates by way of judgment the inner
agreement or internal contradiction of actions with rational na­
ture, it likewise indicates in the very same act that this corresponds
also to the will of God, the Author of nature.11
11 Yet it must be insisted that the obligation of the natural law does not depend for its
efficacy on a knowledge either of God as legislator or of the divine will. For in the im­
possible hypothesis that God might not will the natural law, the latter would never­
theless become known to men and would oblige men in the same way as now because
human nature would be constituted in the same way as now by command of the divine
reason, and both human nature and its acts would be ordained to the last end—a truth
glimpsed by Grotius. “ The essential order of things, more particularly the rational good
of man, is the proximate source of the obligation of the Natural Moral Law. It is a
secondary but true cause in the moral order, producing a true effect, a true obligation.”
Ultimately, of course, the efficacy of this secondary cause of moral obligation, which
simply results from the necessity of an act in relation to an absolutely necessary end,
depends on the first and supreme cause, God and His eternal law. Obviously, if there
were no God, nothing would exist, and hence there would be no natural law of any kind.
Yet “ the obligation of the Natural Moral Law no more demands a knowledge of God as
legislator for its efficacy than do the first principles of the speculative order for their
validity. This obligation follows from a first principle, the principle of finality, which like
the other first principles has ontological value.” T o command is the function of law,
however, and obligation on the part of the subject is but the inseparable corollary or
consequent of command. Since the act of command is immediately and substantially
directive or ordering (and not intimating and moving), obligation Is primarily a product
of the intellect; yet since the act of command is fundamentally and radically motive or
effective, obligation is also a product of will. Thus the natural moral law implies the
existence of God and His eternal law, and all men are in some degree aware of its obli­
gation as a dictate of practical reason concerning necessary means to an absolutely neces­
sary end, namely, personal perfection and happiness. For nature itself imposes this end
upon man by physical necessity: he cannot but will it; and, on the other hand, reason can
perceive that certain particular goods and actions suited to man’s rational nature pertain
to that end as necessary means or conditions of this perfection and ultimate happiness
and that certain others do not. The natural moral law is no mere ideal to be pursued or
not in accordance with one’s whims or temperament; it imposes a strict obligation. It
simply involves the obligation to apply the supreme moral principle, “ Do good and avoid
198 T H E N A T U R A L LAW

All law is first and foremost an act of reason. Even technically

the deliberation precedes the decree. Yet law is also a decree of
the will.12 The answer to the question about the nature of law is
thus the answer to the question of the relationship between intel­
lect and will. And the answer to this decides the question of
whether a natural law is possible at all. The historical theories of
the nature of law down to the present time cover the whole range
of the antithesis: Law is reason—law is will. Besides, the nature
of the law provides the basis for differentiating forms of govern­
ment, and it renders philosophy of law possible or impossible.
In the United States, the judge, in virtue of his right to review
the law, inquires whether an act of the legislative body is un­
constitutional. Actually, however, he examines whether the act
is reasonable, and he disallows it if he finds it arbitrary. The
judge, or the Federal Supreme Court, thus becomes in the United
States the first chamber, wholly unprovided for in the Constitu­
tion, with an absolute right of veto.
The demand for a public consideration of the laws in parlia­
ment or congress, i.e., for the discussion of the reasonable grounds
pro and con, is likewise understandable only on the basis of the
view that law must be reason. Furthermore, paradoxical as it
may sound, the same view underlay even the absolutism of a Louis
X IV of France. For, as the latter passed not for a mere man but for
a vicegerent of God, the reasonableness of a law which emanated
from him was by inference a presumption of law and of right. The
same is true of the enlightened despotism of the following cen­
tury, which rested on the view that the ruler, because of his supe-
evil,” to every deliberate human course of action. Cf. Walter Farrell, O.P., A Companion
to the Summa, I, 383-88; The Natural Moral Law According to St Thomas and Suarez,
pp. 6-13, 54-61, 130-41, 148 ff.; "The Roots of Obligation,” The Thomist, I (1939), 14-30;
Michael Cronin, The Science of Ethics, I, 211-30; O. Karrer, op. cit., pp. 52-57, 233 If.
12 Law as it is in the legislator consists in an act of command. But “ command is im­
mediately and substantially from the intellect, radically it is from the will; it is an elicited
act of the practical reason, presupposing an act of the will” (Walter Farrell, O.P., "The
Roots of Obligation,” The Thomist, I [1939], 17).
 T H E N A T U R E OF LAW !99
rior, enlightened reason, can manage the state to the advantage
of the people.
Only Occam’s positivism in moral philosophy and that of the
closing nineteenth century in jurisprudence, by clinging to the
principle that law is will, held fast to the theory of will. The un­
fruitfulness of this theory is at the same time the reason for its
rejection.
Law must be reason, too, for the sake of man’s dignity. The
human person is not a means for the ruler’s use. Obedience, to
be ethical, must be reasonable obedience. This requires a cer­
tain insight into the reasonable character and the purpose of
the norm. Hence the lawgiver, precisely in those governments in
which the laws do not originate in public deliberation, almost
always adduces, generally in a detailed and solemn form, the
motives of the law.

Somewhat different is the question of whether the unreason­

ableness of a law or an actually deficient insight into its rea­
sonableness exempts one from obedience. Here the Christian
doctrine and individualist liberalism part company. The latter
optimistically considers that the individual is always sagacious
enough to have the requisite insight. In addition, it proceeds
from a preconceived notion that the law, as a restriction of free­
dom, is rather a necessary evil than a means for making the citizen
good. Lastly, it is filled with a distrust on principle toward the
lawmaker, whether he is a single tyrant or a hundred tyrants, i.e.,
a parliamentary majority. The legislator should lay down only the
formal rules of procedure. The individuals themselves determine
the material content of law through their contracts, which, more­
over, constitute the principal form of individualist jurispru­
dence.
The Christian philosophy of law, however, absolutely demands
the positive law. And if it declares reasonableness to be an essen-
20C T H E N A T U R A L LAW

tial note of the concept of law, it can still, with St. Thomas, char­
acterize only the absolutely unreasonable law, i.e., one that is at
variance with the natural law, as savoring of lawlessness rather
than of law. But since order is a very great good, just as is the will
of the state which realizes and preserves this order, so along with
the demand, addressed to the lawmaker, for the reasonableness
of laws goes a demand addressed to the subjects to preserve the
great good of order even when a particular law cannot be entirely
justified before the bar of reason. The continuance of any order
at all, however mixed it may be with injustice and arbitrariness,
is of greater value than the utter lack of order, than total disorder.
The Christian philosophy of law can demand this because in its
eyes the nature of the state is not exhausted in the legal order,
although the state must be essentially a constitutional state: it
must be in the law. But the state is more than that, for it does not
live by law alone; it also lives by the acts of all the social virtues
through which the idea of man is perfected.
We have this antithesis: law is reason (veritas facit legem)-,
law is will (auctoritas facit legem). The Christian philosophy of
law holds that, although auctoritas alone can enact the law, veritas
so pertains to the nature of law that law is quite as essentially
reason, i.e., an act of the intellect; indeed, from the standpoint of
the precedence of the intellect, law is primarily reason. For only
then can human law feed on the eternal law and be truly a norm
of rational nature. The dignity of law is founded on the fact that
it is “ an ordinance of reason for the common good,” that it is a
“ dictate of the practical reason.” As norm of human conduct,
i.e., of rational behavior, law must be a reasonable norm.

For the same reason, too, coercion cannot enter into the defini­
tion of law, even though, in contradistinction to moral law, phys­
ical enforceability is proper to the positive law of the state. “ Hence
compulsion is rather an element of wrong than of right, since
 T H E N A T U R E OF LAW 201

the latter, so long as it functions normally, has no need at all of

forcible execution” (F. von Martens). Coercion is the conse­
quence of the dignity and necessity of the positive law. The ra­
tional end or goal of the positive law is the ethical legitimation of
compulsion.
The genius of legal reason cannot, therefore, rest content with
self-denying positivism. It keeps returning to the natural law, to
reason and truth in the law.
 CHAPTER XII

M orality and Law

I t is a universal conviction of mankind that morality is a higher

norm than the positive law. This conviction is so universal that
lawmakers and judges continually appeal to morality; and every
revolutionary relies upon a moral, higher law of justice in his
opposition to the positive law. But morality itself must then be
absolute; it must cause the order of values to be terminated and
at the same time grounded in a supreme value and good (finis et
principium). Morality bases its norms upon the hierarchy of being
and of goods, which obtain their rank and proper value in their
instrumental relationship to the highest good. The highest good
is the Godhead, purest Being. God’s honor and glory, to which
the whole of creation bears witness, are also its highest end.
Therefore human morality consists in the preservation and exe­
cution of the order of being: in the perfecting and ennoblement
of the unique godlike being not only in the domain of his alto­
gether individual personality but also in the ever more perfect
rightful development of communities, and this too from the
first community, the family, up to the state and even up to man­
kind itself. This requires the more perfect development of the
spheres within which human life unfolds: economics, labor, and
technology quite as well as the arts and sciences. They are the
great Benedicite of creation and of human culture as a whole.
From the highest good they all receive due measure and their
rightful place in the order of essential being. Hence it is an im­
moral state of affairs when economics, an instrumental depart­
ment of life, becomes the dominant one: when the economic
SOS
 M O RALITY AND LAW 203

category of profit and utility is placed above man, that is,

above sovereign and autonomous personal values, whether in- the
case of individuals or in that of national political communities.
Therefore, ethics, the doctrine of absolute morality, ranks
higher than the other normative sciences such as art, medicine, hy­
giene, politics, legal and social philosophy. But this does not sig­
nify any narrow-minded moralization of the spheres of human life
and activity. For the laws of art, hygiene, and legal organization re­
main for all that specific, independent laws which result from the
very being of these subjects. This truth is founded upon the con­
fidence, derived from the philosophy of being, that the realiza­
tion of the specific modes of being, e.g., biological being, is at
the same time a fulfillment of morality. Morality calls for fidelity
to the laws of biology, whose ultimate coincidence with morality
is capable of easy and ever fresh demonstration.

Every system of ethics which acknowledges a Deity distin­

guishes three orders of duties: duties toward God, toward one’s
self, and toward one’s fellow man. The Greeks, the Roman ju r­
ists influenced by Stoicism, the entire period of the Middle Ages,
Pufendorf and Leibnitz, and Christian moral teaching down to
the present day have all accepted this threefold division of duty.1
Without a doubt right is correlated with the third class of
duties, with social ethics. There exists no right against oneself;
the right to oneself means a right against others. Right or, to use
a term familiar since Aristotle, justice (whose object is right) 2
is “ directed to another’’: 3 “ it denotes essentially relation to
another.” i For justice “ directs man in his relations with other

1 Strictly speaking, one cannot directly have duties to oneself. But “ one has duties in­
directly to himself inasmuch as he is bound by Natural law to attain certain ends”
(Charles C. Miltner, C.S.C., The Elements of Ethics [2nd rev. ed., New York: The Mac­
millan Co., 1936], p. 154).
2 Cf. St. Thomas, Summa theologica, Ila Ilae, q.57, a. 1.
*Ibid., q.58, a. 5.
<Ibid., a. 2.
204 T H E N A T U R A L LAW

men.” 5 In relation to God and to oneself there exist moral duties,

but no rights and legal duties in the proper sense.
But the rest of the specifically social virtues are also directed
to another: love of neighbor, friendship, liberality, charity, and
gratitude. How is right or justice distinguished from these? The
simplest answer is: By the fact that it is derived from, and is en­
forced by, the will of the state, the factual will of the lawful legis­
lator. The state admits an action at law to obtain the fulfillment
of certain duties and enforces the decision of the court. Since a
duty arising from gratitude or friendship is not actionable, it is
consequently an ethical duty. For the most part, as is well known,
a lawsuit destroys friendship. Yet this positivist explanation is in­
adequate. It contradicts mankind’s conviction of right: all peoples
distinguish between law and right. The English Parliament is
in theory sovereign: it can, to quote an expression which has
become almost proverbial, “ do everything but make a woman a
man, and a man a woman.” 6Yet even though it is held to be able
to make the wife of A the wife of B, it can never declare adultery
lawful (Lord Hale, 1701). A saying attributed to the eleventh-
century writer, Wippo, corresponded to the old Germanic law:
“ The king must learn and hearken to the law, for to keep the
law is to reign.” 7 The Sachsenspiegel, an early thirteenth-century
treatise on the law of the Saxons, expressly differentiates the nat­
ural law, as genuine and true law, from the positive law of the
state.
The proposition that law is a mere product of the factual legal
will has long been flatly qualified as heresy. The contrast between
legality and legitimacy, an altogether critical difference in polit­
ical philosophy, would otherwise be but a play on words, and
justice would be but an empty sound. Furthermore, there is
assuredly a Church law (canon law) which, applicable concur-
® Ibid., a. 5.
« Cf. A. V. Dicey, op. cit., p. 41.
1 Cited by Carlyle and Carlyle, op. cit., I ll, x*8.
 M O R ALITY AND LAW 205
rently with the law of the state on the strength of a concordat, is
autonomous with respect to the state. Besides, the doctrine that
the whole body of international law is derived solely from the will
of states could not be upheld in view of the inherent injustice of
the peace settlements of 1919 dictated in the suburbs of Paris.
Since these treaties actually came into existence through consent
on the part of the will of the states, their qualification as unjust
must necessarily come from another source of law than the con­
sent of the states. Lastly, is not the will of the state much more
concerned with the ascertainment or finding of the law which is
already in use among the members of the community than with
the making of law? It would be much closer to the truth to say that
right, as it were, antedates the law than to term the law of the
state the sole source of right.

A specious attempt to solve the problem has been the distinc­

tion between internal morality and external legality (Thomasius,
Kant). Certainly the law is for the most part satisfied with the out­
ward fulfillment of the legal norm— for the most part! Often,
however, inner motives also come into question, especially in
criminal law where premeditation or cold-bloodedness is more
severely punished in cases that otherwise are objectively the same.
The situation is similar also in private law, where good and bad
faith or the actual will of the parties to a contract, which is surely
something internal, is the decisive factor, and not purely and ex­
clusively the external document containing the contract unless,
of course, the higher principle of legal security and of ability to
count upon the semblance of law decides the matter. That acting
in fraudem legis, i.e., with the intent of evading the law, receives
no legal protection, points to the same thing. Perhaps the sup­
position that the distinction mentioned above is explainable by
the political conditions of the time is not far wrong. The restric­
tion of law to external conduct may well have arisen from the need
2o( T H E N A T U R A L LAW

to limit absolutism in the interest of a sphere of freedom for the

individual. “ Grant liberty of thought,” the Marquis of Posa, in
Schiller’s Don Carlos, adjures King Philip II of Spain.8
However, the limitation of morality to inner peace, to that
which is internal, is wholly unsatisfactory. Ethics embraces the
total activity of man, his inner and outward acts. Acts of obedi­
ence toward parents, of truthful speech, and of fidelity to one’s
given word certainly do not lose their moral character merely
because through their externalization they become legal acts.
Since they are good in themselves, even without a law they are
righteous actions; and their opposite is unrighteous, even though
no positive norm explicitly lays this down. It is not difficult to be­
lieve that the same motive prevailed here as in the other case. The
domain of law, in the concrete sense of absolutism, was to be re­
stricted. Only external facts and circumstances were to fall under
it. The state was to be able to enjoin security, external order; but,
beyond this, nothing. It was to have no ethical function. It might
in this way be possible to circumvent, in the interest of liberty,
moral education at the hands of the police-state.

St. Thomas teaches that justice “ directs man in his relations

with other men” in a twofold manner: “ first as regards his rela­
tions with individuals, secondly as regards his relations with others
in general, in so far as a man who serves a community, serves all
those who are included in that community.” 9 All this is brought
out in the age-old saying, “ Give to everyone his own” (suum
cuique). But that is termed a man’s own which is directed to him,
which must be regarded as due or owed to him, from the stand­
point of his essential idea. It is therefore that which must be left
to him. The objectively and subjectively teleological or purposive
character of things, goods, and actions, as the existential basis of
8 Act III, scene 10.
# Summa theologica, Ila Ilae, q.58, a.5.
 M O R ALITY AND LAW 307

persons, is, in the form of “ being owed,” of being necessary and

hence of being enforceable, the specific feature of law. Man has a
natural legal dominion over external things because he can, in
virtue of his reason and will, make use of external things to his
own advantage. “ One’s own” denotes not merely the physical
tie, the causal connection, though it can also mean this, but rather
the destination for the person. “ T o have a right means: there is
something here that belongs to us, and the will of the state recog­
nizes this and protects us” (R. von Jhering).
“ Mine,” however, presupposes an “ I,” a person, i.e., a subject
whose aims and end things serve and whose advantage is a goal
of the actions of others, solely by reason of being a person. Right
does not consider the inner, moral quality. T he citizen does not
owe obedience to the head of the state because of the latter’s inte­
rior moral goodness, but because he has charge of the common
good. It is therefore profoundly significant when the legal reason
sees only in the person a subject of right and confers legal per­
sonality upon groups of persons or associations which serve
permanent human goals as bearers of rights and duties. The per­
son exists for himself and for his own sake. He is the coordinating
center of things and actions. The legal reason confers juridical
freedom upon man and the human association in consequence of
man’s psycho-ethical liberty, i.e., independence or autonomy.
Here also being is the ultimate ground of one’s own, of a legal
suum, and therefore of what ought to be done or respected by
others. Hence to every right corresponds a duty. For the same
reason, too, every man is legally competent. T he person, the sub­
ject of right, can never by natural law become a thing, i.e., a mere
means, either for another individual or for the community. That
the Christian legal reason overcame slavery 10 is one of the most
important achievements in the history of culture.11
10 In conjunction, of course, so far as the actual fact of abolition is concerned, with
fundamental socio-economic changes.
n On the ethical problems raised by slavery in its varying degrees and with its dif-
so8 T H E N A T U R A L LAW

Love also embraces the other, but in the form of complete

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

Not all of human activity falls under the law. Only what strikes
the senses, only what is meant to be manifested, is matter for the
law. It has been well said that “ human law does not order this to
be done for the sake of that, but simply that this be done,” and
that “ the purpose of the law does not fall under the law.” The
possibility of applying force is thus a necessary consequence of
the notion of law. With ethics law has in common the power to
direct. But the power to compel pertains exclusively to law.
Every act or omission which relates to another, so far as it can
be enforced without intrinsic contradiction, is a legal matter. The
juridical character of an act is evidenced by the perception and
recognition that this possible use of force is not in conflict with
the inner nature of the act in question. The actual employment
of coercion, therefore, in no way alters the inner quality of the
legal action. On the other hand, a moral decision obtained by

ferent origins, see in particular Jacques Leclercq, Les droits et devoirs individuels, Part 1,
pp. 158-83; Luigi Sturzo, “ The Influence of Social Facts on Ethical Conceptions,”
Thought, X X (1945), 97- 99-
 M O RALITY AND LAW 209

force is inwardly voided as a moral action or decision by the very

fact of compulsion. Gratitude and pietas impel a son to care for
his feeble and aged father. If he fails to do so, the law uses its force
to compel him. The son’s support of his father is then a fulfilling
of a legal duty, but so long as the constraint is needed the moral
law remains unfulfilled.
In the sphere of law there is no place for an arbitrary decision.
The legal order is essentially different from the order of love or
friendship. As there is no such thing as forced love, friendship and
love freely embrace the special quality of the friend or loved one:
the core of his person as wholly unique, as this “ you.” Law does
not penetrate so deeply. It embraces the individual, i.e., a personal
unity, only to the extent that he can be known by the legal mind,
and then not in the uniqueness of his individual personality but
in his universal nature as a person. Law presupposes a certain
equality. That is the boundary of the order of justice. This leaves
the inner core of the person free. Nay more, it affords him the
prerequisites of free activity and guarantees such freedom. The
legal order forms a network of rules around the person without
regard for such individual qualities as peculiar and distinctive
character traits: things and actions are thereby related to the
person or are subjected to his control and competence. It compels
one to cooperate or to refrain; but it likewise constrains the others
to cooperate or to refrain. It erects and upholds the structure and
organization of such social units as the state. It further regulates
the activity, and confines within due bounds the unreasonable
arbitrariness, of the holders of political power, and it turns this
into moral power in the service of the general welfare. Here
again, however, it is not a matter of the special, individual quality
of the concrete person. The moral quality of a holder or organ
of public authority does not enter into the question of his or its
lawful position and of the legitimate exercise of his or its power.
Catholic social philosophy was right in maintaining this view in
SIC T H E N A T U R A L LAW

opposition to all the sixteenth-century antimonarchists who wrote

under the influence of Calvinist sectarianism. The moral neces­
sity of living within the legal order coincides with man’s inner
goal, namely, to become a moral person. Wherever law binds,
absolute power is impossible.

The law is an external, objective norm. My subjective right

is attached solely to my quality as an independent being, a being
with a goal that is altogether its own. Especially is it independent
of the coming and going of my moral qualities. It guarantees the
permanence of a community as well as of the individual person.
The law is not an end in itself. It organizes the community for the
sake of the latter’s essential goal, and it gives me my rights for the
purpose of rendering socially possible the achievement of my in­
nate end as man. Thence comes its power to coerce.
But even though no enduring community can live without law,
— neither the family nor the state nor any association whatever—
yet such communities do not live through the law but in the law.
The married couple, the family, lives through love. Love grips
the spouse in the uniqueness of his innermost being. The law
touches merely his general quality as spouse. Wherever this is
forgotten, wherever attempts are made to force into juridical
categories each and every relation of man to man, the meaning of
life is being lost. When in its panjurism, to coin a word, the
natural-law doctrine of the Enlightenment sought to embrace
everything with juridical categories and to explain the com­
munity as a mere product of legal conveyances, the great driving
forces of society languished or became perverted. Formlessness
was the final outcome in all departments of life. At least this was
the case wherever the mere conservation of the existing order of
things for the sake of the continued existence of society itself did
not simply carry the day. The idea of the state dissolved when the
state was made into a pure legal order. T he idea of the family
 M O R ALITY AND LAW sn
suffered an eclipse when people began to speak only of the right
to self-enjoyment. The law cannot engender life, nor can it take
the place of love. It can and should be but an inherently limited
order that exists for the purpose of protecting life.12
In this connection one cannot fail to perceive the greatness of
the philosophia perennis. It does not consist in linear thinking
which, as fanaticism is accustomed to do, detaches a single notion
from the ordered universe of ideas, thinks it completely through,
and then becomes an ism of some sort. It is, as it were, spherical
thinking. All essential ideas, which struggle with one another in
their mutual interdependence, are beheld in a due and prudent
equilibrium. Indeed fidelity to reality distinguishes this system
of thought.13 This means that such thinking is a kind of second
intellectual creation which imitates the original creation of God,
the supreme Intellect, who has willed order by creating reality as
a cosmos. Accordingly no prison of norms that are essentially alien
to them is erected for the spirit and the irrational vital forces.
These forces are first perceived in an intuitive, experiential act.
(It should not be forgotten that St. Thomas, for instance, was at
the same time a composer of hymns and a liturgist.) But reason
thereupon constructs for the vital forces the forms in which they
ought to function. It gives them the clear rational norm which is
12 “ Life and law are as closely intertwined as motion and its direction to a goal. Stating
the nature of life in saying that it is a motion to a goal, we have also stated the nature
and purpose of law; for law is exactly the direction of the motion which is life to the goal
of life. It deals only with the direction of life; it does not constitute life, nor does it
establish the end of life. . . .
“The identification of human life and moral life is an immediate indication of the
close connection of law and morality. Indeed morality is nothing more than conformity
with the rule which regulates human life—the rule of reason or law.
“ Human life is reasonable life, morality is accord with the rule of reason, and law to
establish that morality and rule that reasonable life must be the product of reason. It is
not the result of caprice, even of divine caprice; it is not the decree of a superior will.
The power of command is a power of the reason and not of the will. It is an ordination,
a direction of motion, an effective directive motion; so it is an act proceeding immediately
from the intellect on the presupposition of the movement of the will. . . .
“ Our view of life will determine our view of law. If life is a motion to a goal and law
the direction of that motion, of course our view on the goal of life will determine our
view on both life and law” (Walter Farrell, O.P., A Companion to the Summa, II, 386 f.).
1 3 Cf. K. F. Reinhardt, op. cit., pp. 13-26.
ais T H E N A T U R A L LAW

a reflection of its essential being. It gives them the rule, the frame­
work wherein, in conformity with their nature, they can alone
exist. For essential being and oughtness are correlative. The form,
the law, is not life; it only guides the unruly vital forces (e.g.,
self-interest, the sex drive, the will to power, the acquisitive urge)
in order that man can really live as man.
This explains the necessity and importance of the clear, cool
rationality of law as such. But it also explains why law is insuf­
ficient for complete human living, and why law is meant to be en­
forced.

But law and morality are not separated. Of course, since it is

the peculiar property of law to be enforceable, the boundary line
of the distinction is a shifting one in history. It has shifted accord­
ing as whether or not the fulfillment of definite moral duties was
regarded by public opinion as necessary for the preservation of
the concrete being of the community, and according as whether
or not these duties were clothed in legal form. The Middle Ages
were not intolerant out of mere narrow-mindedness, but by rea­
son of the spiritual fullness of the uniform Christian culture. The
heretic was not punished by the secular power because he had
committed the moral sin of heresy. He was punished because in
and with heresy he was doing harm to the internal stability of the
community, to Christendom.14 Juridical or civil toleration, which
must be carefully distinguished from dogmatic tolerance,15 had
to be put into effect when the one Christian faith ceased to be a
fact, when it had given way to differing creeds or denominations.
Henceforth unity of faith could be looked upon as no longer
14 In the same way the modern national state does not punish the traitor or the dis­
turber of national unity because he is guilty of a sin against the moral virtue of patriot­
ism, but because he is endangering national unity.
15 See especially Jacques Leclercq, L ’ft tat ou la politique (2nd ed., Namur: Maison
d’fiditions Ad. Wesmael-Charlier, 1934), pp. 82-90; Karl Adam, The Spirit of Catholicism,
trans. by Justin McCann, O.S.B. (rev. ed., New York: The Macmillan Co., 1935),
pp. 196-201.
 M O R ALITY AND LAW 213

necessary for political homogeneity. Whether or not disadvan­

tageous legal effects are attached to illegitimate birth depends on
whether the moral disqualification is viewed as necessary for the
maintenance of the idea and institution of marriage and the
family and hence as deserving of enforcement.16
These very examples show forth the nature of law in its inner
connection with morality. There is no law without morality. An
immoral law is a contradiction in terms or simply a statement of
fact, namely, that this positive legal norm conflicts with the moral
law and hence can impose no obligation, though the state may
have the physical power to enforce it. All law requires a moral
foundation.17 The will to achieve an ever greater approximation
of the positive law to the norms of morality is so deeply rooted in
man that even the positive law is always referring to morality.
Often enough the judge, as was already the case among the Ro­
mans with their doctrine of aequitas, is not content with a me­
chanical subsuming of particular instances under the general
norm but allows equity to play its part. In extreme cases, how­
ever, he goes back to the will of the lawmaker, who is assumed
to will only what is moral; or, if the literal meaning is impossible,
he puts forward an independent interpretation of the meaning of
the law, on the ground that the lawgiver could not have willed
anything unjust.
Yet all this does not exclude the fact that there is also a law on
the periphery of law which is pure law without a materially moral
character. Nor is every law necessarily a moral norm. Many police
ordinances (e.g., traffic regulations), which serve merely a sub­
ordinate purpose of means to an end, exhibit no materially moral
content. The same is true of the technical rules governing legal
procedure or the organization of law courts. These norms bear
16 Cf. Jacques Leclercq, Marriage and the Family. A Study in Social Philosophy, trans.
by Thomas R. Hanley, O.S.B. (and ed., New York: Frederick Pustet Co., 194a), pp. 381 ff.
17 “ No human law can violate the Natural Moral Law and still claim to be a law, be­
cause it cannot still pretend to aim at the ends of nature, the common good of the state
and the individual" (Walter Farrell, O.P., A Companion to the Summa, II, 378).
214 T H E N A T U R A L LAW

such a technical, formal, and utilitarian character that the quali­

fications of moral or immoral cannot be applied to them. Ques­
tions touching a monarchical or democratic constitution, lay
courts or a professional judiciary, collegiate or bureaucratic or­
ganization of offices, fall likewise into this category. Hence it is
plain that these norms bear only an instrumental character in
relation to the material law. The legislative process serves the
law, not vice versa.

It devolves, however, upon the idea of natural law, as part of

the natural moral law, to verify the morality in the law. And the
high professional ethos of the true judge and of every custodian of
the law also evidences it. Ulpian has given immortal expression
thereto. Speaking of those who apply themselves to the study of
law, the art of knowing what is good and just, he wrote: “ Any­
one may properly call us the priests of this art, for we cultivate
justice and profess to know what is good and equitable, dividing
right from wrong, and distinguishing what is lawful from what
is unlawful; desiring to make men good through fear of punish­
ment, but also by the encouragement of reward; aiming (if I am
not mistaken) at a true, and not a pretended philosophy.” 18
Digest, I, i, 1, trans. by S. P. Scott, The Civil Law (17 vols., Cincinnati: The Central
Trust Co., 1932), II, 209.
 CHAPTER XIII

The Content o f the N atural Law

F r o m 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 Chris­
tianity, it has always had a home in the philosophia perennis
whenever it appeared to be temporarily banished from the sec­
ular 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 nat­
ural law once and for all from jurisprudence, lived to hear Josef
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 nat­
ural law through its passion for deductions uncontrolled by be­
ing. For this abuse of deduction, together with the resultant
absurdities, produced a skeptical attitude toward the idea of natu­
ral law.
*»5
2i f T H E N A T U R A L LAW

The natural law is not in the least some sort of rationalistically

deduced, norm-abounding code of immediately evident or log­
ically 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 per­
tains 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 ex­
perts 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
1 St. T h o m a s , Ethicorum, I , 3. C f. S im o n D e p lo ig e , The Conflict between Ethics and
Sociology, tran s. b y C h a rle s C . M iltn e r , C .S .C . (St. L o u is : B . H e r d e r B o o k C o ., 1938 ),
p p . 2 7 3 - 7 5 , fo r a g o o d tre a tm e n t o f th is p o in t a n d fo r o th e r p e r tin e n t tex ts o f St. T h o m a s .
2 " I t is necessary fo r a n y o n e w h o w ish es to b e a n a p t stu d e n t o f m o r a l scien ce th a t he
a c q u ire p r a c tic a l e x p e rie n c e in th e custom s o f h u m a n life a n d in a ll ju s t a n d c iv il m a t ­
ters, such as a re la w s a n d p re c e p ts 1
o f p o litic a l l i f e ’’ (Ethicorum, , 4, c ited b y D e p lo ig e ,
op. cit., p . 274).
 T H E C O N TE N T OF T H E N A T U R A L LAW 217
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 preoccupa­
tions, 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 com­
mands 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 dis­
regard of the positive divine law, had, for what might be called
practical reasons, to be limited to a few norms in order to safe­
guard 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 per­
jure 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 be­
longs 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 sci
ence 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
3 C f. St. T h o m a s , Sttmma theologica, l a I l a e , q .9 4 , a . 4 ; D e p lo ig e , op. cit., p p . 3 1 8 ft.
I t is w o rth stressin g , in v ie w o f th e w id e sp re a d c o n fu sio n w h ic h p r e v a ils on th is fu n d a -
2l8 T H E N A T U R A L LAW

Since even St. Thomas had constantly emphasized the value of

observation and experience for the normative sciences and espe­
cially for the science of law, and since he had expressly demanded
extensive studies in comparative law 4 for all who were to occupy
themselves with moral science, it was more than a gesture in con­
formity 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 al­
together in line with the whole tendency of the natural-law doc­
trine of the philosophia perennis. Consequently, too, the doctrine
of the state of nature has had no importance for it, quite in con­
trast 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 prin­
ciples of natural law, but it is quite true in the case of the further
conclusions. Thus, for example, the institution of private prop­
erty has, through the teaching of Leo X III which was occasioned
(but not determined) by the situation and problems of his time,

m e n ta l p o in t , th a t th e s o c io lo g ic a l b asis o f th e d o c trin e o f th e n a tu r a l m o r a l la w is a
fa c t, th e m o r a l o r e th ic a l fa c t: " A l l m en ju d g e th a t th ere is a d iffe re n c e b etw een r ig h t
a n d w r o n g , g o o d a n d b a d in m a n ’s fr e e a c tiv ity . I n c o n seq u en c e, th e re fo re , th ey ju d g e
th a t th e re a re som e fr e e a c tio n s w h ic h m a n ought n o t to e lic it a n d som e w h ic h h e ought
to e lic it ” ( Ig n a tiu s W . C o x , S .J ., Liberty—Its Use and Abuse, I , 1 ; see also nos. 45 , 7 5 , a n d
g i) . T h a t is to s a y , w h e re v e r w e fin d m e n , w e o b se rv e th a t th ey a t t r ib u t e to th e ir a c tio n s
q u a lit ie s w h ic h c o rre sp o n d to w h a t w e c a ll th e id e a s o f go o d a n d e v il, r ig h t a n d w ro n g .
T h e g o o d o r r ig h t a c tio n is w o rth y o f p r a is e , esteem , a p p r o v a l, w h e re a s th e b a d o r
w r o n g fu l act ev o k e s d is a p p ro v a l, b la m e , c o n tem p t. T h e g o o d , th e r ig h t th in g , is to be
d o n e ; th e b a d o r w ro n g th in g is to b e a v o id e d . T h e go o d m a n d eserve s to b e lo v e d , a n d
h e w h o does r ig h t m e rits a re w a r d ; o n th e o th e r h a n d , th e b a d m a n d eserves to b e h a te d ,
a n d th e e v il-d o e r is w o rth y o f p u n is h m e n t. T h e s e id e a s, p re c ise in th em selv es, a n d th e ir
p re s u p p o sitio n s (in te llig e n c e a n d fre e w ill) a re fo u n d a m o n g a ll m e n , n o m a tte r h o w
p r im it iv e th e la tte r m a y b e a n d d e sp ite th e v a g u e , in c o h e re n t, a n d so m etim es c o n tr a d ic ­
to ry w a ys su c h id e a s a re a p p lie d . C f. J a c q u e s L e c le rc q , Le fondement du droit et de la
society, p p . 94 -9 6.
< In Octo Libros Politicorum Anstotelis Expositio, I I , 5.
 T H E C O N T E N T OF T H E N A T U R A L LAW 219

without doubt marked a notable advance in its natural-law con­

tents 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 treat­
ment in keeping with the growing complexity and maladjust­
ments 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 con­
tingencies: it takes shape in concrete decisions drawn from the
unique historical situation in conformity with the special char­
acter 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 re­
serve constituted a protection against the danger of embellishing
political aims with the dignity, inalienability, and eternity of nat­
ural 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 inter­
relations and applications. By natural law, for example, more
than one form of state or government is legitimate. Yet a political
220 T H E N A T U R A L LAW

ideal does exist, as acknowledged by every doctrine of natural

law: the reign of the principle of subsidiarity B 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 prefer­
ence 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.” 8

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, indemon­
strable principles of the theoretical reason.7 Moreover, such pri­
mary 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
8 P iu s X I , in h is E n c y c lic a l Quadragesimo Anno o f 1 9 3 1 , th u s e n u n c ia te s th is fu n d a ­
m e n ta l p r in c ip le o f so c ial p h ilo s o p h y : “ J u s t as it is w r o n g to w it h d r a w fr o m th e i n d i­
v id u a l a n d c o m m it to th e c o m m u n ity at la rg e w h a t p r iv a t e e n te r p r is e a n d in d u s tr y can
a c c o m p lish , so too i t is a n in ju s tic e , a g r a v e e v il, a n d a d is tu r b a n c e o f r ig h t o rd e r fo r
a la r g e r a n d h ig h e r o rg a n iz a tio n to a r r o g a te to its e lf fu n c tio n s w h ic h can b e p e r fo r m e d
effic ien tly b y s m a lle r a n d lo w e r b o d ies. . . . O f its v e r y n a tu r e , th e tru e a im o f a ll so c ial
a c tiv ity s h o u ld b e to h e lp in d iv id u a l m em b ers o f th e so c ia l b o d y , b u t n e v e r to d estro y
o r a b so rb th e m ” (ed. O sw a ld v o n N e ll-B r e u n in g , § 79). F o r a n a d e q u a te u n d e rs ta n d in g o f
th e p r in c ip le o f s u b s id ia r it y , cf. O sw a ld v o n N e ll- B r e u n in g , S .J ., op. cit., p p . a 0 6 -0 9 ;
Jo h a n n e s M essn er, Die soziale Frage, p p . 5 1 7 ff., 6 5 1 f., a n d Die Berufstaendische Ordnung
(In n sb ru c k : V e r la g s a n sta lt T y r o li a , 19 3 6 ), p p . 22 ff. a n d passim; Y v e s R . S im o n , Nature
and Functions of Authority. T h e A q u in a s L e c t u re , 19 4 0 (M ilw a u k e e : M a r q u e tte U n i­
v e rs ity P ress, 1940), p p . 46 ff.
® St. T h o m a s , Summa theologica, l a I l a e , q . 10 5 , a. 1.
t “ T h e p re c e p ts o f th e n a t u r a l la w a re to th e p r a c tic a l re a so n w h a t th e first p rin c ip le s
o f d e m o n stra tio n s are to th e s p e c u la tiv e re a so n , b ec au se b o th a re s e lf-e v id e n t p r in c ip le s ”
(ibid., q .9 4 , a . 2). C f. ibid., q .9 0 , a . i a d 2 ; q . 9 1 , a . 3 ; D e p lo ig e , op. cit., p p . 2 9 1- 9 3 .
 T H E C O N TE N T OF T H E N A T U R A L LAW 221

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 na-
turale, just as in that of the lex naturalis, the proximate and pri­
mary 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 immedi­
ately 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,
8 " T h e g o o d o f a n y t h in g con sists in th is th at its a c tio n b e p r o p o rt io n a te to its fo rm .
B u t th e p r o p e r fo r m o f m a n is th a t b y w h ic h h e is a r a tio n a l a n im a l. H e n c e a n a c tio n o f
m an m u st b e g o o d in so fa r as it c o n fo rm s to re a s o n ” (St. T h o m a s , Ethicorum, I I , 2 , cited
b y D e p lo ig e , op. cit., p . 294). “ In h u m a n a ffa irs a th in g is said to be ju s t fro m b e in g r ig h t,
a c c o rd in g to th e r u le o f re a s o n ” (Summa theologica, l a I l a e , q .g g , a. 2). “ W h a ts o e v e r has
a d e te rm in a te n a tu re m u st h a v e d e te rm in a te ac tio n s, b e c o m in g to th a t n a tu re : sin ce th e
p r o p e r o p e ra tio n o f a th in g is c o n seq u en t to its n a tu re . N o w , it is c le a r th a t m an h as a
d e te r m in a te n a tu re . T h e r e fo r e th ere m u st n eeds be c e rta in a c tio n s th a t a re in th em selves
b e c o m in g to m a n ” (Summa contra Gentiles, B k . I l l , c h a p . 12 9 ).
2 22 T H E N A T U R A L LAW

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 en­
titled 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
9 C f. S ta n le y B e r t k e , op. cit., p . 70. S t ric tly s p e a k in g , h o w e v e r, ev en th is fo r m u la t io n is
in a d e q u a te . C e r ta in O ld T e s ta m e n t ep isod es a ffo rd u s th e o cc asio n o f p e r c e iv in g th a t w e
m u st a p p a r e n t ly a d d th e q u a lific a t io n : “ sa v e o n th e a b s o lu te ly c le a r a n d ex p re ss o rd e r
o f G o d , su p re m e M a s te r o f h u m a n li fe a n d p r o p e r ty .” Y e t n o su c h u ltim a te q u a lific a tio n
can be c o n ceiv ed o r a d m itte d in th e case o f such e th ic a l d ic ta te s as th ose a g a in st b la s ­
p h e m y , ly in g , a n d a b u se o f th e se x fu n c tio n s w h ic h a r e in t rin s ic a lly c o n n e c te d w it h th e
v e r y essence o f h u m a n n a tu r e a d e q u a te ly c o n sid e re d in its c o n stitu tio n , e n d , a n d essen ­
tia l re la tio n s. A ft e r a ll, n o t ev en G o d can a lt e r th e essen tial p r o p e r tie s o f a tr ia n g le
w it h o u t c h a n g in g its n a tu r e , o r d o a n y t h in g else w h ic h in v o lv e s non-sense.
10 T h i s a b so lu te p r o h ib it io n (i.e., a t le a st so f a r as h u m a n a u th o r it y is con cern ed ) i n ­
c lu d es, th e re fo re , a n y fo r m w h a te v e r o f d ire c t k illin g o f a n in n o c e n t p e rso n fo r a n y
reaso n w h a te v e r ; it in c lu d e s a b o rtio n , th e ra p e u tic as w e ll as c rim in a l, a n d e u th a n a s ia
o r “ m e r c y -k illin g .” B u t it a lso in c lu d e s th e g r a v e m u tila tio n — e s p e c ia lly d ire c t s te r iliz a ­
tio n — o f a n in n o c e n t p e rso n , e x c e p t w h e re such m u tila tio n is n ecessary fo r th e g o o d o f
th e w h o le b o d y o r se e m in g ly e v e n w h e re , in g e n e ra l, a p e rso n con sen ts to sacrifice a n
o rg a n fo r th e g o o d o f h is n e ig h b o r . T h e e th ic a l p r o b le m o f th e indirect k illin g o r m a im ­
in g o f a n in n o c e n t p erso n is g o v e rn e d b y th e p r in c ip le o f th e d o u b le effect. F o r “ n o on e
m a y in t e n d o r ch oose h a r m to a n o th e r p e rso n , b u t a t m ost m a y p e r m it it fo r ju s t cau se;
so th a t e v e ry h a r m to a n o t h e r w h ic h fo llo w s as a c on seq u en ce u p o n a v o lu n t a r y h u m a n
act is e ith e r e n tire ly u n ju s tifia b le , o r c an be ju s t ifie d o n ly o n th e p r in c ip le o f th e d o u b le
e ffect.” N o w th e p r in c ip le o f th e d o u b le effect m a y b e fo r m u la t e d as fo llo w s: I t is
m o r a lly p e r m is sib le to p e r fo r m a n ac t (w h eth er o f co m m issio n o r o m ission ) go o d o r i n ­
d iffe re n t in its e lf fr o m w h ic h fo llo w a g o o d effect a n d a b a d e ffect, p r o v id e d (a) th a t th e
g o o d effect fo llo w s fro m th e act a t le a st ju s t as im m e d ia te ly as th e b a d e ffect, a n d is n o t
o b ta in e d b y m ea n s o f th e la tte r ; (b) th a t th e g o o d effect a lo n e is in te n d e d , th e b a d effect
th o u g h fo resee n b e in g m e r e ly p e r m itte d ; a n d (c) th a t th e g o o d r e s u lt in g fr o m th e act
o u tw e ig h s o r e q u a ls th e e v il. K illin g o r m a im in g a h u m a n b e in g in th e case o f in d iv id u a l
o r so c ia l self-d e fe n se is ju s t ifia b le o n ly to th e e x te n t th a t it is a s tric tly n e cessary m e a su re
o f la st reso rt a g a in st a n u n ju s t ag gresso r. T h e sta te , in p a r t ic u la r , h as n o b la n k e t, u n ­
c o n d itio n a l p o w e r o v e r h u m a n life a n d b o d ily in t e g rity . See T . L in c o ln B o u s c a r e n , S .J .,
Ethics of Ectopic Operations (2n d e d ., M ilw a u k e e : T h e B r u c e P u b lis h in g C o ., 1944), p p .
2 5 -6 4 ; E d g a r S c h m ie d e le r, O .S .B ., Sterilization in the United States (p a m p h le t, W a s h in g ­
ton , D .C .: N a tio n a l C a t h o lic W e lfa r e C o n fe re n c e , 19 4 3 ), p p . 2 5 - 3 4 ; Jo s e p h B . L e h a n e ,
The Morality of American Civil Legislation Concerning Eugenical Sterilization. T h e
C a t h o lic U n iv e r s ity o f A m e ric a S tu d ie s in S a cre d T h e o lo g y , N o . 83 (W a sh in g to n , D .C .:
T h e C a t h o lic U n iv e r s ity o f A m e ric a P re ss, 1944), p p . 6 3 -9 8 ; B e r t J . C u n n in g h a m , C .M .,
 T H E C O N TE N T OF T H E N A T U R A L LAW 223
person has at all times been considered a crime. Nor does the at­
titude 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 con­
ceived 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. T o 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 jurid­
ical quality. Hence the wounded, defenseless soldier ceases to be
in the strict sense an enemy. T o 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 appear­
ance of an actual enemy, without any saving juridical status. For
The Morality of Organic Transplantation. T h e C a t h o lic U n iv e r s ity o f A m e ric a S tu d ie s
in S a cre d T h e o lo g y , N o . 86 (W a sh in g to n , D .C .: T h e C a th o lic U n iv e r s ity o f A m e r ic a P ress.
ig 4 4), p p . 16 , 10 0 -0 6 .
1 1 C f. F r a n c is P . L e B u f fe , S .J ., a n d J a m e s V . H a y e s , op. cit., p . 4 5 : R e g in a F la n n e r y .
"N a t io n a lis m a n d th e D o u b le E t h ic a l C o d e ,” Thought, I X (19 3 5 ), 6 1 0 - 2 2 .
12 See J o h n K . R y a n , Modern War and Basic Ethics (M ilw a u k e e : T h e B r u c e P u b lis h in g
C o ., 194 0); J o h n A . R y a n a n d F r a n c is J . B o la n d , C .S .C .. Catholic Principles of Politics
(N ew Y o r k : T h e M a c m illa n C o ., 1940), p p . 2 5 1 - 7 1 ; J o h n E p p s te in , The Catholic Tradi­
tion of the Laui of Nations (W a sh in g to n , D .C .: C a r n e g ie E n d o w m e n t fo r In te r n a tio n a l
P eace— C a th o lic A sso c ia tio n fo r In te r n a tio n a l P e a c e , 19 3 5 ), p p . 6 5 - 14 6 ; L u ig i Stu rzo,
Les guerres modernes et la pensee catholique (M o n tre a l: E d itio n s d e l ’A r b r e , 194 2), p p .
3 1 - 1 0 2 ; Ja c q u e s L e c le r c q , Les droits et devoirs individuels, P a r t I , Vie, disposition de soi,
p p . 10 9 -3 2 .
1 3 A ll th is is tru e a fortiori o f th e d ire c t k illin g o f in n o c e n t n o n -c o m b a ta n ts, ev en u n d e r
c o n d itio n s o f to ta l w a rfa r e . C f. J o h n K . R y a n , op. cit., p p . 9 7 - 1 1 8 ; J o h n C . F o r d , S .J .,
“ T h e M o r a lit y o f O b lite r a tio n B o m b in g ,” Theological Studies, V (19 4 4 ), 2 6 1- 3 0 9 .
224 T H E N A T U R A L LAW

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 prohibi­
tive character. They pertain to the prohibitive natural law. When
they are fully and precisely formulated, it is impossible to con­
ceive 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
i * Abuti does n o t m ean h e re to a b u se , b u t to use u p . C f. Ja c q u e s L e d e r c q , Les droits
et devoirs individuals. P a rt I I , Travail, Propriete (N a m u r: M a iso n d 'K d ilio n A d . W esm ael
C h a r lie r , 19 3 7 ), p . 89.
 T H E C O N TE N T OF T H E N A T U R A L LAW s« 5
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 re­
fusal to give it back then and there is justified. That private prop­
erty 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.18 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 re­
mains 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 lia­
bility for non-fulfillment of a contract arising from malice or
16 C f. S t. T h o m a s , Summa theologica, I l a I la e , q .6 6 , a. 7.
226 T H E N A T U R A L LAW

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 posi­
tive 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
i s “ N o w sin ce h u m a n m o ra ls d e p e n d o n th e ir r e la t io n to reaso n , w h ic h is th e p r o p e r
p r in c ip le o f h u m a n acts, th ose m o r a ls a re c a lle d go o d w h ic h acco rd w ith r e a so n , a n d
th ose a re c a lle d b a d w h ic h a re d is c o rd a n t fro m re a so n . A n d as e v e ry ju d g m e n t o f s p e c u la ­
tiv e re a so n p ro c e e d s fro m th e n a tu r a l k n o w le d g e o f first p r in c ip le s , so e v e ry ju d g m e n t o f
p r a c tic a l re a so n p ro ceed s fr o m p r in c ip le s k n o w n n a t u r a lly . . . : fro m w h ic h p r in c ip le s
o n e m a y p ro c e e d in v a rio u s w a ys to ju d g e o f v a r io u s m atters. F o r som e m a tte rs co n n ec ted
w ith h u m a n a c tio n s are so e v id e n t, th a t a fte r v e ry lit t le c o n sid e ra tio n o n e is a b le a t o n ce
to a p p r o v e o r d is a p p ro v e o f th em b y m ea n s o f th ese g e n e ra l first p r in c ip le s : w h ile som e
m a tte rs c an n o t b e th e su b je c t o f ju d g m e n t w it h o u t m u c h c o n sid e ra tio n o f th e v a rio u s
c irc u m stan c es, w h ic h a ll a re n o t c o m p e te n t to d o c a re fu lly , b u t o n ly th ose w h o a r e w is e ’’
(ibid., I a I la e , q . to o , a. i).
i t D e p lo ig e th u s su m s u p th e te a c h in g o f St. T h o m a s o n th is p o in t : " A t o th e r tim es
m en do n o t ac t r ig h t ly b ec au se th ey d o n o t see c le a r ly . T o g u id e th em selves, a ll a ssu re d ly
h a v e c e rta in g e n e ra l p re c e p ts o f th e n a t u r a l la w , su p re m e n o rm s w h ic h a re fo u n d in th e
d iffe re n t m o ra litie s o f p e o p le s, first p r in c ip le s w h ic h n o h u m a n in te llig e n c e can b e ig ­
n o r a n t o f. S t ill, to r e g u la te th e d e ta ils o f co n d u ct, th e con seq u en ces o f these p re c e p ts m u st
b e c le a r ly d e d u c e d a n d th ey m u st b e a p p lie d ju d ic io u sly .
“ R e a s o n , in s tru c te d b y e x p e rie n c e , is th e in s tr u m e n t o f th is w o rk o f o rie n ta tio n . B u t its
sh arp n e ss o f v isio n is v e ry u n e q u a l fr o m o n e in d iv id u a l to a n o th e r; a n d its stre n g th is
n o t e x e rc ise d in th e sam e w a y at d iffe re n t m o m en ts o f life . Y o u t h is ig n o r a n t a n d p r e ­
s u m p tu o u s ; a t a m a tu re ag e re fle c tio n is c a lm e r. E x p e r ie n c e is th e p r iv ile g e o f those w h o
h a v e liv e d a lo n g tim e a n d h a v e seen m u c h .
“ Y o u n g o r o ld , h e m m e d in b y ig n o ra n c e o r e n lig h te n e d b y scien ce, a ll w ill b e a b le
th ro u g h a b it o f a t te n tio n , i f th e case is c le a r, to solve i t s u ita b ly b y re co u rse to g e n e ra l
p r in c ip le s : e ac h , fo r e x a m p le , w ill sp o n ta n e o u sly reco g n ize th a t h e m u st h o n o r h is
p a re n ts, c o n d em n m u r d e r o r th eft.
" I f th e s itu a tio n is c o m p lic a te d , o n ly w ise m en w ill b e a b le to ta k e ac c o u n t o f a ll th e
circ u m stan c es. A n d it w ill ta k e a ll th e su b tle ty o f th e ir m in d s to d isco v e r, in th e series o f
o cc asio n s, th e la w s o f r ig h t li v in g ” (op. cit., p p . 3 1 6 - 1 8 ) .
 T H E C O N TE N T OF T H E N A T U R A L LAW 2 3*7

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 theo­
retical reason. For the practical reason concerns itself with the
contingent element in human actions.20 However necessary and
i s Ja c q u e s M a r it a in is a lto g e th e r c orrect in h is asse rtio n th a t " n a t u r a l la w is n o t a
w r itte n la w . M e n k n o w it w it h g r e a te r o r less d iffic u lty , a n d in d iffe re n t d eg rees, r u n n in g
th e risk o f e r ro r h e re as e lse w h e re .” B u t h e a p p e a r s to go too f a r w h e n h e ad d s th a t “ th e
o n ly p r a c tic a l k n o w le d g e a ll m en h a v e n a t u r a lly a n d in fa llib ly in c om m on is th a t w e
m u st d o g o o d a n d a v o id e v il” ( The Rights of Man and Natural Law, p p . 6a f.). Y e t , w h a t ­
e v e r m a y b e th e case in re g a r d to in d iv id u a ls , " t h e p e o p le s o f th e w o r ld , h o w e v e r m u c h
th ey d iffe r as to d e ta ils o f m o r a lity , h o ld u n iv e rs a lly , o r w ith p r a c tic a l u n iv e rs a lity ,
to at le a st th e fo llo w in g b a sic p rec ep ts. R e s p e c t th e S u p re m e B e in g o r th e b e n e v o le n t
b e in g o r b ein g s w h o ta k e his p la c e . D o n o t ‘b la sp h e m e .’ C a re fo r y o u r c h ild re n . M a lic io u s
m u r d e r o r m a im in g , ste a lin g , d e lib e ra te s la n d e r o r ‘b la c k ’ ly in g , w h en c o m m itte d ag a in st
fr ie n d o r u n o ffe n d in g fe llo w c la n sm a n o r trib e sm a n , are re p r e h e n s ib le . A d u lt e r y p r o p e r
is w ro n g , ev en th o u g h th e re b e e x c e p tio n a l c irc u m stan c es th a t p e r m it o r e n jo in it an d
ev en th o u g h s e x u a l re la tio n s a m o n g th e u n m a rr ie d m a y b e v ie w e d le n ie n tly . In c e st is a
h ein o u s offen se. T h i s u n iv e rs a l m o r a l code ag re e s r a th e r clo sely w it h o u r o w n D e c a lo g u e
u n d e rsto o d in a s tr ic tly lit e r a l sense. I t in c u lc a te s w o r sh ip o f a n d re v e re n ce to the
S u p re m e B e in g o r to o th e r s u p e rh u m a n b e in g s. I t p ro te c ts th e fu n d a m e n ta l r ig h ts o f
life , lim b , fa m ily , p r o p e r ty a n d go o d n a m e ” ( Jo h n M . C o o p e r, “ T h e R e la tio n s B e tw e e n
R e lig io n a n d M o r a lit y in P r im itiv e C u lt u r e ,” Primitive Man, I V [ 1 9 3 1 ] , 36). C f. also
S ta n le y B e rt k e , op. cit., p p . 7 3 -8 3 .
is W h e n St. T h o m a s "fin d s h im s e lf in th e p resen c e o f d iffe re n t m o r a litie s , o f c o n tr a ­
d ic to ry la w s, o f d iv e rs e ly o rg a n iz e d in s titu tio n s ,” h e n e it h e r re g a rd s e v e ry v a r ia t io n as
a n a n o m a ly n o r a ttr ib u te s a ll d iv e rg e n c e s to th e sam e cau se. T h e e x p la n a tio n s scattered
th ro u g h h is w o rk s m a y be g r o u p e d u n d e r th re e h ead s: “ 1 . th e in flu e n c e o f th e p a ssio n s;
2. th e u n e q u a l d e v e lo p m e n t o f re a so n , o f in s ig h t, a n d o f c iv iliz a tio n ; 3 . th e d iv e rs ity o f
c o n d itio n s, o f situ a tio n s , a n d o f c irc u m sta n c e s” (D e p lo ig e , op. cit., p . 3 14 ).
20 “ T h e p r a c tic a l reaso n is c o n cern ed w ith o p e r a b le m a tte rs , w h ic h are s in g u la r a n d
c o n tin g e n t, b u t n o t w ith n ecessary th in g s, w ith w h ic h th e s p e c u la tiv e reaso n is con cern ed .
T h e r e fo r e h u m a n la w s c an n o t h a v e th at in e r r a n c y th a t b e lo n g s to th e d e m o n stra te d c o n ­
clu sio n s o f th e sciences. N o r is it n ecessary fo r e v e ry m e a su re to be a lto g e th e r u n e r r in g
a n d c e rta in , b u t a c c o rd in g as it is p o ssib le in its o w n p a r t ic u la r g e n u s” (St. T h o m a s ,
Summa theologica, l a I la e , q . 9 1 , a .3 a d 3).
228 T H E N A T U R A L LAW

certain the universal norms may be, such necessity and certainty
grow fainter and fainter as one passes from the general to the par­
ticular and the singular. The more uncertain becomes the judg­
ment 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 pos­
sible 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, con­
tinually 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 knowl­
edge of the being in the laws. This is not the strict, positivist an­
tithesis to the deductive process, but rather the mean: deduction
and induction, analysis and synthesis.28
This healthy skepticism toward the deductive, arrogant, or
naively romantic natural-law doctrine of rationalism, which at­
tempted 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
2 1 C f. D e p lo ig e , op. cit., p p . 3 1 3 £., fo r th e p e r tin e n t tex ts o f St. T h o m a s .
22 C f. St. T h o m a s , Summa theologica, l a I la e , q .9 4 , a . 6; D e p lo ig e , op. cit., p . 3 1 5 .
*2 C f. D e p lo ig e , op. cit., p p . 334 ff.
 T H E C O N TE N T OF T H E N A T U R A L LAW 829

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 con­
trary to the natural law, even though some primitives, in conse­
quence 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 ex­
clusively 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.28

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
2* D e p lo ig e , op. cit., p p . 3 2 4 -2 6 , gives th e v a rio u s texts o f S t. T h o m a s w h ic h d ea l
w it h th is ty p e o f in cest as w e ll as w it h s e x u a l re la tio n s in th e c o lla t e ra l lin e s. C f. also
Jo h n M . C o o p e r , “ In c e st P ro h ib itio n s in P r im it iv e C u lt u r e ,” Primitive Man, V (19 3 2 ),
1 - 2 0 ; " N e a r - K in M a r ria g e s : th e E th ic s o f H u m a n In te r b r e e d in g ,” The Ecclesiastical R e­
view, L X X X V I I (19 3 2 ), 13 6 - 4 8 , 2 5 9 -7 2 .
25 Su c h fo r m u la s as th a t o f th e N e o -K a n tia n R u d o l f S ta m m le r, “ n a t u r a l la w w ith a
c h a n g in g c o n te n t," a n d th a t o f G e o rg e s R e n a r d , " n a t u r a l la w w ith a p ro g re ssiv e c o n te n t,”
a re c o n se q u e n tly a lto g e th e r u n sa tisfa c to ry . M u c h m o re a d e q u a te is th e fo r m u la , “ n a tu ra l
la w w ith c h a n g in g a n d p ro g re ssiv e a p p lic a tio n s .” C f. Ja c q u e s L e c le rc q , Le fondement du
droit et de la socidtd, p p . 4 5 , 57 f. I n th is sense th e n a t u r a l la w is tr u ly d y n a m ic . I f m an
m u st b eco m e w h a t h e is, h e m u st c o n tin u a lly s tr iv e to a d v a n c e , in d iv id u a lly a n d so c ially ,
to w a rd an e v e r h ig h e r d e g re e o f h u m a n p e rfe c tio n . In o th e r w o rd s, th e n a t u r a l la w in ­
d ic a te s, p re s c rib e s, a n d g o vern s m a n ’s b asic in d iv id u a l an d so c ial d u ty to m a k e p ro gress,
p ro g ress th a t is at o n ce m a t e r ia l, in t e lle c tu a l, an d m o ra l, a n d th a t has n o v is ib le e a r th ly
lim its . Cf. ibid., p p . 14 8 if., a n d , in g e n e ra l, E . S ta n is la u s D u z y , Philosophy of Social
Change According to the Principles of Saint Thomas. T h e C a th o lic U n iv e r sity o f A m e r ­
ica P h ilo s o p h ic a l S tu d ie s, V o l. XCI (W a sh in g to n , D .C .: T h e C a th o lic U n iv e r s ity o f
A m e ric a P ress, 1944).
26 In th is n a rr o w o r s tric t sense, to keep a n im p o r ta n t p o in t c le a r, th e n a t u r a l la w is
th e n a t u r a l “ m o r a l la w so fa r as it a p p lie s to th e r e g u la tio n o f so c ia l r e la t io n s ” (L e c le rc q ,
op. cit., p . 18 ).
23C T H E N A T U R A L LAW

the concepts of individual and community.27 The rational sub­

stance 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),28 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 or­
der, 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 as­
suredly 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.
27 F o r th e e n su in g d iscu ssio n o f th e w e ig h tie st a n d m ost fu n d a m e n ta l p r o b le m o f so c ial
p h ilo s o p h y in its c h ie f asp ects, see in g e n e ra l ibid., p p . 3 2 5 -3 9 ; H a n s M e y e r , op. cit., p p .
4 1 7 - 5 4 ; K . F . R e in h a r d t , op. cit., p p . 1 4 1 - 4 7 ; Ja c q u e s M a r it a in , The Rights of Man and
Natural Law, p p . 1 - 1 9 ; Scholasticism and Politics, p p . 5 6 -8 8 ; C h a rle s d e K o n in c k , De la
primaute du bien commun contre les personnalistes. Le principe de I’ordre nouveau
(Q u eb ec; E d it io n s d e 1’U n iv e rsitd L a v a l, 19 4 3 ); R u d o lp h J o h n H a r v e y , O .F .M ., The
Metaphysical Relation Between Person and Liberty and Its Application to Historical
Liberalism and Totalitarianism. T h e C a th o lic U n iv e r s ity o f A m e ric a P h ilo s o p h ic a l S t u d ­
ies, V o l. L X I V (W a sh in g to n , D .C .: T h e C a th o lic U n iv e r s ity o f A m e ric a P ress, 194 2);
J a m e s H . H o b a n , The Thomistic Concept of Person and Some of Its Social Implications.
T h e C a th o lic U n iv e r s ity o f A m e ric a P h ilo s o p h ic a l S tu d ie s, V o l. X L I I I (W a sh in g to n ,
D .C .: T h e C a t h o lic U n iv e r s ity o f A m e ric a P ress, 19 39 ); F ra n z M u e lle r , " P e rs o n a n d S o ­
c ie ty a c c o rd in g to St. T h o m a s ,” in T h e o d o r e B r a u e r an d o th e rs, Thomistic Principles in
a Catholic School (St. L o u is : B . H e r d e r B o o k C o ., 19 4 3), p p . 18 4 - 2 6 3 ; W ilh e lm S c h w e r,
Catholic Social Theory, tran s. by B a rt h o lo m e w L a n d h e e r (St. L o u is : B . H e r d e r B o o k C o .,
194 ° ) .
PP- ll5
28 C f. Ja c q u e s L e c le rc q , op. cit., p p . 1 5 f.; F r a n c is P . L e B u f le , S .J., a n d J a m e s V . H ayes,
op. cit., p p . 14 0 f.
28 B u t also in A r isto tle 's sla v e -b y -n a tu re d o c trin e . C f. Politico, 1 , 4 - 7 , 12 5 3 b 2 3 - i 2 5 5 b 40.
 T H E C O N T E N T OF T H E N A T U R A L LAW agi

The personal being of man exists as a datum prior to all posi­

tive 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 be­
ing 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 depend­
ent 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 pe­
culiar 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
23 J T H E N A T U R A L LAW

presupposition of the legal order. The safeguarding or guaranty

of this first suum of the person is exactly what essentially differen­
tiates 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 pre­
positive 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 contra­
diction. 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 institu­

tion of private property. “ The conception of property is the
direct outcome of the conception of the ego. Just as the expres-
 T H E CO N TEN T OF T H E N A T U R A L LAW 233
sion ‘mine’ and ‘thine’ occur in every language to indicate own­
ership, 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 personal­
ity.” So wrote Heinrich von Treitschke, although shortly before­
hand he had observed that without the state and its law “ there
could be no property or security of property.” 30 This is an evi­
dent, 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.” 81 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 prop­
erty 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 ac­
quisition 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 com­
mon opinion of mankind, little affected by the few dissentients
so Politics, tran s. b y B la n c h e D u g d a le a n d T o r b e n d e B il le (a v o ls., N e w Y o r k : T h e
M a c m illa n C o ., 19 16 ), I, 390 f. a n d 388 f.
s i Summa theologica, l a , q . 2 1 , a. 1 ad 3.
32 O th e r m a jo r o r o r ig in a l titles o f a c q u ir in g o w n e rsh ip a re th e effe ctiv e first o c c u p a ­
tio n o f u n c la im e d p r o p e r ty a n d n a t u r a l in c re a se o r ac cessio n ; m in o r a n d m o re o r less
d e riv e d title s are c a rn a l in te rc o u rse , g ifts a n d b eq u ests, h e r e d ita ry su ccession , p r e s c r ip ­
tio n , con trac ts o f v a r io u s k in d s. C f. O sw a ld v o n N e ll- B r e u n in g , op. cit., p . ta o ; C h a rle s C .
M iltn e r, C .S .C ., The Elements of Ethics, p p . 2 2 7 - 3 1 ; Ig n a t iu s W . C o x , S .J ., Liberty—Its
Use and Abuse, I I , 9 3 - 10 8 .
2M T H E N A T U R A L LAW

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.” 88
In ownership lies the guaranty not only of security of the ma­
terial conditions of existence, but also of the specifically human
perfection, greater personal freedom.34 T o state the matter nega­
tively, whoever has no property all too easily becomes property,
a mere means in the hands of one who possesses a superabundance
of property.83 This right of private property, already shown to
ss L e o X I I I , Rerum Novarum ( 18 9 1) , § 8, ed. b y O sw a ld v o n N e ll- B r e u n in g , op. cit.,
p . 370. T h e q u e stio n o f w h e th e r a n d in w h a t p rec ise sense p r iv a t e o w n e rs h ip , o r the
in s titu tio n o f p r iv a t e p r o p e r ty , is a p o s itiv e a n d stric t d ic ta te o f th e n a t u r a l la w o r is
r a th e r m e re ly in e m in e n t acco rd w ith th e n a t u r a l la w is n o t a n easy o n e. I t has n u m e ro u s
fa cets, a n d it m u st b e v ie w e d fr o m m a n y an g les. I n th e th o u g h t o f A r isto tle a n d St.
T h o m a s , o b serv es Ja c q u e s L e c le rc q , “ property is an institution necessary to man, and it
must be established to the extent that it is necessary or useful. B u t it is n o t o n e o f those
in s titu tio n s w h ic h , lik e th e fa m ily , flow d ire c tly fro m n a tu re . I t is natural in the sense
that it is natural for man to live in society and that property is an institution indispen­
sable to the social order, b u t its immediate establishment comes from society and the
latter, in con seq u en ce, regulates its forms. F u r th e r m o r e , the use of property must be
directed above all toward the common good" (Les droits et devoirs individuels. P a r t I I ,
Travail, Propriete, p p . 93 f.). F o r an e x c e lle n t a n d f u ll tre a tm e n t o f th e r ig h t o f p r iv a t e
p r o p e r ty in th e lig h t o f th e n a t u r a l la w , see ibid., p p . 8 1 —17 0 . C f. also W illia m J .
M c D o n a ld , The Social Value of Property according to St. Thomas Aquinas. T h e C a th o lic
U n iv e r sity o f A m e ric a P h ilo s o p h ic a l S tu d ie s, V o l. X L V I I I (W a sh in g to n , D .C .: T h e C a t h ­
o lic U n iv e r s ity o f A m e ric a P ress, 19 3 9 ); J o h n A . R y a n , Distributive Justice (rev. e d ., N e w
Y o rk : T h e M a c m illa n C o ., 19 2 7 ), p p . 5 7 -6 6 ; I g n a t iu s W . C o x , S .J ., op. cit., I I , 6 6-86;
C h a rle s C . M ilt n e r , C .S .C ., op. cit., p p . 2 1 8 - 3 1 ; O sw ald v o n N e ll- B r e u n in g , op. cit., p p .
9 4 - 12 2 .
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 prop­
erty according to a rule of equality” (Jacques Leclercq, op. cit., pp. 130 f.).
33 Su c h p erso n s b eco m e p r o le ta r ia n s , u rb a n o r r u r a l, “ o w n in g n o p r o p e r ty , p o ssessin g
n o la n d o r tools o r a n y c a p ita l o f th e ir o w n , d e p e n d e n t e x c lu s iv e ly o n d a ily w a g e s, an d
liv in g in re n te d ro o m s” (C a rlto n J . H . F la y e s, A Political and Cultural History of Modern
 T H E C O N TE N T OF T H E N A T U R A L LAW 235
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 pro­
vide 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 pro­
vided 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 ex­
cept by the ownership of profitable property, which he can trans­
mit 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 perma­
nent 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 in­
stitutions of feudalism, or of liberalist capitalism, or of a system
in which private, corporate, and public forms of ownership exist

Europe [2 v o ls., N e w Y o r k : T h e M a c m illa n C o ., 19 3 2 - 3 6 ], I I , 47). C f. also G o etz A . B r ie fs ,

The Proletariat (N e w Y o r k : T h e M c G r a w - H ill B o o k C o ., 19 3 7 ). In th is re sp e c t it m ak es
lit t le o r n o d iffe re n c e w h e th e r th e m asses o f p e o p le are c o m p le te ly d e p e n d e n t e c o n o m i­
c a lly u p o n w e a lth y in d iv id u a ls , g r e a t c o rp o ra tio n s , o r th e state itse lf. M o re o v e r, the
n a tu r a l-la w d efen se o f th e r ig h t to p r iv a t e p r o p e r ty is e sse n tia lly th e d efen se o f w e ll-
d is tr ib u t e d p r o p e r ty , n o t o f a n a b stra c t r ig h t th a t can in p r a c tic e b e e x e rc ise d o n ly b y
th e few .
38 L e o X I I I , Rerum Novarum, §§ 9 f., ed . b y O sw a ld v o n N e ll- B r e u n in g , op. cit., p p .
3 7 0 f. C f. Ja c q u e s L e c le rc q , op. cit., p p . 13 3 - 4 0 .
23f T H E N A T U R A L LAW

side by side. These are positive-law determinations which spring

from the diversity of peoples and which change with the socio­
economic evolution.87

But individual personality does not exhaust the essential na­

ture 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 incarna­
tion. . . . 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 cramp­
ing, 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
° 7 "S in c e th e r ig h t to li fe is p r im a r y a n d p a ra m o u n t, th e n a t u r a l la w o rd a in s th a t th e
o rg a n iz a tio n o f p r o p e r ty m u st b e su c h as to p r o v id e a ll w h o c la im m e m b e rs h ip in th e
h u m a n sp ecies w it h a r e a s o n a b le o p p o r tu n ity fo r th e a d e q u a te sa tisfa c tio n o f t h e ir needs.
I n th e p re se n t o rd e r th e in s titu tio n o f p r iv a t e p r o p e r ty , in its e sse n tia ls, is b e st c a lc u ­
la te d to serv e th is p u r p o se . B u t th e b asic in s titu tio n its e lf is n o t to b e c o n fu se d w ith
p a r t ic u la r fo rm s it m a y assu m e in d iffe re n t ages o r re g io n s. T h e s e w ill b e ju s t ifie d a c ­
c o rd in g as th e y c o n tin u e to sh o w th a t th ey a re a c h ie v in g th e g e n e ra l a im o f m in is te r in g
to th e g o o d o f h u m a n life . T h e d ecrees o f n a tu r e o p p o se a n y a tte m p t at c o m p le te c o l­
le c tiv iz a tio n b u t n a tu r a l r ig h t m a y also be v io la t e d u n d e r a re g im e in w h ic h a g r e a t
n u m b e r, a lth o u g h th e o re tic a lly fr e e , a r e in p ra c tic e e x c lu d e d fr o m th e p o s sib ility o f
a c q u ir in g p r o p e r t y ” (W illia m J . M c D o n a ld , op. cit., p . 18 3).
 T H E C O N TE N T OF T H E N A T U R A L LAW 237
atrophy and mutilation, a failure to realize one’s being.” 88 In
the concrete, of course, a person is always a member of his fam­
ily, 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 do­

main of theology, does not need to be considered now. As a mat­
ter 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
38 A u g u s t P ie p e r, Organische und mechanische Auffassung des Gemeinschaftslebens
(3rd ed ., M .-G la d b a c h : V o lk sv e re in s -V e rla g , 19 2 9 ), p p . 20 f.
80 C f. W . W . W illo u g h b y , op. cit., p p . 36 -3 9 .
40 F o r an illu m in a t in g d iscu ssio n o f necessary societies, see Ja c q u e s L e c le rc q , Le fonde
merit du droit et de la societe, p p . 2 7 8 -3 2 2 .
238 T H E N A T U R A L LAW

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 mem­
bers 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 rudi­
mentary forms. Their essential characteristic is by no means
merely their super-individual goal or their juridical organiza­
tion, but precisely their necessity derived from the idea and end
of man. They are consequently distinguished by their perma­
nence: in the domain of the earthly and temporal they are ever­
lasting societies. Besides these, however, men form numerous
other societies for particular purposes. The latter societies be­
long 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

In d e e d , as Ja c q u e s L e d e r c q h as su c c in c tly p o in t e d o u t, " i f th e p a r t ic u la r societies

w it h in th e s ta te a re n o t n e cessary , ea c h o n e ta ke n b y its e lf— i f th e c o m m u n e is n o t n e c ­
essa ry , o r th e p r o v in c e , o r th e p ro fe s sio n a l g r o u p ,— what is necessary is that there be
some particular societies, a n d in d e e d in e v e ry p o lit ic a l so ciety as soon as it exceed s th e
stag e o f a v illa g e c o m m u n ity ." Im p e r fe c t, d e p e n d e n t o r n o n -so v e re ig n as su c h societies
m a y b e, th ey a r e y e t g e n u in e societies, i.e ., p e r m a n e n t u n io n s o f m en fo r m e d fo r th e
p u r p o se o f a c h ie v in g a c om m on en d . Le jondement du droit et de la society, p p . 284 f.
 T H E C O N TE N T OF T H E N A T U R A L LAW 239
it may have the duty, in virtue of its right of guardianship, to in­
tervene 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 juridico-
ethical evolution (e.g., in the case of the propertyless, proletarian
family of modern capitalist society).48
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 posi­
tive 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 pro­
duce 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 pos­
sible to decide whether in a concrete case marriage or concubinage
is present.
C f. Ja c q u e s L e c le r c q , Marriage and the Family. A Study in Social Philosophy, p p .
358 ft.
*3 C f. ibid., p p . 24 3-4 6 .
« M a r ria g e in v o lv e s th e s p e c ia l ty p e o f c o n tra c t k n o w n as c o n tra c t o f a d h e re n c e . C f.
ibid., p p . 2 9 -3 3 .
24' T H E N A T U R A L LAW

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 pun­
ishment.
For the application of the principle of suurn 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. Po­
litical 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 im­
poses such union upon them in conformity with the goal of per­
fecting 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 real­
ization of the idea of the state as a necessary society. This suum,
moreover, is not the sum of the rights which individuals trans­
ferred to the state, to the sovereign, in some supposed social and
 T H E C O N TE N T OF T H E N A T U R A L LAW 241
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 en­
tire 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 to­
tality 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 analo­
gous 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
« A g o o d s u m m a ry sta te m e n t o f th e p r o p e r fu n c tio n s, p r im a r y a n d se co n d a ry , o f th e
state is fo u n d in J o h n A . R y a n a n d F r a n c is J . B o la n d , C .S .C ., Catholic Principles of
Politics, p p . 12 7 - 3 9 ; cf. also ibid., p p . 10 8 - 2 6 , fo r a tre n c h a n t d iscu ssio n o f e rro n e o u s
th eo ries a b o u t th e fu n c tio n s o f th e state.
46 W h a t is th e m e a n in g o f th e p r e g n a n t p h r a s e “ c o m m o n g o o d ” ? T h e b e n e fic ia l o b je cts
d e n o te d b y th e term “ g o o d ” “ a r e a ll th e g r e a t classes o f te m p o ra l go od s; th a t is, all
th e th in g s th a t m a n n e ed s fo r e x iste n c e a n d d e v e lo p m e n t in th is life . T h e y c o m p rise a ll
th ese o rd e rs o f g o o d s, s p ir it u a l, in t e lle c tu a l, m o r a l, p h y s ic a l a n d e c o n o m ic ; in o th e r
w o rd s, a ll th e e x t e r n a l good s o f so u l a n d b o d y. . . T h e common g o o d m ea n s n o t o n ly
th e g o o d o f a ll in g e n e ra l, o r as a w h o le , b u t th e go o d o f ev e ry class a n d , so fa r as p r a c ­
tic a b le , th e go od o f e v e ry in d iv id u a l. T o p u t th e m a tte r in su m m a ry term s, th e S ta te is
u n d e r o b lig a tio n to p ro m o te th e w e lfa r e o f its c itizen s, as a w h o le , as m em b ers o f fa m ilie s,
an d as m em b ers o f social classes” (ibid., p p . 10 4 , 106 f.).
242 T H E N A T U R A L LAW

the basis of their legal partnership in the international commun­

ity, 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 per­
manently 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 in­
ternational 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 transcend­
ence.48 Thence result certain natural rights for the individual
47 F o r an illu m in a t in g a n d cogen t n a tu r a l-la w d iscu ssio n o f state a n d n a tio n a l s o v e r­
e ig n ty w ith its lim ita t io n s a n d in a d e q u a c ie s as w e ll as o f th e im p e r a t iv e m a t e r ia l a n d
m o ra l necessity o f an o rg a n iz e d w o r ld society, see Ja c q u e s L e c le rc q , Le fondement du
droit et de la society, p p . 2 8 5 -3 8 8 . C f. also th e a d m ira b le “ P r e lim in a r y R e c o m m e n d a tio n
on P o st-W a r P ro b le m s ” fo r m u la t e d b y th e In te r-A m e r ic a n J u r i d i c a l C o m m itte e at R io
d e J a n e ir o , S e p te m b e r 5 , ig 4 3 , in Bulletin of the Pan American Union ( A p r il, 194 3),
p p . 2 12 - 8 4 ; T h o m a s R . H a n le y , O .S .B ., “ So m e In te rp re t a tio n s o f th e P re se n t W o r ld
C r is is ,” The National Benedictine Educational Association Bulletin, X X V (ig 4 3 ), 15 9 - 7 5 ;
L u ig i S tu rzo , “ T h e In flu e n c e o f S o c ia l F a cts o n E t h ic a l C o n c e p tio n s,” Thought, X X
(19 4 5 ), 1 0 1 - 1 0 ; G u id o G o n e lla , A World to Reconstruct. Pius X II on Peace and Recon­
struction, tran s. b y T . L in c o ln B o u s c a re n , S .J . ( M ilw a u k e e : T h e B r u c e P u b lis h in g C o .,
ig 4 4 ), e sp e c ia lly p p . 2 4 6 -7 8 ; J o h n J . W r ig h t , National Patriotism in Papal Teaching
(W e stm in ste r, M d .: T h e N e w m a n B o o k sh o p , 19 4 3), in p a r t ic u la r p p . 19 5 - 3 8 3 ; E m e ry
R e v e s , The Anatomy of Peace (N e w Y o r k ; H a r p e r a n d B ro th e rs , 19 4 5)— w it h c e rta in
re se rv a tio n s, p a r t ic u la r ly w ith re g a r d to th e c h a p te r e n title d “ F a ilu r e o f R e l ig i o n ” w h ic h ,
fo r a ll th e ju s t ic e o f som e o f its critic ism s a n d stric tu re s, m u st b e set d o w n as a lto g e th e r
so p h o m o ric . O f g re a t v a lu e , lik e w ise , a re th e p a m p h le ts p r e p a r e d b y s p e c ia lists a n d issu ed
b y th e C a th o lic A sso c ia tio n fo r In te r n a tio n a l P ea ce, W a s h in g to n , D .C .; The World So­
ciety (19 40 ); International Ethics (4th e d ., 19 4 2); A Peace Agenda for the United Nations
(ig 4 3 ). L a s tly , fo r c e rta in so b e rin g , th o u g h p e r h a p s not e n tire ly c o n v in c in g , reflectio n s
u p o n th e p r o b le m o f a w o r ld state, see H e in r ic h R o m m e n , " R e a lis m a n d U to p ia n ism in
W o r ld A ffa ir s ,” The Review of Politics, V I (19 4 4 ), 1 9 3 - 8 15 .
48 I n the fin a l a n a ly sis, th e p e rso n is a r a tio n a l su b sta n c e, a s u b s ta n tia l r e a lity , w h erea s
a n y society w h a te v e r is b u t a n a c c id e n ta l r e a lit y , a r e a lity o f o rd e r, o f th e c a te g o ry o f
 T H E C O N TE N T OF T H E N A T U R A L LAW 243
person in relation to the state. These rights are not first con­
ferred 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 bot­
tom 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 de­
molishes these rights to material justice, it does away with its own
juridical being. For justice is the foundation of the state.50

r e la t io n , n o t a su p e r-p e rso n . C f. Ja c q u e s L e c le rc q , Le fondement du droit et de la society,

p p . 3 2 5 - 2 8 , 36 0-6 4.
H o w e v e r, ev en th o u g h m a n ’s n a t u r a l r ig h ts are c o m m o n ly te rm e d a b so lu te a n d i n ­
v io la b le , th ey a re lim ite d b y th e r e q u ire m e n ts o f th e u n iv e rs a l o rd e r to w h ic h th ey a re
s u b o rd in a te d . A b s o lu te , in th e sense in w h ic h i t is h e re u se d , does n o t m ea n u n lim ite d .
S p e c ific a lly , th e n a t u r a l r ig h ts o f m a n a re lim ite d in t r in s ic a lly b y th e en d fo r w h ic h he
h as receiv ed th em (se lf-d e v e lo p m e n t w it h in o rd er) as w e ll as e x t r in s ic a lly b y th e e q u a l
rig h ts o f o th e r m e n , b y h is d u tie s to w a rd o th ers. C f. Ja c q u e s L e c le rc q , op. cit., p p . 3 2 9 - 3 3 .
50 J o h n A . R y a n a n d F r a n c is J . B o la n d , C .S .C ., op. cit., p p . 1 3 - 2 7 , d e a l v e ry a b ly w ith
th e su b je c t o f n a tu r a l r ig h ts ; cf. also H a n s M e y e r , op. cit., p p . 4 7 4 - 9 3 ; Ja c q u e s M a r it a in ,
The Plights of Man and Natural Law, p p . 6 4 -6 8 , 7 3 - 1 1 4 ; K . F . R e in h a r d t , op. cit., p p .
15 4 -5 8 . T h o m a s P . N e ill n ic e ly su m s u p th e w h o le m a tte r : “ I t is fro m n a t u r a l la w , a n d
fro m it a lo n e , th a t m a n o b ta in s th ose r ig h ts w e r e fe r to as in a lie n a b le a n d in v io la b le .
M a n ’s o n ly r ig h t, in th e la st a n a ly sis , is th e r ig h t to be a m a n , to liv e as a h u m a n p erso n .
S p ecific h u m a n rig h ts , th en , are a ll b ased o n m a n ’s r ig h t to liv e a h u m a n life . So m e o f
these r ig h ts b e lo n g to m a n s im p ly as a m a n a n d th e re fo re a re a b o v e a n d b e y o n d th e
re a c h o f th e S ta te . H is r ig h t to e x iste n c e , fo r e x a m p le , th e r ig h t to p e r fe c t h is m o ra l
n a tu re , h is r ig h t to p e r s o n a l fre e d o m , the r ig h t to be tre a te d as a fr e e , in t e llig e n t, r e s p o n ­
s ib le h u m a n b e in g in n o w a y d e p e n d u p o n th e state. B u t th e re a re o th e r r ig h ts th a t m a n
en jo y s as a m e m b e r o f p o lit ic a l soc iety: fre e d o m o f e x p re s s io n , fre e d o m o f a sso c ia tio n ,
e q u a l access to th e la w . A n d th e re a re s till o th ers th at he d e riv e s fro m h is p a r t ic u la r p o s i­
tio n in soc iety, rig h ts w ith o u t w h ic h h e c o u ld n o t p r o p e r ly p e r fo r m h is so c ial fu n c tio n s ;
th e r ig h t to fo r m v o c a tio n a l g ro u p s, to a liv in g w a g e , to h u m a n w o r k in g c o n d itio n s, to be
tre a te d as a re sp o n sib le p e rso n r a th e r th a n as a u n it o f la b o r en erg y .
“ E a c h o f these r ig h ts , o f c o u rse, in v o lv e s a n o b lig a tio n o n th e p a r t o f a ll o th ers to
resp ect it. B u t each o f th ese r ig h ts , it sh o u ld b e re m e m b e re d , is also fo u n d e d o n a c o r­
r e sp o n d in g d u t y o n th e p a r t o f its possessor. T h e r ig h t to fre e d o m o f r e lig io n , fo r e x ­
a m p le , is b ased o n th e d u ty to w o r sh ip G o d , ju s t as th e r ig h t to w o rk is b a se d o n th e d u ty
o f se lf-p re se rv a tio n a n d s e lf-p e rfe c tio n . E a c h o f these h u m a n r ig h ts , m o re o v e r, is lim ite d
b y th e r ig h ts possessed b y a ll o th e r m e n . N o r ig h t is, p r o p e r ly s p e a k in g , a n a b s o lu te r ig h t.
E v e n fre e d o m o f r e lig io n is lim ite d b y th e h u m a n rig h ts o f a ll o th ers w it h in th e state.
T h u s th e state h as th e r ig h t, b a se d o n its d u ty o f p r o te c tin g its citizen s, to fo r b id s
r e lig io u s g r o u p fro m p r a c tic in g in fa n t ic id e o r p o ly g a m y .
“ H u m a n r ig h ts can h a v e n o fo u n d a tio n o th e r th an n a t u r a l la w . L e g a lly , o f c o u rse, th ey
com e fro m th e state, b u t i f a le g a l ‘r ig h t ’ is tr u ly to be a r ig h t it m u st b e b ased o n n a tu r a l
la w — w h ic h is o n ly a n o th e r w a y o f s a y in g th a t it m u st b e b ased o n m a n ’s v e ry n a tu re .
A n d sin ce th ey are b a se d in h u m a n n a tu re th ey a re r e a lly in a lie n a b le a n d m o r a lly in -
844 T H E N A T U R A L LAW

The natural law contains the necessary structural laws of so­

cieties. Hence also the close relationship between natural law and
social philosophy: natural law is social philosophy for the prac­
tical reason. A science of pure law is consequently unsatisfying.
For law is at bottom founded on the essentially teleological char­
acter 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 con­
stitute a positivist cleavage of the natural-law doctrine. Natural
law, of course, implies an ultimate unity of essential being and
oughtness.
T o the natural law corresponds a genuine pluralism, from
which the principle of the subsidiarity of the state takes its origin.
T he 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 or­
ganically 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 rudi­
ments of the state. They are not stages of the social process that
gradually wither away. On the contrary, they are enduring in­
stitutions, and their specific functions can never be wholly and
permanently taken over and fulfilled by the state.51 The opposite
v io la b le . O n ly th e C r e a t o r o f h u m a n n a tu r e can ta k e th em a w a y , a n d G o d c o u ld d o th at
w it h o u t c o n tr a d ic tin g H im s e lf o n ly b y c h a n g in g h u m a n n a tu r e itse lf. T h u s th e so u n d est,
th e o n ly fo u n d a tio n o f th ose h u m a n r ig h ts so fla g r a n tly v io la t e d to d a y is n a t u r a l la w .
T h e o n ly fo u n d a tio n fo r a so u n d stru c tu re o f g o v e rn m e n t a n d o f a ll so c ia l in s titu tio n s is
n a t u r a l la w ” (Weapons for Peace [M ilw a u k e e : T h e B r u c e P u b lis h in g C o ., 19 4 5], p p .
155f-)-
5 1 N o o n e h as m a d e th is p o in t m o re lu c id ly o r m o re s tro n g ly th a n L e o X I I I : “ P a r t ic u ­
la r societies, th e n , a lth o u g h th e y e x is t w it h in th e S ta te , a n d are ea c h a p a r t o f the State,
 T H E C O N T E N T OF T H E N A T U R A L LAW 245
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 com­
plete state control (Russian Communism, Italian Fascism, Ger­
man National Socialism).

There exists a true economy of the social virtues. Communi­

ties 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 suc­
coring 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 corre­
sponding 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
n e verth e less c an n o t b e p r o h ib it e d b y th e S ta te a b s o lu te ly a n d as su c h . F o r to e n te r in to
‘so c ie ty ’ o f th is k in d is th e n a t u r a l r ig h t o f m a n ; a n d th e S ta te m u s t p r o te c t n a t u r a l
r ig h ts , n o t d estro y th e m ; a n d i f it fo r b id s its citizen s to fo r m asso c ia tio n s, it c o n tra d ic ts
th e v e ry p r in c ip le o f its o w n e x iste n c e ; fo r b o th th ey a n d it e x is t in v ir t u e o f th e sam e
p r in c ip le , n a m e ly , th e n a t u r a l p r o p e n sity o f m a n to liv e in so c ie ty ” (Rerum Novarum,
§ 38, ed . b y O sw ald v o n N e ll- B r e u n in g , op. cit., p p . 388 f.).
* 4* T H E N A T U R A L LAW

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 founda­
tion through the morality in law.
 CHAPTER XIV

N atural Law and Positive Law

L e g a l 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 writ­
ten 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 posi­
tivist 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 ques­
tion of whether something can be wrong in itself is meaningless
347
24? T H E N A T U R A L LAW

for him. T o 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 ques­
tion whether a legal norm lies before him. He presumes its jus­
tice, 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 pre­
scribed 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. T o the positivist, many consti­
tutional provisions are not genuine legal norms but rather pro­
grammatic 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 ob­
viously 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 lib­
erty, has set himself not only above the lawmaker but in theory
 N A T U R A L LAW AND POSITIVE LAW 249
even above the framers of constitutional law. For the real law­
maker is not the one who enacts the laws, but the one who sov­
ereignly 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 inade­
quate from the standpoint of both legal theory and legal phi­
losophy. 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 or­
dinary 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 un­
warranted 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 philo-
sophico-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 specula­
tions 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, posi­
tivism may well be congenial.
The predominance of positivism or of the natural law is like-
1 Cf. Jacques Leclercq, Le fondement du droit et de la societe, p. 57.
25C T H E N A T U R A L LAW

wise 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 deter­
mined 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 Chris­
tian 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 posi­
tive law; or, as the Christian tradition affirms in an apt distinc­
tion, 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 indi­
vidualist 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 ma­
terially complete system of law could be deduced, which there­
upon 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 ex­
tremes. It states explicitly that in the normative sciences certainty
and necessity decrease in proportion as deduction moves farther
 N A T U R A L LAW AND POSITIVE LAW 251
away from the first self-evident principles. It has so strong a feel­
ing 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 natu­
ral 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 im­
perfections 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 at­
tainment of just wage claims by means of a strike (breach of con­
tract) 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 with­
out 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. T o begin with, only the first principles and proxi­
mate conclusions (Decalogue) are immediately evident and epis­
temologically 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 neces-
* 5* T H E N A T U R A L LAW

sity 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 inter­
mediate 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. Con­
sequently the more the practical reason descends from the princi­
ples to the further conclusions and comes to apply them to
increasingly more concrete situations of fact, its knowledge be­
comes 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 labori­
ous and difficult to understand than the remedies in which con­
sists the whole art of medicine.” 3 Owing to this very uncertainty,
men stand in great need of the positive norm which derives and
2 This is the true meaning of certain passages of Aristotle (Ethica Nicomachea, I, 3,
1094b 11-26; II, 2, 1103b 26-11048 9) and St. Thomas (Ethicorum, II, 2) which are some­
times 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 sub­
ject 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 presup­
positions of the moral codes of primitive and civilized peoples alike. There exists, more­
over, 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, com­
plex, 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 reserva
tions, 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. More
over, in all ethical discussions of larger problems, such, for example, as the right or de­
sirability 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 Altru­
istic Ethics,” The International Journal of Ethics, X L I [19 31J, 459). Cf. Charles C. Milt-
ner, C.S.C., op. cit., p. 7; Stanley Bertke, op. cit., pp. 63-73; Michael Cronin, The Science
of Ethics, I, 21-25, 127-74.
s Ethicorum, V, 15, cited by Deploige, op. cit., p. 314.
 N A T U R A L LAW AND POSITIVE LAW 853
determines what is to be inferred from the general principle,
regard being had for the national character and the concrete his­
torical 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 in­
ferring 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 imperfec­
tion of all that is human, in the disordered vital impulse and im­
moderate instinctive drives of individuals and their groups and
communities.4 The propensity to disorder which is found in man
4 Cf. in general Miriam Theresa Rooney, Lawlessness, Law, and Sanction. The Catholic
University of America Philosophical Studies, Vol. XXX IV (Washington, D.C.: The Catho­
lic 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, be­
tween 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 tilings. They are the inescapable penalties for the warn of deep and
254 T H E N A T U R A L LAW

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 conse­
quence 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
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 in­
centives 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 fur­
nished 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 mas­
turbation), 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 in­
vincible ignorance of some Catholics in this matter, cf. Stanley Bertke, op. 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 arti­
ficial 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.
 N A T U R A L LA W AND POSITIVE LAW 255
requital (iustitia vindicativa) as well as deterrence and education.®
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 pru­
dence. Hence these two virtues— prudence and justice—belong
most properly to a king,” i.e., in his principal function of law­
making.6For prudence combines the knowledge of general princi­
ples 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 determina­
tions 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 com­
mand one to do something that in itself is immoral and unjust.
T o this category belong laws that are at variance with the pro­
'sFor a thorough and severe criticism of the notion of punitive justice, apparently ac­
cepted here, as confused, sentimental, irremediably obscure, and unnecessary, see Jacques
Leclercq, Les droits et devoirs individuels. Part I, Vie, disposition de soi, pp. 82-g6:
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 ex­
emplary), and educational. For an exposition of the dominant scholastic view of punish­
ment 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. X LV II (Wash­
ington, D.C.: The Catholic University of America Press, 1939).
6 St. Thomas, Summa theologica, Ila Ilae, q.50, a. 1 ad 1, 3.
r Cf. ibid., q.47, a.6, 15.
s Cf. ibid., q.50, a. i f .
256 T H E N A T U R A L LAW

hibitive precepts of the natural law. There is nothing revolu­

tionary 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 pre­
scribed 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 philoso­
phers 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 exe­
cute 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 expendi­
ture in the general interest does not justify a person in defrauding
the revenue. The natural-law principles of obedience and truth­
fulness 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
s 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,
 N A T U R A L LAW AND POSITIVE LAW s57

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 pos­
sibility of social living, of order in human affairs, vanishes alto­
gether.

So far as the other norms of the natural law (ius naturale per-
missivum 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, circum­
stances, 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 in­
volves 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

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 societe, p. 335).
*5* T H E N A T U R A L LAW

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
(18 11-7 7 ), 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. T o 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 accord­
ance 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 appor­
tionment 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 natu­
ral 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 sup-
 N A T U R A L LAW AND POSITIVE LAW a 59
posed 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 constitu­
tion 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 con­
cretely in the sense of an individual people in its historical pe­
culiarity) 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 de­
velopment, and their economic evolution. For only the eternal
structural laws of the social life of man as such are of natural law,
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. Ill,
July, 1941-Vol. VII, January, 1944), Mortimer J. Adler and Walter Farrell, O.P., chal­
lenge 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,., HI (1941), 398.
11 Cf. St. Thomas, Summa theologica, la Ilae, 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 govern­
ment 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 poli­
tics. Cf. Jacques Leclercq, Le fondement du droit et de la sociitd, pp. 395 ff.
26c T H E N A T U R A L 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 cre­
ative of law. Certainly these judges appealed and still appeal
is This is scarcely true of modern England itself, where Parliament is, at least in theory,
legally omnipotent,
 N A T U R A L LAW AND POSITIVE LAW 261
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 constitu­
tion 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 ex­
clude 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 un­
just, 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 ulti­
mate 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 invali­
date or not to apply a certain positive law which is clearly at vari-
262 T H E N A T U R A L LAW

ance 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 safe­
guard 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 primor­
dial 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 dis­
tinction 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 law 15— 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 ad-
l* 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.
is 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 lim­
ited 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.
 N A T U R A L LAW AND POSITIVE LAW 263

ministering 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 posi­
tive law has been progressively penetrated by the principles and
prestige of Christian ethics.16
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).
 CHAPTER XV

Conclusion

M o d ern totalitarianism with its depersonalization or man, with

its debasement of man to the position of a particle of an amor­
phous mass which is molded and remolded in accordance with
the shifting policy of the “ Leader,” is of its very nature extremely
voluntaristic. Voluntas facit legem: law is will. How seldom the
theorists and practitioners of totalitarianism mention reason, and
how frequently they glory in the triumph of the will! The will
of the Leader or of the Commissar is not bound by or respon­
sible to an objective body of moral values or an objective standard
of morality revealed in the order of being and in human nature.
The will is not bound by the objective, conventional meaning
of words or by the relation of these to ideas and things. Ideas, as
well as the words which express them, are mere tools for the will:
they are to be remolded whenever this is expedient. Accordingly
an appeal from decisions of this will to natural law, to intrinsic
right, to justice and equity, to ideas, must appear as “ treason”
which stems from democratic decadence or from bourgeois preju­
dices. The defense against totalitarianism cannot plead greater
efficiency, more economic productivity, which are the categories
in which the totalitarian “ social engineer” thinks. Such a defense
must appeal to justice, to the rule of reason; it must plead in the
name of the natural law and of the natural rights of human per­
sons and their free associations. Natural law is not only an ideal
for the positive law, for legislation to realize; it is also a critical
norm for the existing positive law.
Natural law, however, is essentially a framework law, a skele-
$64
 CONCLUSION 265
ton law. It does not ordinarily give us a concrete norm directly
applicable to action here and now in the involved situations of
actual life. It does not, for instance, tell us which of the many
possible forms of laws about property is right in the abstract.
Neither the capitalistic nor the feudal system of property is im­
posed by the natural law. But it judges each and every existing
system of property in terms of justice. Moreover, natural law does
not condemn the wage contract as such or the socio-economic or­
der of which the wage contract is so important a part, but it makes
clear that a social order in which the so-called iron law of wages
rules the labor market violates justice and equity. Further, natu­
ral law does not proclaim that democracy as a form of govern­
ment is the sole admissible mode of political organization; yet
it does tell us that any form of government, even one that is
decked out in the trappings of democracy, which does not recog­
nize the fundamental rights of the person and of the family is
tyrannical and may, therefore, rightly be resisted. Natural law,
finally, does not say that the Security Council of the United Na­
tions is, in its concrete form, good and efficient; but it does for­
bid the independence of a small nation to be sacrificed out of
mere expediency for the sake of the “ security” of a great power.
This quality of the unvarying natural law, which elevates it
above the changing historical positive law, which makes it both
the ideal for lawmakers and the critical norm for existing laws,
renders it possible for the natural law to govern the acquisition
and exercise of political power itself.
Politics is and remains a part of the moral universe. For it is
inexcusable to view politics merely as the technique or art of
achieving and retaining social power for some selfish end through
the skillful exploitation of human weaknesses, by deceit or by
terrorist methods. Politics is rather the great architectonic art
by which men build the institutions and protective forms of their
individual and communal life for a more perfect realization of
s6e T H E N A T U R A L LAW

the good life. Its main function is to establish an order and unity
of cooperation among free persons and free associations of per­
sons in such a way that these, while they freely pursue their in­
dividual and group interests, are nevertheless so coordinated that
they realize at the same time the common good under the rule
of law. But the rule of law is the natural law which justifies the
use of political power and before which power itself as well as
resistance to arbitrary acts of those in authority must establish its
legitimacy: through the natural law alone can we solve the cru­
cial political problem of the legitimacy of power and the duty
of free persons to obey. Thus the rule of law, the paramount law
binding both the ruler and the ruled, necessarily implies the idea
of natural law as the critical norm for the existing positive legal
order and for the demand to change it, if it has become unjust.
The hope of a peaceful change of the legal status quo within each
nation as well as in the community of nations depends on the
acceptance of such a higher law that measures both the legal
rights of the status quo and the claims of those who would alter it;
and it measures them because it is based on natural reason, in
which all men participate. For the natural law, ultimately of
divine origin but revealed in the very order of being, is but the
rule of reason founded upon the rational and social nature of
man. Veritas facit legem: law is truth.

“ All men are born natural-law jurists.” This fact, which Berg-
bohm notes at the beginning of his great attack on the natural
law, should surely have shown an unbiased person that the very
essence of man as a moral, social being points to the nature of
law. For all men are born natural-law jurists because in the hu­
man soul lies the ineradicable demand that the law must live
in morality. All law must be just: only then can it obtain that
power which primarily holds together and continually renews
every community, and in particular every political community,
 CONCLUSION 267

the power to bind in conscience. But the proper function of the

natural-law doctrine is precisely to show forth the connection be­
tween morality and law. Consequently it must, for the sake of the
very existence of man and his concrete legally ordered com­
munities, ever recur, and it does in fact always return whenever
the genius of law seeks out its own foundations.
The foundation of law is justice. “ Truth grants or refuses the
highest crown to the products of positive legislation, and they
draw from truth their true moral force” (Franz Brentano). But
truth is conformity with reality. And just as the real and the true
are one, so too the true and the just are ultimately one. Veritas
facit legem. And in this profound sense of the unity of truth and
justice the words, “ And the truth shall make you free,” 1 are ap­
plicable to the community of men under law. True freedom con­
sists in being bound by justice.2
1 John 8:32.
2 But the most important lesson of this entire study of the history and philosophy
of the natural law may be succinctly stated in a paraphrase of a law of philosophical ex­
perience formulated by Etienne Gilson (The Unity of Philosophical Experience, p. 306):
“ The natural law always buries its undertakers.” Or, as Horace has expressed it (Epistles
I, x, 24): Naturam expellas furca, tamen usque recurret. "You may drive out nature
with a pitchfork, yet it will always returnl”
 Index
Abortion, 222 note Aristotle (continued)
Absolutism principles of equity, 18
attacked by rationalism, 108 St. Augustine and, 37
English common law and, 114 f. St. Thomas and, 31 note
the Enlightenment and, 78 f. skepticism and, ig f.
Hobbes and, 79, 81, 84-86 slavery, 9
modern totalitarianism and, 152 ff. totalitarianism of, 13, 19
natural law and, 90 wonder as beginning of philosophy, 3
positivism and, 128, 142, 250 and note
rationalism and, go, 108 Arriaga, 64, 197
restriction of law, 206 Associations as subject of rights, 207
Adler, Mortimer J.: on democracy, 259 Augustine, St., 37 f.: definition of eternal
note law, 180; justice, 144, 157; law, 37 f.;
Adultery, 239: Cooper on, 227 note; as Plato and, 37
juridical offense, 103; prohibited by Austin, John, 115
natural law, 65, 67, 121 Author, biographical sketch of, iii f.
Aequitas, or conscience, 27 f. Auto-limitation, 140 f.
Agnosticism: in empiricism, 124; of Hans
Kelsen, 146 f.; and rejection of nat­ Baer, L. von: on basis of law, 129
ural law, 110 f.; result of positivism, Bannez, compared to Liszt, 150
133; untenableness of, 133 Being, 162-90
Agreements, obligation of, 225 f. analogy of, 45, 58
Ahrens, A., 131 basis for human acts, 177 ff.
Albert the Great, St., 44 basis for morality, 202
Alcidamas, on human freedom, g existential and intentional, 167
Alexander of Hales, 42-44 foundation of natural law, 191
America, discovery of, 61 goodness and, 47-49, 184: not linked by
Analogy of being: rejected by Occam, 58; Hume, 113 ; Occam, 59
St. Thomas on, 45 law and; see Law and being
"Angelism” of Descartes, 87 f., 112 measure of knowledge, 164-69
Anselm of Canterbury, St., 42 norm of law, 188, igo
Arbitrariness of the lawmaker, 209 f. norm of morality, 186, 188
Aristotle, 11, 16-19 object of the sciences, 183-90
the beginning of philosophy, 3 oughtness and, 161-73, 178-83 and notes,
on education to virtue, 32 186 f., 211 f.: basis of, 171 f.; norm of
on entelechy, 46 note law, 188, 190; norm of morality, 186,
ethics and politics, 32 188; separated by Kelsen, 162
ethics of, 17 perfection of, 170, 172 f.
justice, 17, 32 truth and, 176, 184: not linked by Hume.
law and morality, 32 113 ; St. Thomas on, i6g
on metaphysics, 185 Bellarmine, St. Robert, 40, 60: epistemol­
metaphysics of, i6 f. ogy of, 63; lex naturalis and ius
natural law, 17 ff. naturale, 67
not understood by Pufendorf, 97 Bentham, Jeremy: attack on natural law,
opposed to the Sophists, 13, ig f. 110; and Locke, 90
269
270 IN D EX
Bergbohm: and historical school of law, Church, Catholic: and development of
115 ; and Kelsen, 103; natural law in­ ethics, vii; interpreter of revelation
herent in man, 133, 366; perpetuity of and moral law, vi; medium of salva­
natural-law idea, 315 ; pursuit after tion, 32, 34; not recognized as a per­
natural-law idea, 135, 215 fect society, 82; and secularism, 79
Bills of Rights, necessity of, 146 Cicero: lex nata, 23; on natural law, 23 f.
Binding, K.: empiricist concept of law, 124 and notes; popularizer of Stoicism, 21;
Biologism, 130 Roman jurists and, 26
Birth control, 254 Citizenship, purpose of, 32
Bittle, Celestine: on Aristotelian entelechy, City-state and education to virtue, 7 f.,
46 note; on Scholasticism, sg note 32 f.
Blackstone, Sir William: on natural law, Civitas maxima, 9, 15, 33: in Kelsen, 147,
n g note 163; in Roman thought, 29 f.; in Sen­
Bodin, Jean: modern concept of sover­ eca, 25
eignty, 145, 256 Coercion: F. von Martens on, 200 f.; use of,
Boland, Francis J.: on the common good, 208 f., 212
241 note Coke, Sir Edward: on natural law, 114 f.
Bombing of non-combatants, 223 note Common good
Bonham’s Case, 114 communities and the, 244, 266
Borrowing, 224 f. end of law, ig4 f.
Bracton, Henry de, 114 individual good and, 241
Brentano, Franz: on truth, 267 meaning of the term, 241 note
Brotherhood of man: in Alcidamas, 9; in purpose of politics, 266
Hippias, 9, 1 1 ; in Seneca, 24 f. the state and, 246
Common law and judicial supremacy, 260
Caesaropapism, 114 and note
Callicles, 8, 127: on injustice, 11 Common sense, manifestation of natural
Canon law, 204 f.: and English common law, 133 f.
law, 114; and natural law, 38, 114 Communism, Russian, 230, 235
Capitalism and private property, 257 f. Communities: common good and, 244;
Carlyle on medieval political principles, order of, 237, 242
262 note Community
Carneades: "the plank of,” 20 f., 224; posi­ common good and the, 244, 266
tivism of, 21, 33; skepticism of, 20 the individual and the, 236 f., 242 ff.
Categorical imperative, in Kant, 101 f. international, 241 f.
Catholic Church; see Church law and the, 245
Catholic social movement, 123 national; see Nation
Catholicism, opposed to totalitarianism, 153 perfection of man and the, 236 f., 242
Cathrein, Viktor: criticized by Haines, 162 protected by law, 210
note; definition of natural moral law, Comparative law, school of, 171
181 f.; on moral goodness, 50 Compulsion: F. von Martens on, 200 £.;
Causality, principle of, 184 use of, 208 f., 212
Celsus, 26 Connell, F. J.: on effects of original sin, 42
Certitude, moral, 252 note note
Changeableness of natural law (Grotius), Conscience, 12, 27 f.: debased, 66; and nat­
73 ural law, 35, 38; in St. Augustine, 38
Christian natural law, 34 note, 39, 259: in­ Constitution of the U.S., 198
fluenced by Roman law, 30 f.; influ­ Content of natural law, 215-46
enced by Stoicism, 21, 26, 34-36 Aristotle, 18 f.
Christian social theory, 123 borrowing, 224 f.
Christianity, natural-law idea influenced changing character of, 227-29
by, 34 Cooper, 227 note
Chroust, A.-H.: on Grotius, 71 notes Decalogue, 53, 221 f. and notes
 IN D EX 271
Content of natural law (continued) Decalogue (continued)
diversity of opinion concerning, 216 f., division of, 44 note
250 Duns Scotus, 58
form of government, 265 immutability of, 56 r. and note
Grotius, 73 f. incomplete statement of principles, 22s
immutability of, 221 Late Scholasticism, 65
killing, 221-24 numbering of the commandments, 52
known universally, 227 and note note
Late Scholasticism, 65 principles of natural law, 221 f. and notes
Leo X III on private property, 218 f„ St. Thomas on, 51-53, 56 £. and notes
233-35 Decretum of Gratian, 38
national rights, 240 Definitions of natural law: Cathrein, 181 f.;
necessary societies, 237 ff. Grotius, 71; Maritain, 181 note; Meyer,
necessity of the state, 240 181 note; Steffes, 181 note
observance of agreements, 225 f. Defoe, Robinson Crusoe, 80
personal liberty, 230 ff. Deism: and law, 75, 80; and rationalistic
in philosophia perennis, 227, 250 f. natural law, 64
in philosophy of law, 188 Demagogy of the Sophists, 7
Plato, 18 f. Democracy: as ideal government, 258 f.;
private property, 232-36, 265 and natural law, 265; St. Thomas on,
progress in determination of, 218 f. 220, 259 note; unfavorable to positiv­
Pufendorf, 96 ism, 250
in rationalism, 77, 228 £. Demons, belief in, 107 f.
Renard on, 229 note Deploige: on necessity for wisdom, 226
right of inheritance, 235 note; on variations in natural law, 227
Roman jurists, 28 note
St. Thomas, 53, 227 Dernburg, on private rights, 231
Scholastics, 73 Descartes, Rend, 86-88
Sophists, 18 “ angelism," 87 f., 112
Stammler on, 136 £., 229 note contrasted to St. Thomas, 86 f.
variations in, 18 f., 227 f. and note epistemology of, 87
wage contract, 265 "founder of modern philosophy,” 70
waging 01 war, 224 Grotius and, 74
Contraception, effects of, 254 individualism and rationalism, 86 ff., 112
Contracts, 225 f.: in private law, 205 "natural law,” 87 f.
Contradiction, principle of, 184 Scholasticism and, 70
Cooper, John M.: on uncertainty of ethics, Desing, 106
254 note; on universal moral code, 227 De Soto, 40
note Despotism, enlightened, 78 f., 82
Corpus iuris civilis, 38 Dictatorship, morality of, 251
Cosack, positivist, 231 Discovery of America, 61
Cox, Ignatius: on right and wrong, 218 note Disintegration of society, 34
Cronin, Michael, 179 note: on man’s nat­ Disorder, human tendency to, 253 f.
ural inclinations, 50 note Divine law: and human law, 4, 6; and nat­
Culture, source of, 241 ural law, 37 f.
Custom: and development of law, 1 1 1 ; and Duguit, Leon: approach to natural-law
ius gentium, 69; and origin of law, idea, 144 f.; justice and law, 143 £.;
116 f.; and positive law, 56 note; as limitations 011 the lawmaker, 141 ff.;
source of law, n 6 f. opposition to legal positivism, 142.
145; teleology of, 143 f.
Decalogue, 38, 73 Duns Scotus: morality and will of God, 58;
as conclusions of natural law, 51-53 Old Testament difficulties, 58; primacy
contents of natural law, 53, 65, 221 f. of the will, 57 £.
27a INDEX
Duties Epistemology of
ethical, 100 fi., 204 Bellarmine, 63
hierarchy of, 203 Descartes, 87
juridical, 100 ff. Hobbes, 82 f.
of marriage, 239 Hume, 112 f.
to oneself, 203 f. Kant, 102
to others, 204, 206, 208 Late Scholasticism, 62 f.
rights and, 204, 207, 243 notes: LeBuffe Locke, 90
and Hayes on, 192 note; of marriage, nominalism, 176
239; Pius IX on, 122 rationalism, 164
St. Thomas, 86 f.
Education: of the citizen, 78; to virtue, Thomistic philosophy, 164 ff.
7 f., 32 f., 54 f., 101, 195 f. Equality of all men, 9, 1 1, 209: among Ro­
Emperor as lex viva, 114 man jurists, 28: in Seneca, 24 f.
Empiricism, 124 f. Equity: judiciary practice and, 213; prin­
forerunner of relativism and skepticism, ciple of, 18
125 Ermann, H.: on the meaning of natural
in historical school of law, 124 law, 260
of Kelsen, 163 Essence and existence, 166-72: in God’s wis­
in legal philosophy, 124 f. dom and will, 168, 175, 178
of Locke, 90 f., 1 1 1 Essence of being and divine reason, 168
method of, 124 Eternal law
realism and, 166 Alexander of Hales, 43
Encyclicals: of Pope Leo X III, 123: social, components of, 46
123, 148 definition of, 180
Encyclopedia of Law by Holzendorf, 131 divine origin of, 35
End: final, 194 and note; of man, vii f.; exemplar of divine wisdom, 180
norm of human actions, 192 note, 193 f. historical school of law, 119
Ends: order of, 193; science of (see Teleol­ human law and, 200
ogy) Late Scholasticism, 63 ff.
Enforceability of duties, 100 ff. law of freedom, 175, 180 ff.
English common law law of necessity, 175, 180
absolutism and, 114 L Meyer on, 180 note
Catholic influence on, 114 misunderstood by Pufendorf, 97
the judiciary and, 260 and note natural law and, 638., 188, 197 note: in
natural law and, 114 f. St. Augustine, 37 f.; in St. Thomas, 86
in the New World, 115 natural moral law and, 46, 176, 179-82
the responsa and, 114 not binding, 119
Roman law and, 30 note positive law and, 56
English Parliament, 204, 260 note replaced by reason, 88
Enlightenment, the St. Augustine, 37 f., 180
codification of laws, 99 St. Thomas, 45 f., 56, 86, 180 and note
despotism and, 78 Stoics, 22 f., 26 f.
natural law and, 78 Ethics (see also Morality)
“ panjurism” of, 210 of Aristotle, 17
Sophist doctrine and, 8 basis of Stoicism, 22
state absolutism and, 78 f. certainty of, 252 note
Entelechy: Aristotelian, 46 note; Thomis- Christian influence on, 263
tic, 46, 170, 172 f. development of, vii
Epictetus, 21, 24 first principle of, 178 note, 186, 197 f.
Epicurus: contrasted to Hobbes, 82; justice note
and law, 10 f.; positivist, 33 insufficiency of, vi
Epistemology, foundation of natural law. of Kant, 100-103
163 ff. law and, 12 1, 126
 INDEX *73
Ethics (continued) Fathers of the Church (continued)
of materialism, 126 f. natural law, 35 ff.
metaphysics and, 162, 177 f. and note, original sin, 33, 36
186 state of nature, 36
natural social, 186 Stoic philosophy and, 35 f.
in Occam, 59 Felicitas, final end, ig5 and note
other sciences and, 203 Flatus vocis, 167
Paulsen on, 130 and note Force, use of, 208
philosophy of law, 188 Form and matter: in Aristotle, 16 f.; in St.
and politics in Aristotle, 32 Thomas, 169 f.
positive law and, 55 Formalism of Kant, 103
of positivism, 126, 130 Fornication: Cooper on, 227 note; immoral­
of St. Thomas, 46 If. ity of, 181
scope of, 183, 206 Fortescue, Sir John, 114
social, 188 Freedom: autonomous, 100 ff.; and justice,
of Thomasius, 95, 98 267; and private property, 234
Ethics by Spinoza, 110 French Civil Code, 138
Euthanasia, 222 note French Revolution: its appeal to natural
Exegesis of the Old Testament, 57 note: law, 80, m ; Rousseau’s influence on,
Alexander of Hales, 42 ff.; Duns Scotus, 92; and state of nature, 79 f.
58; St. Thomas, 57 Friendship, 209
Existence and essence, 166-72: in God’s will
and wisdom, 168, 175, 178 Gaius, 26, 29: ius naturae, 27
Expansion of trade, 61 Gaps in the positive law, 249: Aristotle, 18;
Experience, necessity of, 226, 228: basis of lack of, 260; provided for in French
Taparelli’s doctrine, 218; St. Thomas Civil Code, 138; supplied by the nat­
on, 166, 216 and note, 218 ural law, 18, 138
Garrigou-Lagrange, on Thomistic teleol­
Factuality, no basis for right, 172 ogy, 45 note
Faculties, human, 179 note German Civil Code, 138
Family Germanic law: dire need in, 225; and ju ­
in individualism, 81 dicial supremacy, 260; private prop­
Leo X III on, 235 erty in, 258; sacred character of, 3;
natural law and, 28, 99, 238 f. social reforms, 258
prior to the state, 238 f. Gilson, Etienne: on Christian philosophy,
private property and, 235, 258 35 note; on metaphysics, 31; on per­
product of love, 210 f. manency of natural law, 267 note
protected by Fourth Commandment, 52 God
rights of, 239 author of natural law, 192 note
Russian Communism and the, 235 the Decalogue and, 56 f. and notes
state and, 238 f. in deism, 75 f.
virtues of, 245 end of community life, 237
Farrell, Walter, eternal law and, 119
the Decalogue, 57 note final end of human life, 173
democracy, 259 note materialist concept of, 126
essence of natural moral law, 181 f. note natural law and, 64, 70 f. and note.
human law and natural law, 213 note natural law and essence of, 50 f.
law, morality, and reason, 2 11 note perfect Being, 170, 173
man’s natural inclinations, 50 note personal, 34
morality of human law, 213 note power of, 62
reason and humanity, 193 source of being, 168
Fathers of the Church union with, 237
aim of, 36 f. will of, 58 f., 168, 175 f., 178
fallen nature, 36 wisdom of, 168, 175, 178
274 INDEX
Goodness Historical school of law
being and, 47-49, 184: not linked by antirevolutionary, 115, 118 f.
Hume, 113; in Occam, 59 empiricism and, 124
essence of, 170, 172 eternal law, 119
object of law, 195 f. natural law, 257 f.
reason and, 221 and note, 226 note nature of law, n o f.
source of, 50 not positivist, 115
Government: constitutional, 261 f.; posi­ Occam and, 119
tivism and systems of, 250; St. Thomas offshoot of romantic movement, 110,
on ideal form of, 259 note; systems of, “5
258 f. 265; tyrannical, 265 positivism in, 126
Grace, necessity of, vii f. rejection of natural law, 1 1 1
Gratian, 65: Decretum, 38 Hobbes, Thomas, 82-86
Gratitude: ethical duty, 100, 204; use of absolutism, 61
force and, 68, 209 Epicurus contrasted to, 82
Grecian law: respect accorded to, 7 f.; sa­ epistemology of, 83 f.
cred character of, 3 foundation for ethics, 77
Greek philosophy: defects of, 32; of law, Grotius and, 71 note
off. human nature, 83, 85
Grotius, Hugo, 70-74, 197 human rights, 231
content of natural law, 73 f. individual rights, 81
Descartes and, 74 individualism of, 84
God and natural law, 64, 70 f. and note Leviathan, 60, 83 and note
importance of, 73 f. Locke contrasted to, 88
international law, 73 f., 131 Machiavelli and, 59 f.
law and morality, 72 modern concept of sovereignty, 145
natural law, 64, 70 ff., 197 note natural-law idea, 84 f.
obligation of natural law, ig7 note “ nature” opposed to “order,” 85
Occam and Hobbes, 71 note nominalism of, 82 f., 86
primacy of the will, 72 Occam and, 59-61, 85
rationalism of, 73 f. pessimism of, 82
Scholasticism and, 71 f. and notes rationalism of, 84
Suarez-Vasquez controversy, 71 f. Rousseau contrasted to, 91
Vittoria and, 73 secularism, 79
Gumplowicz, on the state and positive law, social contract, 83 ff.
127 Sophist ideas and, 11
Gustafson, G.: on man’s natural inclina­ the state, 91
tions, 49 note; on Thomistic ethics, 48 state absolutism and, 79, 81, 84, 86
note state of nature, 83-85, 88, gi
status civilis and status naturalis, 91
Holzendorf, Encyclopedia of Law, 131
Haines, C. G., 162 note Honor, 232
Happiness, final end, 192 note, ig4 and Horace, on perpetuity of natural law, 267
note note
Hartmann, Nicolai, 137 Hostility, state of, 223
Hauriou, Maurice, 137 Huber, on totalitarian state, 154
Hayes, Carlton J.: on the propertyless, 234 Human inclinations, 49 f. and notes, 178 f.
note notes, 181 f. note
Hayes, James V.: on rights and duties, 192 Human law (see also Positive law)
note; on rights and law, 191 f. note divine law and, 4, 6
Heraclitus, 5 ff. Heraclitus, 6
Heretics, punishment of, 212 moral basis of, 4
Hippias, on common brotherhood of man, and natural law: in Christian tradition,
9, 11 250; Farrell on, 213 note; in Heracli-
 INDEX 275
Human law (continued) Individualism (continued)
tus, 6: Pius IX on, 123; in Sophocles, Hobbes, 81, 84
12 f. note Hume, 113
necessity of, 66 f. Kant, 100 ff.
Human nature and supernatural order, viii Locke, 8g f.
Humanism, decline of, 75 nature of man, 81 f.
Hume, David in the New World, 115
attack on natural law, 110, 113 f. obligation of law, 199
epistemology of, 112 f. rationalism and, 76, 78
human nature, 112 f. social revolutionaries and, 80
individualism of, 113 Sophists, 9 f., 13
Locke and, 90 state of nature, 33, 76 ff., 80 f.
notion of morality, 118 f. Stoics, 21
positivism of, 113 Thomasius, 98
primacy of the passions, 110 Inheritance, right of, 235
reaction against Hobbes’ absolutism, 91 Injustice of law, in Callicles, 11
reason opposed to nature, 112 Institutiones iuris naturalis, 186 f.
servitude of reason, 112 Intellect (see also Reason)
utilitarianism, 113 being and, 63, 177 f.
on virtue, 112 operation of, 164 f.
primacy of, 50, 56, 62, 176 ff.
Ideal government, 220 self-sufficiency of, 87
Idolatry, 256 speculative and practical, 177 f., 185 f.
Ignorance and culpability, 253 note (see also Reason)
Illegitimate birth, 213 will and, 176-78: in Grotius, 72; in St.
Immorality, effects of, 253 and note Thomas, 195 note; in Vasquez, 196
Immutability of natural law, 221 ff., 224 Intention of the lawmaker, 213: in posi­
Alexander of Hales, 42-44 tivism, 139 f.
Aristotle, 17 Intercourse, Hebrew idiom for, 184 note
Blackstone, 115 note International community, 241 f.
Cicero, 24 note International law
Grotius, 73 based on natural law, 242
Heraclitus, 6 civil war and, 224
Hippias, g Grotius’ theory of law and, 73 f., 151
Kleutgen, 51 Late Scholastics, 68 f.
norm for positive law, 265 Liszt on, 149
St. Augustine, 37 natural law and, 96, 12 1, 149 ff., 242
St. Thomas, 56 in positivism, 128, 149
Sophists, 10 protection of minorities, 150
Sophocles, 12 f. note as a science, 184
Thomistic philosophy, 168 source of, 205
Incest, 227 note, 229 Intolerance, 212
Inclinations, criterion for human acts, 49 f. Ius civile, 28
and notes, 178 f. notes, 181 f. note Ius gentium, 25
Independence of small nations, 265 custom and, 6g
Individual: and community, 236 f., 242 ff.; after discovery of America, 61
rights of, 242 f. Grotius, 74
Individualism international private law and, 69
characteristic of age of natural law, 105- ius naturae and, 29
109 ius naturale and, 29, 68
consequences of, gg f., 105 ff. Late Scholasticism, 68 f.
Descartes, 87 natural law and, 68 f.
disparagement of the state, ig6, 245 positive law, 68 f.
of the Enlightenment, 76 ff., gg quasi-positive law, 68 f.
276 INDEX
Ius gentium (continued) Justice (continued)
among the Romans, 28 f. foundation of law, 266 f.
Scholasticism, 40 foundation of the state, 243 and note
Ius naturae, 30: in the Enlightenment, 7g; 253
and ius gentium, 29; among Roman founded on knowledge, 12
jurists, 27 ff. freedom and, 267
Ius naturale, 60 Grotius, 72
Alexander of Hales, 42 f. impossible in materialism, 127
cognitive principle of, 221 Late Scholasticism, 67 f., 72
in deism, 80 law and, 67 f.
distinguished from ius gentium, 68 legal, 13 {., 17, 67: Cicero on, 23
distinguished from lex naturalis, 67, 71 f. Locke, 89
divine origin of, 38 love and, 208
Grotius, 71 f. man’s thirst for, 134
human law and, 38 natural: in Aristotle, 13 f., 17; Cicero on
immutability of, 42 f. 23; in the Sophists, 8 f.
ius gentium and, 29, 68 Plato, 13
mores and, 38 in positivism, 248
object of philosophy of law, 189 punishment and, 234
St, Augustine, 38 f. reason and, 221 and note, 226
St. Thomas, 53 rights and, gg
Scholasticism, 40 St. Augustine, 144, 137
Stoicism, 26 ff. St. Thomas, 53, 203, 206, 255
Ius naturale perenne, 151 separated from law, 130
social consciousness and, 144
Jellinek: legal theory and social theory, Stammler’s notion of, 136
137; limitations on the lawmaker, 140 truth and, 267
Jhering, Rudolf von: on right, 207; on St. Justinian (emperor) and Roman law, 30
Thomas, 120
John Chrysostom, St.: on natural law, 35 f. Kant, Immanuel, 100-iog
Judiciary age of natural law and, 93
in Anglo Saxon countries, 41 f. categorical imperative, 101 f.
application of equity, 213 compared with Stammler, 133 f.
application of natural law, 18, 132 epistemology, 102
in French Civil Code, 138 ethical and juridical duties, 100 ff.
interpretation of the law, 213 formalism, 103
natural law and, 260-62 ignorant of Scholasticism, 93
supremacy of the, 260 f. individual liberty, 100 f. and note
in the United States, 42, ig8, 248 f. individualism of, 100 ff.
Jurisprudence: analytical, tgg; as a science, law and morality, 100 ff., 121
184 marriage and parenthood, 103 f,
Jurists: duties of, 214; Ulpian on, 214 natural-law idea, 102, 105
Jury, 227 nineteenth century influenced by, 120
Justice noumena and phenomena, 136
aim of, 13 principle of ethics, 163
Aristotle, 13, 17, 32 rationalism of, 87 f., 102 f.
Cicero, 23 Rousseau’s influence on, 103
commutative, 17, 67, 89 state of nature, 104 f.
criterion for, 132 theory of law, 103
defense against totalitarianism, 264. Kelsen, Hans
distinguished from social virtues, 204 agnosticism of, 146 f.
distributive, 17, 67, 246 Bergbohm and, 103
Duguit’s concept of, 143 f. natural-law idea, 147
Epicurus, 10 notion of law, 163
 INDEX 277
Kelsen, Hans (continued) Law (continued)
Occam and, 163 founded on social being, 244
rationalism of, 162 f. Germanic; see Germanic law
separation of oughtness from being, 162 Grecian: respect accorded to, 7 f.; sacred
source of law, 146 character of, 3
Ketteler, von: and social reform, 258 as guide of life, 2 11 f. and note
Kleutgen, on immutability of natural law, Heraclitus, 6
51 history of, 184
Knowledge: basis of virtue, 12: measure of, human; see Human law
164-69 immoral, 213, 255 f. and note
Kohler: and Bergbohm, 215; on Late Scho­ individual rights and, 210
lasticism, 62 international; see International law
Krabbe, H.: on source of law, 146 of irrational nature, 192
justice and, 67 f., 226
Laski, Harold J., 146 Kant’s concept of, 100 ff.
Late Scholasticism Late Scholasticism, 63 ff., 67 f.
the changing world and, 61 f. limitation of, 208
contents of natural law, 65 materialistic concept of, 125, 127 f.
epistemology of, 62 f. metaphysical basis of, 187
eternal law, 63 If. moral: divine sanction of, 122; inter­
Grotius and, 71 f. and notes preter of, vi; see Natural moral law
ius gentium, 68 f. natural; see Natural law
justice, 67 f., 72 natural moral; see Natural moral law
law and morality, 66 If., 7a nature of, 55 f., 67 £., 110 f., 191-201
natural law, 62 ft. necessarily moral, 213
Occamism and, 62 f. obligation of, 68, 192, 197 note, 199 f.,
power of God, 62 208 f., 255 f.: Late Scholastics, 66; in
Protestant Revolt and, 60 St. Thomas, 55; in Socrates, 12
St. Thomas and, 62 permanence of the community and, 210
Late Scholastics, duty of, 62 philosophy of, 124 f., 188, 191: and ius
Law naturale, 189; and science of law,
arbitrariness of, 20 188-90
based in nature, 22 f. postive; see Postive law
canon, 204 f.: and English common law, positivist concept of, 248
114; and natural law, 38, 114 positivist criterion for, 138 f.
characteristic of each nation, 116 principle of, 189
as check on the lawmaker, 209 f. private, 205
Cicero’s definition of, 24 note pure, 214 f.
civil, 96 purpose of, 210
conformity with right reason; see Law for rational creatures, 192 ff.
and reason Roman; see Roman law
constitutional, 248 f. the romantic movement, n o f.
contrasted to love, 209 sacred and profane, 4
criterion for justice of, 132 sacred character of, 3 f.
custom and, 56 note St. Thomas; see Thomas Aquinas, St.
customary, 116-19 science of, u 6 f., 184, 188-go, 218: and
definitions of, 24 note, 192, 195 note philosophy of law, 188-90
delimitation of rights, 208 separated from right, 130
development of, 116 sociological school of, 244
divine origin of, 3 f., 24 note; see also sources of, 116, 146, 150
Natural law Stammler on basis of, 132
enforceability of, 156 the Stoics, 22 ff.
eternal; see Eternal law Thomasius’ notion of, 98
form and content distinguished, 135 f. unjust: binding force of, 12, 55, 66, 199 f.,
278 INDEX
Law (continued) Law and will
255 f. and note; enforceability of, 156 f. auto-limitation and, 140 f.
unreasonable, 195, 199 f. based on nominalist theory, 169
validity of, 261 f. Duns Scotus, 57 f.
without moral content, 214 f. historical school of law, 119
Law and being, 41, 145, 190 (see also Ought- Hobbes, 85
ness and being) law and r-eason and, 40 f.
Kelsen, 146 f. limitations on the lawmaker, 140 ff.
Kleutgen, 51 in modern totalitarianism, 152, 264
Late Scholasticism, 62 f., 65 nature of law, 195, 198-201
St. Augustine, 37 Occam, 58 ff., 176, 197
St. Thomas, 45 f., 48 f. and notes in positivism, 41, 129, 138 f., 176, 247
Thomistic teaching, 147 refuted by philosophy, 176 ff.
Law and morality, 41, 202-14, 266 f. in the Renaissance, 61
Aristotle, 32 St. Thomas, 45, 51, 195 note
in civil codes, 132 Lawmaker
enforceability of law, 208 f., 212 arbitrariness of, 209 f.
essential being and, 192 intention of, 56, 213: in positivism, 139
Farrell, 2 11 note judiciary in the U.S. and, 248 f.
Grotius, 72 limitations on, 128, 140 ff., 145, 148, 209 f.
Gumplowicz, 127 natural law and, 251, 256, 265
inseparable, 213 nature of law, 194 f.
Late Scholasticism, 63 f., 66 if., 72 necessity of, 194 f., 251
in materialism, 127 prudence in, 254 f., 257
natural-law idea and, 161 LeBuffe, Francis P.: on duties and rights,
in nineteenth century, 121 f. ig2 note; on rights and law, 191 f. note
not distinguished in antiquity, 32 f. Leclercq, Jacques; on immoral law, 256 f.
Occam, 59 note; on necessary societies, 238; on
in positivism, 126, 128 private property, 234 notes
Roman jurists, 29 Legal reason, development of, 227
St. Thomas, 55 f. Legality: formal, 139; internal morality
separated: by Kant, 100 ff., 121; in newer and, 205; legitimacy and, 204
natural law, 93; by rationalism, 108; by Legitimacy and legality, 204
Thomasius, 98, 101, 12 1; by totali­ Leibnitz, Pufendorf condemned by, 96
tarianism, 155 f. Leo X III (pope): natural-law idea, 123; on
unity safeguarded, 187 private property, 218 f., 233-35; Rerum
Law and reason, 181 f. novarum, 123; and revival of natural-
based on realistic epistemology, 168 f. law idea, 122; on societies within the
Cicero, 23, 24 note state, 244 f. note
dignity of man, 199 Leviathan by Hobbes, 60, 83 and note
divine source of, 168 Lex aeterna, 26; see also Eternal law
Epictetus, 24 Lex casus, 28
Farrell, 193 note, 2 11 note Lex indicans, 64, 71, 196
founded on being, 266 Lex nata, 23 and note
Late Scholasticism, 62 ff. Lex naturae, and the Roman jurists, 27
law and will and, 40 f. Lex naturalis
nature of law and, 192 ff., 198-201 Alexander of Hales, 42 f.
Pufendorf, 95 cognitive principle of, 221
Roman jurists, 27 f. distinguished from ius naturale, 67, 71 f.,
St. Augustine, 37 162
St. Thomas, 47 f., 51, 55 f., 195 note immutability of, 42 f.
Stammler, 131 Kant, 102
Stoics, 22 positive law and, 55; see also Positive law
Vasquez, 196 and natural law
 INDEX *79
Lex naturalis (continued) Marriage (continued)
St. Thomas, 53 £E. not a natural-law institution, 99
Scholasticism, 40 rights arising from, 239
Stoicism, 26 ff. in Soviet Russia, 170 f., 239
Lex praecipiens, 64, 196 Martens, F. von: on compulsion, 200 f.
Lex viva, emperor as, 114 Marx, Karl: inconsistency of, 91; positivist,
Lex-ratio, 40; see also Law and reason 125
Lex-voluntas, 40; see also Law and will Materialism, 126-28
Liability arising from contracts, 225 f. concept of law, 125, 127 f.
Liberalism: disparagement of the state, of Descartes, 88
196; obligation of law, 199 ethics of, 126 f.
Liberty: personal, 232; of the propertyless, of Kant, 88
258 metaphysics of, 126
Life and law, 2 11 f. and note result of “ angelism,” 88
Liszt, Franz von: compared to Late Scholas­ Matter and form: in Aristotle, 16 f.; in St.
tics, 150; on international law, 149 Thomas, 169 f.
Locke, John, 88-91 “ Mercy killing,” 222 note
common good and individual rights, 89 f. Merkel, A.: positivist, 131
contrasted to Hobbes and Spinoza, 88 Messner, Johannes: on Christian philoso­
distrustful of reason, 11 1 phy, 35 note
empiricism, 90 f., 111 Metaphysics
forerunner of Hume and Bentham, 90 of Aristotle, 16 f.
Hobbes and, 88, 91 Aristotle on, 185
individualist in philosophy, 88 contrasted to physics, 183, 185
natural-law idea, 88 ff. denied by empiricism, 124
reaction against Hobbes’ absolutism, 91 ethics and, 162, 177 f. and note, 186
the senses in cognition, 165 note foundation of: all knowledge, 183; ethics,
social contract, 8g 162; natural-law idea, 5, 215; the sci­
state of nature, 88 f. ences, 183 ff.
Logos, 6, 27, 29 of Locke, 90
Louis XIV (king of France), 198 in materialism, 126
Love: 01 God, 51; and justice, 208; and law, necessity of, 39
209 of Occam, 58 f.
philosophy of law and, 188, igo
McDonald, William J.: on private prop­ of Plato, 14, 16
erty, 236 note queen of the sciences, 31 and note
Machiavelli: and Hobbes, 60; law and will, relation to natural law, 161 ff.
61; and Occam, 59 f.; The Prince, 60 of St. Augustine, 37
Majority, will of the, 141 of St. Thomas, 45, 47 f. and note
Manslaughter, 121 social, 188
Marcian, ius naturae, 27 f. Meyer, Hans: definition of natural law,
Marcus Aurelius, 21: on world society, 25 181 note; on eternal law, 180 note
Maria Theresa, morals commissions of, 108 Middle Ages and intoleration, 212
Maritain, Jacques: definition of natural Miltner, Charles C.: on duties to oneself,
law, 181 note; on Descartes, 87; on 203 note
pkilosophia perennis, 31 note; on prin­ Minority, protection of the, 141, 148, 150
ciples of natural law, 227 note Monarchy, 258
Marriage Monism: abandoned by positivism, 249;
contract of, 239 and note juristic, 155
duties of, 239 Montesquieu, reaction against absolutism,
historical idea of, 171 91
illegitimate birth and, 213 Moral law: divine sanction of, 122; inter­
Kant’s conception of, 103 f. preter of, vi; see also Natural moral
in natural law, 28, 67 law
280 INDEX
Morality (see also Ethics) Natural law (continued)
among the ancients, 32 f. by Roman law, 30 f.; influenced by
in Aristotle, 17 Stoicism, 21, 26, 34-36
based on knowledge, 177 f. cognitive principle of, 229 f.
based on metaphysics, 162 common sense and, 133 f.
basis of, 202 communities in, 237 f.
biology and, 203 completing positive law, 18, 138
of external acts, 206 conformity of human faculties to, 179
external legality and, 205 note
Hume’s notion of, 112 f. conscience and, 35, 38
impossible in materialism, 126 f. constitutional government and, 261 f.
the individual and, 108 content of; see Content
inherent in law, 213 definitions of, 71, 181 f. and note
in Kant, 103 democracy and, 265
law and; see Law and morality dependent upon God, 197 note
the observance of the natural order, Descartes on, 87 f.
180-82 and notes dictate of common sense, 90
in Occam, 59 different names for, 120 f., 150 f.
Other sciences and, 203 diversity of systems of, 105 ff.
positive law and, 202 divine essence and, 50 r.
private law and, 205 divine law and, 37 f.
reason and, 47 ff. divine origin of, 192 note, 266: in the
in St. Thomas, 46 ff. Church Fathers, 35; in Grotius, 71; in
separated from law; see Law and moral­ St. Augustine, 37; in Thomasius, 99
ity divine reason and, 168
without basis in human nature, 113 essence of, 220 f.
Mores: changeableness of, 39; and develop­ esteemed by the Enlightenment, 78
ment of law, 1 1 1 ; and ius naturale, 38; eternal law and, 63 ff., 188, 197 note: in
and law, 3, 32 St. Augustine, 347 f.; in St. Thomas, 86
"Mortall God” of Hobbes, 83 f. note, 86 family in, 28, 99, 238 f.
Muirhead, J. H.: on rights and law, 191 form of government and, 265
note foundation of science of law, 187
Murder, 221-24: Cooper on, 227 note foundation of the state, 246
as framework law, 264 f.
Name, good, 232 French Revolution and, 79 f., 111
Nation Gilson on permanency of, 267 note
autonomy of, 148 f. historical school of law and, 117 ft'., 257 f.
independence of, 265 Hobbes’ denial of, 82, 85 f.
international community and, 241 f. Horace on permanency of, 267 note
right to protection, 150 human law and; see Human law
state and, 238 human rights, 243 note
true society, 240 immutability of; see Immutability
Natura deleta, 60, 65 individualistic, 33, 78
Natura vulnerata, 66 international law and, 96, 121, 149 ff., 242
Natural law, ius gentium and, 68 f.
age of, 92 ff. judiciary and, 42, 248 f., 260-62
attacked by Hume and Bentham, 110 and the lawmaker, 256, 265: limitations
based on essential being, 191 on, 141 ff., 145 f., 148; necessity of, 251
basis of international law, 242 laws of societies and, 244
binding force of, 158, 180 f. note, 197 note lex indicans, 64, 96
Blackstone on, 115 note man’s essential nature, 63 f.
canon law and, 38, 114 metaphysical, 33
with changing content, 227-29 metaphysics and, 5
Christian, 34 note, 39, 259: influenced morality of human lawTand, 214
 INDEX *8i
Natural law (continued) Natural moral law
mutability of (according to Occam), 5g contents of, 221
name abused by totalitarianism, 153 f. definitions of, 181 f. and note
names used for, 120 f., 150 divine origin of, 35
natural moral law and, 186 f., 214, 229 effects of violations of, 253 note
note essence of, 181 f. note, 220 f.
nature of, 216 eternal law and, 46, 176, 179-82
norm for human law, 16, 256, 265 Farrell on, 181 f. note
as not-applicable law, 260 first principle of, 178 note, 186, 197 f.
object of philosophy of law, 190 note
obligation of, 158, 180 f. note, 197 note natural law and, 186 f., 214, 229 note
Old Testament difficulties and, 42 ft., obligation of, 46, 197 f. note
56 ff., 217 possibility of, 177
opposed by positivism, 250 Scholasticism, 46 f.
original sin and, 54 and note, 00 state and, 240
in philosophia perennis, 250 f. Natural-law idea
pluralism and, 244 Alexander of Hales, 42-44
political power and, 266 antiquity of, 3
positive law and; see Positive law and Aristotle, 17 ff.
natural law attacked: by historical school of law,
positivist concept of, 126 115-20; by Hume, 113 f.
practical jurist and, 260 Christian influences on, 34
primacy of the intellect and, 177 ff. Christian social theory and, 123
primary and secondary, 33, 36, 44 the Church Fathers, 35 ff.
principles of; see Principles of natural confused in the age of natural law, 93
law defense against totalitarianism, 264
private property in, 67, 233 ff., 257 f., dependent on metaphysics, 215
265 development of, 3 f., 218 f.
progress toward perfection and, 2gg note Duguit’s approach to, 144 f.
prohibitive precepts of, 66, 251, 255 f., Duns Scotus, 58
262 in English common law, 114 f.
protection of the minority in, 14 1, 148, in the Enlightenment, 78, 80
150 Grotius, 71-73
Pufendorf’s contempt for, 122 Heraclitus, 6
purpose of, 180 f. note Hobbes, 84-86
rationalist school of, 258 f. immortality of, 134 f.
reappearance of, 145, 150 ff. in individualism, 75-82, 105
relation of metaphysics, 161 ff. inherent in common sense, 133 f.
rights of inheritance in, 235 in international law, 149 ff.
Roman law and, 26-30 Kant, 102, 105, 147
St. Paul on, 134 Late Scholasticism, 40, 60, 62-68
Saurez on, 64 f., 70 legal positivism and, 247
source of, 17 Locke, 88 ff.
state of nature, 25, 36, 53, 76 ff., 80, 95 f. morality of law and, 267
Thomasius’ contempt for, 122 in nineteenth century, 40, 121
transcendent law, 266 Occam, 59
true law, 196 f. opponents of natural law, 132 f., 137
two forms of, 5, 33 opposed to totalitarianism, 153 ff.
tyrannical government and, 265 perpetuity of, 215, 219
the United Nations Organization and, in philosophia perennis, 31, 250 f.
265 in philosophy of law, 189
validity of, 261 f. Plato, 15 f., 19
Vasquez’s concept of, ig6 as political theory, 80, go
wage contract in, 265 in positivism, 41, 133-35, *28 f.
28s INDEX
Natural-law idea (continued) Nominalism, 41, 164
Pufendorf, 95 fl. Grotius, 72
in rationalism, 76 ff., 105-9, 228 f. Hobbes, 82 f., 86
refuge of: in Catholic moral philosophy, Hume, 112, 114
120; in philosophia perennis, 39, 120, Kant, 102
122, 215; against positivism, 109, 133; Locke, 89
in Scholasticism, 31, 39 in newer natural law, 93
rejected by the Skeptics, 20 psychology of, 176
Roman jurists, 27 ff. Pufendorf, 97
Roman law, 27 ff., 38 will as the nobler faculty, 176
St. Augustine, 37 f. Nomoi, 7, n f .
St. John Chrysostom, 35 f. Non-law, 66, 251, 255 f.
St. Paul, 35 Normological school of law, 171 f.
St. Thomas, 45-57 Nous of Aristotle, 37
Scholasticism, 31, 39 ff.
in social theories, 137 Obedience, reasonableness of, 199
Sophists, 9 f. Obligation: of agreements, 225 f.; of law
Stammler, 136 f. (see Law, Natural law, Natural moral
Stoicism, 22 f., 25 f. law)
Suarez, 64 f. Occam, William of, 58 ff.
Thomasius, 99 Duns Scotus and, 58
Trendelenburg, 122 ethics of, 59
Vasquez, 64 Grotius and, 71 note
Nature historical school of law and, 119
fallen: Alexander of Hales, 44; Church Hobbes and, 59 f., 85
Fathers, 36; Late Scholastics, 66; Prot­ Kelsen and, 163
estantism, 60, 65; St. Thomas, 54 law as will, 59 f., 169, 176, 197
human: Hobbes’ notion of, 83, 85; Machiavelli and, 59 f.
Hume’s notion of, 112 L ; in philoso­ metaphysics of, 58 f.
phia perennis, 254; principle of nat­ primacy of the will, 58 ff.
ural law, 190 (see Being, Oughtness Occamism, effects of: on Hobbes, 85; on
and being); Spinoza’s view of, 85 the Protestant Revolt, 60; on the Ren­
opposed to ’‘reason" and “ order,” 85 aissance, 60 f.; on theology and philos­
state of; see State of nature ophy, 60 f.
totalitarian concept of, 154 Occupational groups, 238
Nature of law Old Testament: Alexander of Hales, 42 ff.;
for common good, 194, 200 difficult passages in, 42 ff., 56 ff., 217;
ends of human acts and, 193 f. Duns Scotus, 58; exegesis of, 42 ff.,
in historical school of law, n o f. 57 f. and note; St. Thomas, 57
law and right, 191 and note Optimism: of Locke, 88 f.; of Rousseau,
lawgiver, 194 f. 91 f.
as measure of acts, ig2 Order: in creation, 173; natural and super­
ordinance of reason, 192-95, 198-200; see natural, 60 f. note
also Law and reason, Reason Ordo rerum, 150: replaced by reason, 87 f.
promulgation of law, 195 Original sin: in Alexander of Hales, 44;
reason and will, 195 and note, 198 Catholic teaching, 54 note; in the
Vasquez, 196 Church Fathers, 33, 36; Protestant
will of the lawgiver, 195 teaching, 60, 65; in St. Thomas, 54
“ Nature of the case,” 148, 150 Oughtness and being, 161-73, 178-83 and
Need, dire, 225 notes, 186 f., 2 11: basis of, 171 f.; norm
Neill, Thomas P.: on human rights, 142 of law, 188, igo; norm of morality, 186,
note 188; separated by Kelsen, 162
Nell-Bruening, iii: on man’s supernatural Ownership: joint, 258; necessity of, 233-35
order, 60 f. note and notes; titles of, 233 and note
 INDEX 283

“ Panjurism” of the Enlightenment, 210 Pius X I (pope): Mit brennender Sorge, 157;
Pantheism of Stoicism, 23, 25 and note on positive law and natural law, 157;
Parenthood, Kant on, 104 principle of social philosophy, 220
Parents, rights of, 239 note; Quadragesimo anno, 123
Parliament, supremacy of English, 204, “ Plank of Carneades,” 20 f., 224
260 note Plato, 11
Passions: practical reason and the, 227 note, metaphysics of, 14, 16
228; primacy of the, 110, 112 natural justice, 14 f.
Paul, St.: on natural law, 35, 134 natural law, 15 f., 19
Paulsen, Friedrich: on moral philosophy, positive law, ig
130 and note respect for the law, 7 f.
Paulus, 26: ius naturae, 27 f. St. Augustine and, 37
Perfection of being, 170, 172 f. skepticism opposed by, ig f.
Perjury, 121 slavery, g
Permanence of the community, 210 Sophists opposed by, 13, 15 f., 19 f.
Person, subject of right, 207 totalitarianism, 13, 19
Personal God, 34 Pluralism, 244
Personality Police-state, 81, 206: effect of rationalism
Christian, 34 on, 108; of the Enlightenment, 7g
human rights and, 230-32 Polis, 7 ff., 32
liberty and, 232 Politics, ig6, 263 f.
of man, 229-32 Pomponazzi, 61
prerequisite of all law, 230 Popes, encyclicals of, 123, 148
private property and, 232-36 Positive law
root of honor, 232 Aristotle, 17 ff.
self-defense and, 231 ascertainment of right, 2og
Pesch, Heinrich, 123 binding force of, 66, 143, 255-57
Petavius, 62 changeableness of, 17 f.
Pfaff, on French Revolution, 80 in Christian philosophy, tgg f.
Philosophia perennis, 30 f. and note completeness of, 260
balance of, 2it in conflict with natural law, 262
completeness of, 211 conscience and, 28
content of natural law, 250 f. custom and, g6 note
development of legal reason, 227 customary law and, 116 f.
ideal government, 220 determination of natural law, 262
natural law, 31, 250 f. diversity of, 217
origin of the term, 30 note education in virtue, 54. f., tgg f.
refuge of natural-law idea, 3g, 120, 122, eternal law and, g6
215: in the face of positivism, 109, external conduct and, 2og f.
*33 family and, 239
state of nature unimportant in, 218 founded on natural law; see Positive law
Philosophy and natural law
Christian, 23 f. note gaps in; see Gaps in the positive law
defects of Greek, 32 Gumplowicz on, 127
of right and of law distinguished, igt human personality and, 230-32
scholastic; see Scholasticism imperfections of, 18
social, 186 ff.: and moral philosophy, 137; inadequacy of, 138
and natural law, 244 individual rights and, 243 and notes
unsettled condition of, 130 influenced by Christian ethics, 263
Physics: contrasted to metaphysics, 183,185; ius gentium and, 68 f.
scope of, 183, 185 limitations on, 204
Pietas, 68, 2og in materialism, 127 f.
Pius IX (pope): on law and rights, 122; model and ideal for lawmaker, 30
Syllabus, 122 moral law and, 192
284 INDEX
Positive law (continued) Positive law and natural law (continued)
morality and, 213 and note ruler and the ruled under, 266
natural-law principles in formation of, St. Thomas, 53-56
147 f. scholastic teaching, 28
necessity of, 219, 226, 228, 253 ff.: in Late Sophists, 8 f., 250
Scholastics, 66 f.; in St. Thomas, 54; in Stahl on, 117 ff.
Scholasticism, 73 in totalitarianism, 155 f.
obligation of, 66, 143, 255-57 Positivism
the only law, 117-19 absolutism and, 142, 250
opposed to natural law, 250 agnosticism and, 63
personal honor, 232 attack on natural law, 124 ff.
Plato, 15 basis of, 130
in positivism, 125, 128, 139 f. Bergbohm and untenableness of, 215
private property, 235 f. and note Carneades, 21
Pufendorf, 95 f. concept of law, 127 ff., 248 f.
reason and, 55 f.; see also Law and reason constitutional law, 248
represented as natural law, 106 f. criterion for law, 138 f.
right of inheritance, 235 f. Duguit’s opposition to legal, 142-45
St. Thomas, 53-56 ethics of, 130
sin and, 59 failure of, 131 f., 138 f.
slavery, 30 forerunner: of relativism, 133; of totali­
social consciousness and, 146 tarianism, 152 f.
source of, 17 forms of, 125 ff.
as source of law, 125 forms of government and, 250
unjust: binding force of, 12, 55, 66, 199 f., among the Greeks, 33
255 f.; enforceability of, 156 f. historical school of law, 119, 126
unreasonable, 195, 199 f. Hume, 113
validity of, 261 f. inadequacy of, 246
Positive law and natural law, 132, 250-57, inconsistency of, 134
260-63 intention of the lawmaker, 139 f.
age of natural law, 106 f. international law, 149
agreement of law and morality, 157 justice, 248
Aristotle, 17 ff. law as will, 247 f.
in cases of injustice, 138 legal, 247-50: sources of, 249 f.
Christian tradition, 250 ff. limitations on the lawmaker, 140 ff.
Cicero, 23 method of, 126, 187
in conflict with each other, 262 moderate, 128 ff.
content of natural law, 229 and note natural-law idea, 228 f.
Gratian, 38 f. necessity of Bills of Rights, 146
Grotius, 70 f. nominalism and, 41
historical school of law, 117-19 opposed to natural law, 250
Hobbes, 84-86, 88 positive law, 128
influenced by canon law, 38 f. primacy of the will, 41
Kelsen, 147 rejection of, 51, 199
Late Scholasticism, 63, 65 ff. during the Renaissance, 61
later Roman Empire, 30 result of law-as-will idea, 176
LeBuffe and Hayes on, 191 f. note shortcomings of, 131 f.
Occam, 59 Skeptics, 20
Pius XI, 156 sociology and, 126
Plato, 15 Sophists, 10
in positivism, 129 sovereignty, 145 f.
Pufendorf, 95 f. the state, 146
Roman jurists, 27 ff., 38 the turning from, 144 f.
Rousseau, 250 victory of, 109, 130 ft.
 INDEX 23

Positivism (continued) Psychology as taught by (continued)

weakness revealed by totalitarianism, rationalism, 164
155 f- Thomistic philosophy, 164 H.
Power of God, 62 Puchta, on Roman law, 25
The Prince by Machiavelli, 60 Pufendorf, Samuel von, 40, 94-97
Principle: of double effect, 222 note; of age of natural law, 93 f.
reason, 48 contempt for natural law, 122
Principles of natural law criticized by Leibnitz, 96
Decalogue, 221 f. and notes enlightened despotism, 79, 82
discernible by reason, 36 eternal law, 97
essential nature of man, 190 foundation for ethics, 77
in the formation of law, 147 f. ignorant of Scholasticism, 93
German Civil Code, 138 imperial law, 76
immutability of, 224 international law, 96
knowability of, vi ius naturale and ius gentium, 74
in legal codes, 132 man’s nature, g4 f.
primary norms of, 220 natural law, 95 If., 122
remoter conclusions of, 51-54, 252 f. nineteenth century influenced by, 120
St. Thomas, 48 f. and notes, 51-53 opposed to Arriaga and Grotius, 97
Scholasticism, 73 pioneer in “ age of natural law,” 75
self-evidence of, 217, 227 and note, 251 positive law, g5 f.
in social life, 147 principle of ethics, 163
uncertainty of remoter conclusions, 51- rationalism of, 96 f.
53. 252 f - on Scholasticism, 82, 93
Private property, 232-36 sociality of man, 94 f., gg
capitalism and, 257 f. Sophist ideas, 11
family and, 235 Punishment: conditioned by circumstances,
German law, 258 55; of heretics, 212; purpose of, 254 f.
Leo X III, 218 f., 233-35 and note; in St. Augustine, 38
natural law and, 67, 233 if., 257 f., 265
necessity of, 233-35 an<l notes Quadragesima anno by Pius X I, 220 note
not a natural-law institution, 99 Quasi-positive law, 68 f.
positive-law determinations of, 235 f. and Quiddity, 166, 170, 172; see also Essence
note
protected by natural law, 225 Ratio legis, in positivism, 139 f.
Roman law, 258 Rationalism
St. Thomas, 233 absolutism and, go
systems of, 257 f., 265 beginnings of, 64
Treitschke on, 232 f. consequences of, 105 if.
Proletarians, 234 note, 239 content of natural law, 228 f.
Promulgation of law, 195 deism and, 75 f.
Propaganda, totalitarian, 153 f. Descartes, 87 f.
Property, private; see Private property empiricism and, 166
Propertyless, the, 258 end of feudalism and, 90
Protestantism: and original sin, 60, 65; and epistemology of, 164
revival of Scholasticism, 60 Grotius, 73 f.
Prudence: in the lawmaker, 254 f., 257; St. Hobbes, 82 if.
Thomas on, 255 individualism and, 76, 78
Psychology as taught by (see also Episte­ Kant, 87 f., 102 f.
mology) Kelsen, 162 f.
Grotius, 72 natural-law systems, 87
Hume, 114 note of newer natural law, 93 f.
Late Scholasticism, 62 f. Sophists, 7, 10, 12
nominalism, 176 Reality, order of, 173
386 INDEX
Reason Richter, Jean Paul: diversity of natural-
being and, 211 f. law systems, 106
in conflict with passions, 228 Right (see also Justice)
criterion of human acts, 193 f. and basis of, 172
notes factuality and, 172
criterion of natural moral law, 181 f. social solidarity, 143 f.
Farrell on, 50 note, 193 totalitarian concept of, 154
insufficiency of, vi and wrong, 218 note: determination of,
law and; see Law and reason 143 f.
legal, 227 Rights
measure of all things, 87 f. characteristics of, 208
morality and, 47 ff. delimitation of, 208
norm of justice and goodness, 221 and duties and, 204, 207, 243 notes: LeBuffe
note, 226 note and Hayes on, 192 note; of marriage,
positive law and, 55 f.; see also Law and 239; Pius IX on, 122
reason essential being and, 192 note
practical: Farrell on, 50 note; norms of founded on natural law, 243 note
natural law, 220 and note; primacy of, Hobbes, 231
102; uncertainty of, 227 f. and note, 252 human, 231, 243 note: Dernburg on, 231;
St. Thomas, 47-53, 227 note among the Greeks, 33; in Locke, 88 f.
self-sufficiency of, 87 inalienable, 243 note: denied by totali­
source of natural law, 87 f. tarianism, 154; in Locke, 88 f.
theoretical and practical, 177 f., 190: von Jhering on, 207
certitude of, 227 f. and note, 251 f.; in justice and, 53
Hume, 113 ; and morality of law, 190; LeBuffe and Hayes on, 191 f. note
principles of, 184-86, 220 and note; in of marriage, 239
St. Thomas, 48, 51, 53, 220 note, 227 natural: in Locke, 88 f .; among the R o­
note man jurists, 30; in Rousseau, 91 f.;
will and, 195: in Late Scholasticism, 63; among the Sophists, g
nature of law, 198-200; in St. Thomas, of ownership, 233 and note
19 5 personal, 206 f.
Recta ratio, 26 personality and, 230-32
Reformers: Catholic social, 258; Protestant positive law and, 205
(see Protestantism) St. Thomas on, 53
Reign of Terror, 92 subject of, 207
Reinhardt, K. F.: on metaphysics and ethics, Rintelen, F.-J. von: on philosophia peren­
178 note; on philosophia perennis, 30 nis, 31 note
note Robespierre, influenced by Rousseau, 92
Relativism, 41: ethical, 130 note; of Kelsen, Robinson Crusoe by Defoe, 80
163; result of empiricism, 125; result Roeder, 131
of positivism, 133 Roman jurists, 26 ff.
Religion and law, 3 f. content of natural law, 28
Renaissance, 60 f. equality of men, 28
Renard, Georges: on content of natural ins naturale and ius gentium, 29
law, 229 note law and morality, 29
Rerum natura, 27 ff. natural law, 26-30
Rerum novarum by Leo X III, 123 slavery, 30
Res cogitans, of Descartes, 87 Roman law
Respect accorded to law, 7 f. decline of esteem for, 75
Responsa, of Roman jurists, 26-28, 114 English common law and, 30 note
Revelation: and development of ethics, influenced by Stoicism, 21, 25-27
vii; necessity of, vi ff. ius gentium and, 28 f.
Revolution: French, 79 f., 92, 1 1 1 ; justifi­ under Justinian, 30
able, 262; right of, 92, 157 natural law and, 26-30
 INDEX 587
Roman law (continued) Scotus, Duns, 57 f.
prohibited in the schools, g8 Secularism, 79
sacred character of, 3 f. Security and personal property, 234 f. and
Scholasticism’s influence on, 30 f. note
slavery, 30 Sedition, 262
as world law, 3 and note, 25 Self-defense, 231: in Cicero, 23 note; kill­
Romantic movement, 110: antirevolution­ ing in, 222; right to, 225; among Ro­
ary, 115, 118 f.; and historical school of man jurists, 28
law, n o , 115 Selfishness: foundation of Hobbes’ theory,
Rousseau, Jean Jacques, 7g, 91 f. 83; in Locke’s social philosophy, 89
French Revolution influenced by, 92 Self-preservation, as basis of natural law,
Hobbes contrasted to, 91 83 f.
idea of natural law, 80 Seneca, 21: on brotherhood of man, 24 f.;
Kant influenced by, 103 on human dignity, 24; on ingratitude,
optimism of, 82 68; on natural law, 24 f.
positive law and natural law, 250 Senses, operation of, 164 ff.
Sophist ideas, 8, n Sensism, 164
the state, 91 f. Sin, 256: and divine will, 59; original (see
state of nature, 91 f. Original sin)
Russia, marriage in, 170 f., 239 Skepticism
Russian Communism: absurdity of, 230; doctrine of, 20
and the family, 235: rejection of pri­ of German idealists, 130 f.
vate property, 235 of Locke, go
Ryan, John A.: on the common good, 241 opposed by Plato and Aristotle, 19 f.
note in positivism, 126
rejection of natural law, 110 f.
Sabine, G. H.: on Hobbes, 84 note; on result of empiricism, 125
Hume’s psychology, 114 note result of positivism, 133
Sachsenspiegel, 204 of the Sophists, 12, 19
Safeguards against tyranny, 158 Skeptics, 20: positivism of, 33
Sage, the, 22 Slave, killing of a, 224
Salus populi suprema lex, 259 Slavery
Sanction, necessity for, 253 f. and note abolition of, 207 and note
Savigny, F. C. von, 40: on development of Aristotle, 32
law, 116 Epictetus, 24
Sawicki, on philosophia perennis, 31 note Greek citizenship and, 32
Schiller, on liberty of thought, 206 human personality and, 230
Scholasticism, 39 ff. positive-law institution, 30
Descartes and, 70 Roman jurists, 30
description of, 39 note Seneca, 24 f.
discrediting of, 82 undermined by Sophists’ teaching, 9
disregarded in nineteenth century, 120 Social contract: denied by Rousseau, 92; in
home of philosophia perennis, 31 Hobbes, 83 ff.; in Locke, 89; in Pufen
institutiones iuris naturalis, 186 f. dorf, 95; in Thomasius, 98
misunderstood by Pufendorf and Kant, Social justice, virtues of, 245
93 Sociality of man, 77, 236 ff.
denied by Descartes, 87
natural law, 31, 39 ff., 73
newer natural law and, g3 f. denied by individualism, 81
principles of natural law, 73 essential nature of man, 187
refuge of natural-law idea, 31, 39 foundation of natural law, 187
revival of, 60-63 Grotius, 71 f.
Science: foundation of, 183 ff.; normative, misinterpreted by Pufendorf, g4 f., 99
217; object of, 185 Thomasius, 98
Scientism, 126, 129 Societas humana, 29
 288 INDEX
Societies State, the
common good and, 244, 266 Bodin’s concept of, 145
founded on natural law, 244 and note Christian concept of, 200
individual interests and, 266 in the Church Fathers, 36
necessary, 237 ff. common good and, 241, 244, 246, 266
necessity of, 238 note duties to the family, 239
rights of, 243 and note education, 78, 196: to virtue, 101
state and, 244 f. and note family and, 238 f.
Society: disintegration of, 34; purpose of, founded on natural law, 246
256 note goodness of, 13
Sociology, 186, 188: grounded in social Gumplowicz on, 127
metaphysics, 123: in positivism, 126 Hobbes’ concept of, 84-86
Socrates: obligation of unjust laws, 12; op­ human rights, 243 and note
posed to Sophists and skepticism, 19 f.; identified with nation, 148
respect for the law, 7, 12; ridiculed by individualism and, 245
Sophists, 8; teaching of, 12 international community and, 241 f.
Sophists, 7-12 limitations on, 140-46, 148
Aristotle’s opposition to, 13, ig t. Locke’s concept of, 89
civitas maxima, 15 materialist concept of, 127
criticism by, 7 ff., 11 f. national autonomy, 148
demagogy of, 7 national community and, 238
disrespect for the law, 7 ff„ 11 necessity of, 240
individualism of, 33 perfect society, 240
natural rights, g Pius IX on rights of, 122
Plato’s opposition to, 13, 15 f., ig f. protector of private property, 233
positive law and natural law, 250 purpose of, 240 f.
rationalism of, 10, 12 recognition of, 171
reputation of, 7 religious toleration, 108
Rousseau and doctrine of, 8 Rousseau’s concept of, 91 f.
skepticism of, 10, 12, 19 f. societies and, 244 f. and note
slavery, g subsidarity of, 244
Socrates’ opposition to, 19 f. tyranny of the, 262, 265
state of nature, 10, 33 State of innocence, 36, 44
Sophocles: doctrine of a higher law, 12 f. State of nature,
note Alexander of Hales, 44
Soul, immortality of, 32 already social, 105
Sovereignty: of English Parliament, 204; Church Fathers, 36
modern concept of, 145 f.; totalitarian Epicureans, 10
concept of, 156; see also State Epicurus, 78
Spinoza, Baruch: contrasted to Locke, 88; foundation of absolutism and despotism,
Ethics by, 110; impulses of nature as 79 f-
natural norm, 175 f.; on state of nature, French Revolution and, 79 f.
85 Greek philosophy, 33
Stahl, F. J., 13 1: on natural law, 119; on Hobbes, 78, 82-86
positive law, 117 f. ideal natural law and, 95 f.
Stammler, Rudolf in individualism, 80 f.
accused of natural-law tendencies, 137 Kant, 101, 104 f.
basis of law, 132 Locke, 88 f.
concept of law, 135 f. natural law and, 53
content of natural law, 136 f., 22g note in newer natural law, 93 f.
justice, 136 philosophia perennis, 218
Kantian philosophy and, 135 f. Pufendorf, 94 f.
law and reason, 131 in rationalism, 76 ff.
principles of law, 189 f. Rousseau, 91 f.
 INDEX 289
State of nature (continued) Theory of will, 128
St. Thomas, 53 Thomas Aquinas, St., 45-57
Sophists, 10 analogy of being, 45
Spinoza, 85 Aristotle and, 16, 31 note
Stoics, 25 contradictory laws, 227 note
theological, 36, 44 contrasted to Descartes, 86 f.
Thomasius, g8 custom, 56 note
Status civilis, 25: Hobbes, 81, 83, gg; Kant, the Decalogue, 51-53, 56 f. and notes
105; Locke, 88 f.; Pufendorf, 94 £.; definitions of law, 192, 195 note
Rousseau, 91 f. democracy, 220, 25g note
Steffes, J.: definition of natural law, 181 divine reason and will, 168
note duties to others, 206
Sterilization, 222 note: and fornication, t8i entelechy of, 170, 172 f.
Stoicism, 1 1 , 21-26 epistemology of, 86 f., 164 ff.
Christian natural law and, 12, 21, 25, 34- essence and existence, 166-72
36 eternal law, 45 f., 180 and note
Church Fathers influenced by, 35 f. form and matter, 169 f.
Cicero, 23 f. goodness, 170, 172: and justice, 221 note;
contribution to Christian culture, 12 and truth and being, 47 ff.
doctrine of, 22 ff. hymnologist and liturgist, 211
Epictetus, 24 ideal government, 220
individualism, 21 immutability of natural law, 168
law, 22 f., 25-27 intrinsic morality, 50
primary and secondary natural law, 33 Jhering on, 120
rise of, 21 justice, 203, 206, 255
Roman environment and, 21 f., 25 law and divine reason, 168
Roman law influenced by, 21, 25 ff. law and reason, 47 f., 5 1,5 5 f., 195 note
Seneca, 24 f. law as measure of acts, 192
state of nature, 25 lawlessness, 195
Strike, labor, 251 man's natural inclinations, 49 note
Suarez, 40, 60 metaphysics of, 45, 47 f. and note
controversy with Vasquez, 64, 70, ig6 f. natural moral law, 46 ff.
Grotius and, 71 ff. nature of law, 55 f.
on law and reason, 64 f. necessity of experience, 166, 216 and note,
lex naturalis and ius naturale, 67 218
Liszt and, 150 operation of human faculties, 179
natural law, 64 f., 70 positive law, 53-56
nature of law, 67, 70 practical reason, 47-53, 227 note
reason and divine will, 197 precepts of natural law, 220 note
Subjectivism of the Sophists, 20 principles of natural law, 48 f. and notes,
Subsidiarity: principle of, 220 and note; of 51 ff.
states, 244 private property, 233
Supernatural order, vii f. prudence, 255
Supreme Court, 198 reason: and law, 193, 194 note; as norm
Syllabus by Pius IX, on law and rights, 122 of justice and goodness, 221 note, 226
note; and will, 195
Taparelli, natural-law doctrine of, 218 teleology, 45 and note, 169-74
Taxation, unjust, 66, 256 theoretical and practical reason, 48, 51,
Teleology 53, 220 note, 227 note
criterion for law, 179 f. truth and being, 169
of Duguit, 143 f. universals in, 166 ff.
nature of law and, 193 f. Thomasius, Christian, 40, 98 f.
of Plato, 14 age of natural law and, 93 f.
of St. Thomas, 45 and note, 169-74 contempt for natural law, 122
290 INDEX
Thomasius, Christian, (continued) Universals, in Thomistic philosophy, 166 ff.
enlightened despotism, 82 Utilitarianism
ethical notions of, 98 Bentham, 89, 110
foundation for ethics, 77 Epicurus, 10
natural law, 99 Hume, 113
nature of law, 98 Kant, 105
separation of law and morality, 121 Locke, 89
Sophist ideas, n rejection of natural law, 110 f.
Toleration: juridical and dogmatic, 212; Thomasius, 98
religious, 108
Totalitarianism Validity of law, 261
abuse of “ natural law,” 153 f. Variations in natural-law contents, 227-29
in Aristotle, 13, 19 and notes
defense against, 264 Vasquez, 40: controversy with Suarez, 64,
Huber on, 154 70, 169 f.; Grotius and, 71 f.; law and
methods of, 156 being, 63; nature of law, 19G; peculiar
morality and law, 155 f. view on natural law, 64
opposed by natural-law doctrine, 153 ff. Veto, absolute right of, 198
in Plato, 13, 19 Virtue: defined by Hume, 112 ; in Stoicism,
propaganda of, 153 f. 22
resisted by Catholicism, 153 Virtues of the family, 245
result of positivism, 152 f. Vis coactiva, 55
revival of natural-law idea and, 155 Vis directiva, 55
unjust laws and, 156 f. Vittoria, 40, 60: compared to Liszt, 150; De
voluntarism of, 164 bello et de Indis, 61; Grotius and, 73
Traitors, punishment of, 212 note Volksgeist, n o t.: as source of law, n 6 f.
Treason, 240
Treitschke, H. von: on private property, Wage contract, 265
233 War: civil, 224: ethics of, 223 f.
Trendelenburg, F. A., 131 Warnkoenig, 106
Truth Will
being and, 176, 184: not linked by Hume, existence and divine, 168, 175, 178
113 ; St. Thomas on, 47 ff., i6g freedom of the, 175
Brentano on, 267 law and; see Law and will
goodness and, 48 f., 59 of the majority, 141
justice and, 267 primacy of, 44: in Duns Scotus, 57 f.; in
reality and, 267 Grotius, 72; in Occam, 58 ff.; refuted,
176
Ulpian, 65: ius naturale, 29; on jurists, 214: theory of, 128
positive law and natural law, 28 Wisdom, necessary for lawmaking, 226 and
Uncertainty of the practical reason, 227 f. notes
and note, 252 World community, 9
United Nations Organization, 264 World law of the Stoics, 22
United States, judiciary in, 42, 198, 248 f. Wright, B. F.: 162 note
Universal moral code, 227 note
Universal reason, 6 Zeno, founder of Stoicism, 21