The Natural Law. Heinrich A. Rommen

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      The metaphysical natural law of Plato as well as the more realistic 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 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 extremist 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 knowledge means the contemplation of the idea of justice, and so on. The daimonion, conscience and its voice, he regarded as a reflection and testimony of these ultimate values and of the divinely instituted 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

      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, concerned 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 socialism 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 naturally just and what is legally just. Nor is this distinction merely a borrowed formula: it is an integral part of their doctrinal structure. Yet in the case of both we can observe a certain aversion to 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 contemplation. For speculative reason, sense phenomena are the bridge of memory to the ideas, which dwell and live on in their supermundane, 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 The law should be a true law: one that benefits the common weal. Therein its idea achieves its completion. Thus Plato contrasts 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. Underlying 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 doctrine 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 recognizes, 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 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 excellence. 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 СКАЧАТЬ