The Natural Law. Heinrich A. Rommen

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СКАЧАТЬ 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, 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, however 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 obtains its moral justification. Not the will of the earthly lawgiver, but variance with natural reason is the ground of the intrinsic immorality 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 development 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. 1148), especially since during the first period of the flowering of Scholasticism the study of Roman law by theologians was frowned upon and even, for a time, prohibited. Gratian distinguished 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. Natural rights and duties may indeed have to be more closely defined by positive law, but they stand as a norm and rule above the positive laws. To 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, Scholasticism,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 philosophy which has been dominant in the chairs of the secular universities, 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 carried 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 doctrinal development from the first Scholastics down to the able leaders of the scholastic revival of recent times. Its two culminating points were the synthesis of St. Thomas Aquinas and, following the heaviest assault made inside Scholasticism by the Occamists on the idea of natural law, the work of Vittoria, Bellarmine, 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 independent of fashionable philosophies and of a jurisprudence with special sociological or political ties.

      Scholasticism has dealt exhaustively with the problem of natural 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 ius 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 philosophers of the philosophia perennis, whether they were contemporaries of Pufendorf and Thomasius or of Savigny, down to the increasingly esteemed representatives of the scholastic revival 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, coincided 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 moorings and hence secularized, the same thought patterns repeated 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 renouncing of all efforts to know the essences of things (nominalism), 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 public and international law, nominalism and agnosticism in epistemology 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 knowing 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, 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 continually recurring even today.⁴

      It was not with St. Anselm of Canterbury (1033–1109), often called the first of the Schoolmen, that Scholasticism began to concern 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 philosophical 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.

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