The Nature of Law

“The Natural Law: A Study in Legal and Social History and Philosophy” by Heinrich Rommen

The Nature of Law

It may be said with some exaggeration that the era of individualism 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 observance. 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. Besides, whoever is of the opinion that 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 concept of law. “Law is a rule and measure of acts, whereby man is induced 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 reason, as practical reason, further regulates action since it apprehends 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 meaningless; without purpose, the will has nothing to strive for. But reason alone can grasp the appropriateness of the actions for attainment 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 pertaining to reason.” To the concept of law belongs “an ordinance of reason,” 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 communication of thoughts. Ever wider investigation brings to light an ultimate 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 purpose that is ultimate in the respective order. The purpose or end 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. But universality belongs to this end: it is the common good of all who strive for it. To 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 reason which directs the actions of free man to the common good, not to a private or particular good. This may not be restricted to the general welfare of the state, although this is its foremost application, 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.

To 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 presuppose 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 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. The will, too, is included there in. 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 categorically.

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. Law as a rational norm for the free activity of man must have at bottom this objective; it is not a mere safeguard against the antisocial impulses 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 character of the community, especially of the state. All law wishes to educate the members of the community. All true politics is education of the people. It has required the entire emptying and disparagement 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. Materially, 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 that the latter has force even in the impossible hypothesis that there be no God, was carried forward by Arriaga and Grotius almost to the point of the autonomy of human reason. The contrary 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 nature, it likewise indicates in the very same act that this corresponds also to the will of God, the Author of nature.

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. The answer to the question about the nature of law is thus the answer to the question of the relationship between intellect 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 government, 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 unconstitutional. 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 Constitution, with absolute right of veto.

The demand for a public consideration of the laws in parliament 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 XIV 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 century, which rested on the view that the ruler, because of his superior, 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 unfruitfulness 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 certain 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 unreasonableness of a law or an actually deficient insight into its reasonableness 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 freedom, 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, moreover, constitute the principal form of individualist jurisprudence.

The Christian philosophy of law, however, absolutely demands the positive law. And if it declares reasonableness to be an essential note of the concept of law, it can still, with St. Thomas, characterize 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 definition of law, even though, in contradistinction to moral law, physical enforceability is proper to the positive law of the state. “Hence compulsion is rather an element of wrong than of right, since the latter, so long as it functions normally, has no need at all of forcible execution” (F. von Martens). Coercion is the consequence of the dignity and necessity of the positive law. The rational 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.

Natural Law and Positive Law

Legal positivism, that is, the theoretical rejection of the natural law according to form (as non-positive source of valid law) and content (as law contained in no positive norm), maintains that the natural-law doctrine represents a dualism which is inimical to legal security; or that for fixed objective norms it substitutes subjective opinions concerning a juridical oughtness; or that in a dualistic fashion valid legal norms are drawn from a system of norms which is set in contrast to the positive law (ethics, law of reason, reform proposals for new legislation, Roman law as written reason). Hence positivism regards the natural law as a non-law in the proper sense of the word. It refers, instead, to ethics, to fabricated ideal norms for new legislation, to politico-legal aims, and so on.

Law, according to positivism, is only positive law, that is, statute law and such customary law as is recognized by the state. More precisely, positivism characterizes as law to be applied by the judge and alone to be considered by jurisprudence those norms only which are enacted as such by the factual and published will of the legislative organ in due conformity with constitutional law or which are explicitly or tacitly admitted by it. The positivist is ever seeking for the written or actually enforced factual decision of the will which converts a potential norm into an actual norm. Moreover, he is concerned solely with this formal origin of law, with the source of the norm and its manner of formation, not with its content. Auctoritas facit legem, law is will. The question of whether something can be wrong in itself is meaningless for him. To him, right and wrong are not material qualities of norms; they merely denote the presence or absence of agreement with the factual will of the lawmaker. In contrast, for instance, to the Roman jurist, the positivist does not search for justice by way of the positive norm in which it is contained materially; he inquires rather for the norm which is derived from the will of the legislator. The establishing of this fact settles for him the question whether a legal norm lies before him. He presumes its justice, or he asserts that the question of justice is an ethical question, not a juridical one.

In constitutional states, however, the typical positivist runs into difficulties. Particularly when it comes to applying the law, he must inquire not only whether the path of legislation prescribed by the constitution has been followed, but also whether the law (including customary law) is not in conflict with the higher norms of constitutional law. And there the legal positivist readily runs afoul of natural law. To the positivist, many constitutional provisions are not genuine legal norms but rather programmatic utterances of the constituent or constitution-making power. Take, for instance, such a constitutional provision as “Property imposes obligations; its use must at the same time be a service of the common weal.” The positivist characterizes this provision as a mere guiding rule, not as a binding norm for either lawmaker or citizen. He insists upon taking such a view even though this provision is aimed directly at the individualist concept of property, and though property and obligation obviously are juridical concepts. Here, in our view, lies the typical positivist short circuit. The positivist, who for that matter does not know what to do with such highly important constitutional preambles, perceives in these cases invasion points for natural law to be applied by the judge. In the United States the judge, by referring to the natural-law foundation of man’s rights to liberty, has set himself not only above the lawmaker but in theory even above the framers of constitutional law. For the real lawmaker is not the one who enacts the laws, but the one who sovereignly expounds them. But the interpreter refers precisely to natural law and justice. This formalist method makes positivism possible even for Catholic thinkers, when they regard ethics and the moral law as norms derived from God’s will. Such norms do not indeed have legal validity, but they do have the moral force of oughtness.

It is generally acknowledged today that positivism is inadequate from the standpoint of both legal theory and legal philosophy. One of its bases, the theory of the completeness of the law or absence of gaps in the law, has been given up. The theory of legal monism has likewise been widely abandoned. For good faith, the principles of morality and the carefulness of the ordinary merchant are often used by the judge as valid norms not only beyond or in addition to the positive law, but even contrary to the positive law. That is, they are used contrary to the factual will of the lawmaker, even if generally on the basis of the unwarranted fiction that the lawmaker could have willed no wrong.

To look more closely into the matter, we may note several phenomena as sources of legal positivism. In periods of philosophico-ethical uncertainty and barrenness the jurist, who is of course concerned with the practical settlement of legal questions, rightly holds to the positive law that is sure because it is enforced and applied. This is all the more true when the abstract speculations of rationalism have split into increasingly subjective views of various schools. At times when no natural order obtains, but, as in Communist Russia, even the national community is viewed as a social mechanism to be organized along engineering lines, positivism may well be congenial.

The predominance of positivism or of the natural law is likewise connected with types of state or forms of government. Royal absolutism provides in itself a more favorable environment for positivism than do liberal democratic states in which the judge is more or less sovereign. Even forms of government are determined by the antithesis of reason and will, for governmental types are differentiated also by their types of legislation.

But the natural law need not stand diametrically opposed to the positive law, nor has such an opposition always existed in history. Natural law and positivism are, indeed, directly opposed to each other. But natural law and positive law are, as the Christian doctrine of natural law expresses it, directed immediately to each other. The natural law calls imperatively for specification by positive enactments, even though it is at the same time the measure and guideline of the positive law. It requires the positive law; or, as the Christian tradition affirms in an apt distinction, it requires human law, i.e., enactment by earthly authority. In this question of the relationship between natural law and positive law the schools of natural law differ as much as they do over principles. For the Sophists as well as for Rousseau’s individualist natural law the positive law was the direct opposite of the law of nature. The positive law, since it served to secure the interests of the ruling class, was even materially opposed to the natural law. The democratic revolution was the first to make its natural law the exclusive law. The natural law of rationalism believed that, from principles that varied from time to time, a materially complete system of law could be deduced, which thereupon needed but the formal legal decree to become also positive law.

The natural law of the philosophia perennis, on the other hand, contains but a few universal norms and forgoes deductive extremes. It states explicitly that in the normative sciences certainty and necessity decrease in proportion as deduction moves farther away from the first self-evident principles. It has so strong a feeling for the great blessing of a secure and reliable legal order, which it considers a most essential element of the common good, that it regards as non-binding only that positive law which has been changed into non-law by the prohibitive norms of the natural law. Of course, it accords the permissive natural law and equity their proper place. It is revolutionary only in respect to the law that has become materially immoral. Its attitude toward the imperfections of the positive law is merely reformist. It may with some exaggeration be called a skeleton law. It determines what positive arrangements, in themselves capable of being willed in given historical circumstances, can be right. Thus it does not affirm that private ownership of capital is wrong, or that the attainment of just wage claims by means of a strike (break of contract) is wrong when state protection of labor is lacking. Nor does it assert that dictatorship is intrinsically wrong, since dictatorship becomes wrong only through the misuse of the dictatorial power that for the time being is historically necessary, just as it does not pronounce parliamentary democracy to be inherently wrong. Nor, finally, does it declare every war unjust. Yet it does say that, where no fault of the owner exists, complete expropriation without compensation is unjust. It does declare that the general strike for the illegitimate achievement of the rule of the proletariat is wrong. And it does say that disregard of the natural rights to life and to the necessary liberties of the person is wrong, irrespective of by whom and under what circumstances they are infringed.

The natural law calls both for the positive law and for the lawmaker. To begin with, only the first principles and proximate conclusions (Decalogue) are immediately evident and epistemologically necessary. The theoretical reason proceeds from the particular, which is given in sense perception, to the general. Therefore its knowledge bears the stamp of certainty and necessity far more than does that of the practical reason. The practical reason proceeds from the general principle to the singular, to the contingent, to the multiplicity of possible means and intermediate ends in a world which is incessantly changing in virtue of the actions of others and one’s own development, although the higher end, e.g., the common good, remains ever the same. Consequently the more the practical reason descends from the principles to the further conclusions and comes to apply them to increasingly more concrete situations of fact, its knowledge becomes more uncertain, variable, and questionable in application. St. Thomas rightly observes that “to suitably introduce justice into business transactions and personal relations is more laborious and difficult to understand than the remedies in which consists the whole art of medicine.”3 Owing to this very uncertainty, men stand in great need of the positive norm which derives and determines what is to be inferred from the general principle, regard being had for the national character and the concrete historical situation. Without such a positive norm no certainty and no order at all could arise in view of the number and diversity of the deductions. Above all, everyone who has not succumbed to rationalism and does not regard men as purely thinking and inferring beings knows how great a danger reason runs of being misled by passions when it comes to applying norms to one’s own as well as to opposing interests. He also knows how easily the voice of conscience is drowned out by the tempestuous demands of selfishness. An authoritative determination of the conclusions is plainly needed in order that these, as norms which emanate from authority and demand obedience, may be able to support conscience and reason.

For the same reasons the natural law as well as what is derived from it requires also a positive, earthly sanction, which it does not of itself immediately possess. Indirectly, of course, it does have a sanction. Every people that disregards the laws of moral living is doomed to deterioration and to destruction. Justice remains the foundation of the state, and world history continues to be world judgment. Yet an immediate sanction is needed, a direct threat of force. The menace to order is inherent in the imperfection of all that is human, in the disordered vital impulse and immoderate instinctive drives of individuals and their groups and communities. The propensity to disorder which is found in man and his associations is just as strong as, nay even stronger than, the rational longing for ordo. All this calls for a positive ordering and safeguarding of human existence and welfare at the hands of a concrete power. The philosophia perennis does not subscribe to the unfounded optimism of Rousseau’s idea of natural law. It is aware of the demonic element in man’s nature, of the dark forces which produce disorder and destruction. Even though, for example, the natural law forbids theft, there is need of the positive penal law which attaches the penalty as a legal consequence to the actual fact of theft. Justice determines what this penalty is in the light of the principle of proportionateness; and prudence aids in its determination by drawing upon the principle of suitableness of means to the end and upon the requirements of education. For punishment is not an end in itself: its object is requital (iustitia vindicativa) as well as deterrence and education.5

The special form of the virtue of prudence for the lawmaker consists not only herein, but also in deriving the positive norm from the principles with due regard for concrete circumstances. St. Thomas, it will be recalled, repeatedly mentions the function of circumstances in determining the reasonableness of a law. “The execution of justice, in so far as it is directed to the common good, which is part of the kingly office, needs the guidance of prudence. Hence these two virtues—prudence and justice—belong most properly to a king,” i.e., in his principal function of lawmaking.6 For prudence combines the knowledge of general principles with the knowledge of particulars which are the matter of action, since it governs the right choice of means for attaining the end. The prudence of the lawmaker is the most perfect species of prudence, and it is compared to the prudence of subjects as mastercraft to handicraft.8

It is thus sufficiently established that all positive laws should in some way be derivations from the natural law or determinations of it. But this does not mean that every positive law which is not a correct derivation or determination of the natural law is therefore not binding and is devoid of obligation. Only those positive laws are purely and simply non-obligatory which command one to do something that in itself is immoral and unjust. To this category belong laws that are at variance with the prohibitive precepts of the natural law. There is nothing revolutionary about this; it is something self-evident. Scarcely anybody will regard as right a law which allows assassination, adultery, or perjury. Few will call the early Christians contemners of law because they refused obedience to the pagan laws which prescribed sacrifices to idols.

On the other hand, an unjust law (e.g., a tax law which is in conflict with the principle of justice and proportionateness) is not solely on that account devoid of obligation. An unjust law is not forthwith an immoral law in the strict sense, that is, a law which prescribes a sinful action. In cases of this kind the maintenance of even an imperfect ordo takes precedence over resistance to a particular unjust law. The natural law is, of course, a norm for the lawmaker. Such a view has been held by nearly all philosophers of law, including the founders of the modern theory of sovereignty, Bodin and for a time even Hobbes. Yet a positive law which is certainly unjust but does not contradict the natural law in its prohibitive norms does not give to judges and other public officials, whom the constitution obliges to apply and execute the law, or to the subjects of the law a right to consider the law non-binding and invalid. Even a tax law which agrees neither with distributive justice nor, say, with the principle of expenditure in the general interest does not justify a person in defrauding the revenue. The natural-law principles of obedience and truthfulness here again take precedence. The proper remedy is not disobedience but use of the means provided by the constitution. Since, however, the prohibitive precepts of the natural law have precisely the function of protecting the social order in its deepest foundation, a positive law that commands something which is in itself unjust and immoral must be regarded as non-law. When little or no respect any longer exists for any authority; when marriage generally ceases to be differentiated from concubinage and promiscuity; when the honor of one’s fellow citizen is no longer respected and oaths no longer have force, then the possibility of social living, of order in human affairs, vanishes altogether.

So far as the other norms of the natural law (ius naturale permissivum vel praecipiens) are concerned, the positive law is free in its efforts to give effect to these precepts. For in this case questions of national character, suitableness of means, circumstances, and forms of government are decisive. Here, in other words, the prudence of the lawmaker is the decisive factor. This prudent reserve of the traditional natural law (ius naturale perenne) also implies that there are no points of irreconcilable opposition between the natural law and the historical school of law: the two can and should complement each other.

Some examples may serve to illustrate this. The institution of private property is at the very least in accordance with the natural law. But this does not mean that severe restrictions on the use of property, or even expropriations for reasons of general welfare, are absolutely contrary to the natural law. Nor does it mean that the Roman law idea of property or the feudalist or capitalist systems of ownership pertain to the natural law. It involves merely the directive to the lawmaker to fashion the actual order of ownership in such a way that property may here and now be qualified to perform (for the individual person, for the family in general, and for most of the members of the nation) its natural-law social function in keeping with the national character and the stage of economic development. The property system of private capitalism with its unrestrained freedom of ownership, with its mobilization of all real property, with its tendency toward giant corporations and trusts, and with its division of each people into a relatively few “haves” and a great many “have-nots,” has been for a long time in no position to perform this function. Taking their stand on the natural law, and often enough in prophetic loneliness, Catholic social reformers since Bishop von Ketteler (1811–77), and even since the romantic movement, have been making this clear in their struggle against economic liberalism. They have also been at pains to point out that the liberty of the propertyless is largely a fiction. To save the family they have demonstrated its right to property as a material substratum of its biological and moral existence. Furthermore, it was owing to its individualism that the Roman people fashioned its positive institutions of property along individualist lines. It was in accordance with the corporative spirit of the German people, however, to fashion in Germanic law a substantially different system of property, one which imposed heavy obligations upon owners, and included specific forms of joint ownership (e.g., in the apportionment of the returns of property among many joint claimants), and especially to treat personal and real property according to separate forms. Hence Bishop von Ketteler, the adherent of natural law, in his proposals for social reform significantly called for the restoration of Germanic law. The positive institutions of property do not have the character of something holy. On the contrary, the common good requires of the lawmaker that he prudently introduce changes into the system of property and adapt it to new economic conditions. A complex commercial and industrial economy obviously calls for a different system of property than is required by a simple natural economy.

The rationalist school of natural law had inferred from its own view of natural law that either absolute monarchy or pure democracy, according to the preferences of the writers and the supposed needs or trends of the times, is alone authorized by natural law. The older natural-law doctrine had never advocated sharply defined ideal governments of this sort. Its ideal government was the system of mixed government, which in any event included the participation of the people.10 St. Thomas holds that the constitution must be suited to the character of the people and to its moral vigor. An earnest, moderate, and responsible people which cherishes the general welfare may with full right govern itself through republican institutions and freely elected officials. Here indeed the natural-law principle, salus populi (taken concretely in the sense of an individual people in its historical peculiarity) suprema lex, is valid, and not the positivist axiom which declares that the will of the prince is the supreme law. Thus the Christian natural law has never indulged in the mania for deduction which characterized rationalism. On the contrary, it has been able to take into account the peculiarity of individual peoples and their legal genius, the course of their historical development, and their economic evolution. For only the eternal structural laws of the social life of man as such are of natural law, not the concrete architectural form. The stylistic variation of the art-forms of individual peoples is no disproof of the eternal laws of beauty in art.

The natural law calls, then, for the positive law. This explains why the natural law, though it is the enduring basis and norm of the positive law, progressively withdraws, as it were, behind the curtain of the positive law as the latter achieves a continually greater perfection. This is also why the natural law reappears whenever the positive law is transformed into objective injustice through the evolution and play of vital forces and the functional changes of communities.

For the same reason the practical jurist is generally satisfied with the theory and exclusive application of the positive law. “Our quarrel does not turn on the thing, but on a word: on the meaning in which we use the word ‘law.’ We term law only the positive norm which emanates from the will of the state. What you call natural law we consider ethics, the moral foundations of law which we also acknowledge” (H. Ermann). Natural law is viewed simply as non-applicable law, as devoid of force in the legal sense. But such a view is altogether inadequate. In the first place, it mistakenly presupposes the completeness of (the lack of gaps in) the positive law. Next, it does not square with all legal systems. It stems rather from a politico-legal conviction that, since the judge is bound to apply the positive law, he should not meddle with the function of the legislator whose express duty it is to realize justice. In states where judicial supremacy prevails (in ancient Rome, in medieval German law, in countries of the Anglo-Saxon common law)13 the judges’ ruling is directly creative of law. Certainly these judges appealed and still appeal precisely to the natural law or natural justice. Finally, as has already been indicated, even the positive law frequently refers to the natural law, especially under the form of equity.

It seems that, with regard to the matter of validity, two things have to be distinguished: the validity of law which is related to the order of mere existence (practical and historical factuality) and the validity of law which is related to the order of essence (the metaphysical order). The positive law has validity to the extent that it is promulgated by the duly constituted lawmaker as his factual will. The natural law has validity independently of its embodiment in a factual volitional act. It is thereby valid at least for the lawmaker. Whether and to what extent it binds the judge or has validity for him is more a question of the constitution of the state: it depends rather upon the public-law principle of the division of powers. According to this principle the judge, i.e., the judicial power, has only to apply the laws or the law of the land. Yet it would be decidedly narrow and illogical to exclude natural law from the laws, and to contend that only such laws are meant as are duly enacted in conformity with the formal legislative procedure established by the constitution without any regard to matter and content, to what is intrinsically just or unjust, i.e., without regard to the natural law. Under constitutional government bulwarked by a bill of rights there exists indeed a strong presumption of law and of right that all laws enacted in keeping with constitutional procedure are not out of harmony with the natural law. It is from this assumption that such laws derive not only their factual enforceability but also their ultimate validity before conscience. Nevertheless this presumption is precisely what it means, a practical device which in particular circumstances does not exclude the duty of the judge to invalidate or not to apply a certain positive law which is clearly at variance with the natural law. In any event the prohibitive precepts of the natural law bind even the judge.

Under constitutional, free government with the added safeguard of a bill of rights there thus exists a strong presumption that the positive law is a determination and derivation of the natural law. For this reason and also because of the consequent de facto legal peace, which enables and permits men to accept without further scrutiny the order of positive law, the idea of natural law remains as it were latent. But it makes itself felt whenever the positive law, in itself or in the eyes of a large number of people, appears to be in conflict with the natural law. Then the primordial rights of the person, the family, and the national group stand forth with elemental force against the power of the state, which develops into tyranny by denying the foundations of political community, its own moral root: the natural law. But this is juridically permissible and can meet with ethical approval only if the natural law is real, valid law; otherwise such disobedience toward the positive law could not be approved of. If the old distinction between unlawful sedition and justifiable resistance to the power of the state (i.e., revolution)—a distinction which played such a vital role in medieval legal thought in the form of the common subjection of people and ruler to the law —has progressively disappeared in the modern age, this is due to several factors. First, the people take an increasingly greater part in the development of the positive law, in lawmaking as well as in administering and applying the law. Thus is produced a greater unity of law with the spirit of the people. Secondly, interpretation of the written law in accordance with justice and equity is achieved through the ethos of the true judge. Lastly, the world of positive law has been progressively penetrated by the principles and prestige of Christian ethics.

"Природне право: Освіта в правовій та соціальній історії та філософії" Генріх Rommen

Сутність права

Можна сказати, з деяким перебільшенням сказати, що епоха індивідуалізму був першим проводити філософії права або права (у суб'єктивному змісті), в той час попередніх років були досить розвиненою філософії права. Це було б особливо виправданим було мислиться як право більш суб'єктивним дозвіл і право вимагати, і закон об'єктивного порядку та основи права та обов'язки. Суум б то бути першим, в той час як норма, через які Суум будуть визначені і гарантовані, прийде пізніше.

Християнське вчення про природне право, однак, не перша постулювати Суум і обличчя, і тільки потім права. Але, як спільнота сприймається одночасно з людиною, тому що це "дано" з останнього, так що норма, яка визначає це одночасно покладено з Суум. Людина постійно розглядатися в порядку, який одночасно дано, чиї фізичні закони, що випливають з характеру істотно порядку, вимагають дотримання. Таким чином, оскільки мислителі не рушили з ізольованих, абстрактного індивіда і не почала питати що слід вважати його невід'ємних прав, але завжди вважав людину як члена порядку встановлені Богом і проявляється в чоловічому сутнісного буття, увагу було приділено більше права, прямо в ціль sense.1 Крім того, той, хто вважає, що закон і мораль не може бути відділений, і, отже, позитивне право і моральний закон пов'язані один з одним, буде особливо здатних оцінити цю точку зору . Закони є, то етичні цілі, ні кінця. Вони не просто захист або охорона раніше даного права. Вони, крім того, позитивні етичні функції прийняття чоловіків краще, більш доброчесними. Але це означає, що позитивне право внутрішньо пов'язаний з об'єктом, який моральний закон має на увазі.

‡ У святого Фоми Аквінського знайдемо спочатку повністю загальної концепції закону. "Закон правило і захід діє, коли людина змушена діяти або утриматися від дії" 2. Це правило або закон повинен, а не сліпий необхідності. Він застосовується у відношенні істоти мають свободу волі в той час як він залишає їх волі без змін. Це не фізичний примус. (Отже, закони, встановлені для руху-Motus, а не об'єктивної-ірраціональної природи, закони природи в сучасному розумінні фрази, закони тільки в неналежній сенсі.) Закон, таким чином, нормою для людських дій, які виходити з вільної волі, і тому дії істота, яка є майстром своєї справи і бездіяльність, на істоту, яку людина. Але вільна воля припускає причини, у відповідності з пріоритетом останніх. Отже, вона відноситься до природи людських дій, які вони так чи інакше визначаються причини і знаходяться у згоді з нею. Таким чином, природа, і, більш явно, раціонального природокористування, яка забезпечує уточнений критерій при переході рішення значення на специфічно людських (морально безкоштовно) дії. Але причина, як практичний розум, далі регулює дії, оскільки він побоюється, що зв'язки і відносини упорядкованих речі між собою і в зв'язку з їх боку, тому що порядок виникає через загальний напрямок до кінця. Знову ж таки, вся дія відбувається заради кінця. Без мети, дія не матиме сенсу, без мети, буде нічого прагнути. Але причина одна можете зрозуміти доцільність дій для досягнення мети, тільки вона може собі засоби і ряд проміжних решт, привести до досягнення кінцевої мети. Ця діяльність розуму, через своє рішення за чи проти запропонованого курсу дій, передує буде, конвертація обговорення та вирішення в дію. Зміст кожної норми, тому, а також все, що в будь-якому випадку нормативний характер, пов'язана з причиною, як сутність і як принцип knowledge.3

З вищевикладеного випливає, що закон "щось, що відносяться до причини." 4 Для поняття закону належить "таїнство розуму", 5 не (як це іноді думки) постанову з причини, хоча законом це занадто. Для закон не говорити, щоб сліпі як такої, а й буде керуватися і повідомив причину.

Людина діє на кінці. Тому кожна дія має безпосередній мети. Очевидно, однак, що негайне припинення, наприклад, лист, підпорядкований як засіб для вищої мети, наприклад, вираження думок. Все більш широке дослідження проливає світло кінцевою метою, до якої підлеглі кінці пов'язані з кінцевою причиною. Їхнє ставлення до кінцевому рахунку, буде те, що є загальним для них усіх. Він відноситься до природи права служити вищої мети, що є кінцевою у відповідному порядку. Мета або кінець творчого елементу в закон і право. Остаточний кінець всіх людських дій і в той же час принцип такі дії Фелісітас, happiness.6 Але універсальність відноситься до цієї мети: це загальне благо всіх, хто прагне до неї. У цьому сенсі закон спрямований на загальне благо в загальному сенсі, з якого вона отримує властивість універсальності. Закон, таким чином, загальна норма про причину, яка спрямовує дії вільної людини в загальне благо, а не приватного або конкретного good.7 Це не може бути обмежена у загальний добробут держави, хоча це його черга програми, але справедливо для кожного вищого спільноти з кінця своєї власної, зокрема, для Церкви і міжнародного співтовариства, але і для сімей і великих родинних груп.