Commonplaces from The Natural Law by Heinrich A. Rommen
Posted on March 15th, 2017
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Last annotated on March 14, 2017
"Our modern dictators," he remarked, "are masters of legality."3 "Hitler," Rommen concluded, "aimed not a revolution, but at a legal grasp of power according to the formal democratic processes."Read more at location 53 • Delete this highlight
"Forgotten is the fact that legal institutions themselves can be made the object of the non-legal power struggle. Who does not know that in a nation the courts or the judges themselves are subject to the power strife, showing itself in the public propaganda of contradictory social ideals?"7Read more at location 65 • Delete this highlight
natural law and natural rights shaped the Founding of the United States and in the 1860s its refounding.Read more at location 116 • Delete this highlight
At the turn of the twentieth century, the educated classes thought of "nature" not according to the classical conception of an ordered cosmos of ends, nor even according to the Enlightenment understanding of fixed physical "laws of nature"; rather, nature was conceived according to one or another evolutionary scheme within which the human mind exercises creative, pragmatic adjustments.Read more at location 118 • Delete this highlight
"legal realism" thus conveyed the notion that a proper account of law is less a matter of explicating legal doctrines than of observing what judges actually do when they interpret and apply law, namely, contribute to the formation of social policy.Read more at location 130 • Delete this highlight
the Great Depression quickly led to centralized state authority that brutally trampled on individual rights in the name of the common good.Read more at location 178 • Delete this highlight
Rommen’s The Natural Law was published in English translation in 1947; Leo Strauss’s National Right and History in 1950; Simon’s Philosophy of Democratic Government, and Maritain’s Man and the State in 1951; and Voegelin’s New Science of Politics in 1952. In these books the problem of the moral foundations of law and politics are treated speculatively, broadly, and, for lack of a better term, classically.Read more at location 185 • Delete this highlight
To some extent, the interests of these émigrés overlapped. They agreed, for example, that the origins of modern totalitarianism are to be found in the Enlightenment; they also agreed that the Romantic reaction worsened rather than corrected the Enlightenment’s consequences. The contrast between the philosophy of the ancients and moderns became a trademark of the Straussian school, but virtually all of the émigré thinkers, including Rommen in The Natural Law, drew some version of that distinction. Yet it would be a mistake to suppose that their common interests and overlapping research programs amounted to a common doctrine of natural law. Leo Strauss, Eric Voegelin, and Catholics like Rommen, had distinctively different approaches to the subject.Read more at location 189 • Delete this highlight
The word scholasticism derives from the dialectical method of the medieval schools, in which the dicta of authorities (auctoritates) in matters of theology, law, and philosophy were submitted to a very complex and open-ended form of systematization. Beginning with the compilation and classification of authoritative dicta, the data were to be interrogated, distinguished, and disputed.Read more at location 205 • Delete this highlight
Thomas set out not only to harmonize nearly a millennium of theological opinions but also to treat the "new" learning of the recently recovered pagan philosophers, especially Aristotle.Read more at location 219 • Delete this highlight
the Dominican theologian Francisco Vitoria argued successfully for the natural rights of native peoples in the Indies and developed exacting criteria for the use of war by nations. His lectures, called the Relectiones (1527–40), influenced Hugo Grotius and the emerging modern jurisprudence of international law. Another Spanish Dominican, Bartolomé De Las Casas, whose Historia de las Indias (1561) was translated into several languages, worked and wrote tirelessly for the natural rights of Indians to political liberty and property. Consequently, the transition from medieval doctrines of natural law to modern conceptions of natural rights was achieved in no small part by Spanish scholastics.23 The best known of the late scholastics was the Spaniard Francisco Suérez (1548–1617), whose De Legibus ac Deo Legislatore (1612) was the most ambitious effort in the modern period to construct a Thomistic legal theory.Read more at location 241 • Delete this highlight
during the Second World War the Carnegie Endowment for International Peace published a Latin-English edition of Suárez’s De LegibusRead more at location 254 • Delete this highlight
Rommen and his fellow Catholic thinkers were the products of a new wave of scholasticism that can be traced to Pope Leo XIII’s encyclical Aeterni Patris (1878). Leo called for a return to the primary sources of scholastic philosophy, especially to Thomas Aquinas. Whereas "late scholasticism" was bred primarily in Roman and Spanish seminaries, the "neo-Thomism" prompted by the Leonine reform was led by lay scholars, many of whom taught in secular universities. Neo-Thomism was marked by two main traits. The first was scholarly attention to original texts, which in turn led to fresh interpretations of the premodern natural law traditions. The second, and somewhat opposite tendency, was a lively interest in making the old traditions relevant to contemporary political and legal problems. Indeed, it was the combination of the two that made neo-Thomism the most creative period of scholasticism, which flourished in the absence of anything resembling the medieval schools. Papal encyclical letters became another significant transmitter of the scholastic tradition by setting forth in brief form the principles that ought to apply to controverted issues of social, political, and economic policy.Read more at location 256 • Delete this highlight
metaphysical conservatives and partisans of constitutional democracy.Read more at location 286 • Delete this highlight
Answers to the question of how law binds free agents gravitate toward one of two poles, which Rommen characterizes as lex-ratio versus lex-voluntas.27 In the first part of the book he investigates the intellectual history of the question; in the second part, he investigates the philosophical issues. Here, it will suffice to give a brief summary of Rommen’s position.Read more at location 295 • Delete this highlight
The doctrine of voluntarism holds that the will legislates and reason executes.Read more at location 322 • Delete this highlight
In 1945 appeared his The State in Catholic Thought; a Treatise in Political Philosophy (St. Louis: B. Herder Book Co.).Read more at location 434 • Delete this highlight
wonder,1 according to Aristotle, lies at the beginning of philosophy,Read more at location 514 • Delete this highlight
In the early periods of all peoples the mores and laws, undifferentiated from the norms of religion, were looked upon as being exclusively of divine origin.Read more at location 516 • Delete this highlight
Moreover, even the later period, when the Romans had already 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.Read more at location 521 • Delete this highlight
This theological cast of all primitive law has two characteristics. Such law is essentially unchangeable through human ordinances, and it has everywhere the same force within the same cultural environment.Read more at location 524 • Delete this highlight
The idea of a natural law can emerge only when men come to perceive that not all law is unalterable and unchanging divine law.Read more at location 525 • Delete this highlight
How can laws bind the conscience of an individual? Wherein lies, properly speaking, the ethical foundation of the coercive power of the state’s legal and moral order?Read more at location 531 • Delete this highlight
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, behind the popular images of tribal deities exists an eternal, all-wise Lawgiver who has the power to bind and to loose.3Read more at location 534 • Delete this highlight
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 individualistic 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 conservative. It is further significant that the notion of God as supreme Lawgiver is intimately connected with the latter conception.Read more at location 541 • Delete this highlight
first Sophists and in Heraclitus, the great forerunner of Plato. Read more at location 548
Note: Ask Michael to distinguish these two conceptions of natural law. Edit
Natural occurrences are ruled by a reason that establishes order. Man’s nature as well as his ethical goal consists, then, in the subordination or conformity of individual and social life to the general law of the universe.Read more at location 551 • Delete this highlight
"Wisdom is the foremost 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."Read more at location 554 • Delete this highlight
there flashed upon Heraclitus the idea of an eternal law of nature that corresponds to man’s reason as sharing in the eternal logos.Read more at location 560 • Delete this highlight
With Heraclitus, the "Obscure Philosopher," the thinker who speaks in obscure symbols, the idea of the natural law for the first time emerged as a natural, unchangeable law from which all human laws draw their force.Read more at location 563 • Delete this highlight
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.Read more at location 582 • Delete this highlight
To 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 interests 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.Read more at location 587 • Delete this highlight
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. To Hippias’ way of thinking, all men are by nature relatives and fellow citizens, even if they are not such in the eyes of the law. Therewith the distinction between Greeks and barbarians, 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 striving to justify it by means of his theory that certain men are slaves by nature.Read more at location 595 • Delete this highlight
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.Read more at location 602 • Delete this highlight
The first idea was that the existing laws serve class interests and are artificial constructions.Read more at location 605 • Delete this highlight
Only what is naturally moral and naturally right can be properly called moral and right.Read more at location 605 • Delete this highlight
Next came the idea of the natural-law freedom and equality of all human beingsRead more at location 606 • Delete this highlight
According to the third idea, the state, or polis, is nonessential: it owes its origin to a human decision, i.e., to a free contract,Read more at location 608 • Delete this highlight
The political organization of man must therefore have been preceded by a state of nature (portrayed optimistically or pessimistically),Read more at location 609 • Delete this highlight
the Epicureans, who were the first legal positivists.Read more at location 613 • Delete this highlight
Epicurus, whose sensistic epistemology left no room for metaphysics,Read more at location 615 • Delete this highlight
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.Read more at location 615 • Delete this highlight
The parallelism between the Sophist and Epicurean doctrine on the one hand and, on the other, the natural-law schools of modern times is quite unmistakable.Read more at location 622 • Delete this highlight
The starting point of the Sophists was a criticism of the nomoi of the Athenian democracy.Read more at location 625 • Delete this highlight
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.Read more at location 629 • Delete this highlight
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.Read more at location 636 • Delete this highlight
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.Read more at location 640 • Delete this highlight
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.Read more at location 650 • Delete this highlight
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.Read more at location 653 • Delete this highlight
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.Read more at location 655 • Delete this highlight
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.Read more at location 663 • Delete this highlight
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.Read more at location 677 • Delete this highlight
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.Read more at location 686 • Delete this highlight
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.Read more at location 690 • Delete this highlight
Aristotle passed for centuries as the "father of natural law."Read more at location 697 • Delete this highlight
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 foundationRead more at location 699 • Delete this highlight
pure being or the pure essential form is likewise the goal of becoming for the man who is to be fashioned by education into a good citizen.Read more at location 709 • Delete this highlight
The supreme norm of morality is accordingly this: Realize your essential form, your nature.Read more at location 712 • Delete this highlight
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.Read more at location 714 • Delete this highlight
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.Read more at location 724 • Delete this highlight
Aristotle already viewed the judge’s function of filling up gaps in the law as an attempt to apply the natural law—ifRead more at location 729 • Delete this highlight
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 codifications of civil law undertaken in the nineteenth and twentieth centuries (e.g., the Austrian and Swiss Civil Codes).Read more at location 733 • Delete this highlight
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 Aristotle 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.Read more at location 739 • Delete this highlight
for Aristotle as for Plato the polis or city-state was the great pedagogue, against which, strictly speaking, no natural, subjective 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 political standpoint conservative, but it was based on metaphysics. With the effective discovery, through Christianity, of human personality 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.Read more at location 743 • Delete this highlight
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. All 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 opposite. Likewise, since we cannot perceive the essence or nature of things and of man, a natural law is impossible.Read more at location 754 • Delete this highlight
Positivism in ethics and law reached its climax with Carneades, again in connection with the repudiation of objective knowledge of reality and essences and with the denial of metaphysics.Read more at location 767 • Delete this highlight
Stoic thought was handed down to the medieval world mainly in his writings.Read more at location 772 • Delete this highlight
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.Read more at location 772 • Delete this highlight
The Stoics were individualists but, unlike the Sophists, they were not militantly opposed to the polis; indeed, the city-state no longer existed, only the world empire.Read more at location 779 • Delete this highlight
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.Read more at location 782 • Delete this highlight
Virtue consists in the positive determination of conduct through will power in accordance 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 throughout 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.Read more at location 789 • Delete this highlight
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 theRead more at location 793 • Delete this highlight
decree of a multitude, but upon nature, i.e., upon innate ideas (non scripta sed nata lex).Read more at location 794 • Delete this highlight
"All that you behold, that which comprises both god and man, is one—we are the parts of one great body. Nature produced us related 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 natural 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."15Read more at location 821 • Delete this highlight
lex aeterna, recta ratio, lex naturalis, ius naturale,Read more at location 837 • Delete this highlight
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,Read more at location 840 • Delete this highlight
Thus Stoic philosophy may with considerable justice be called the mother of Roman jurisprudence. The latter, to keep up the 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.Read more at location 848 • Delete this highlight
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 conformable 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.Read more at location 853 • Delete this highlight
the unwritten 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, appeared 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 governs in it.Read more at location 881 • Delete this highlight
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." To the jurists, indeed, jurisprudence was "a knowledge of things divine and human, 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 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 natural 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.Read more at location 893 • Delete this highlight
It remains an eloquent proof of the eternal truth of the doctrine 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 perennis21 has remained the permanent home of the natural law. Scholastic philosophy has been the place of 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 metaphysics, queen of the sciences."22Read more at location 906 • Delete this highlight
The ancients knew only a politico-legal morality. The city-state, in their view, is the ultimate and absolutely 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 salvation. For them the polis and its divine worship remained the 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 mankind, which of course merely raised the question of its own meaning. Thus the ancients failed to arrive at the distinction between natural law and natural moral law.Read more at location 926 • Delete this highlight
Note: Huh? Edit
The positivism of the Skeptics, of Epicurus, and of Carneades stood in opposition to the natural lawRead more at location 934 • Delete this highlight
the continually recurring definitions of law, which have stirred up and divided philosophico-legal thinking down to the present day, had already been formulated: law is will, law is reason; law is truth, law is authority.Read more at location 935 • Delete this highlight
Christianity, however, contains three ideas of decisive importance 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.Read more at location 951 • Delete this highlight
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.Read more at location 1019 • Delete this highlight
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.Read more at location 1036 • Delete this highlight
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.4Read more at location 1053 • Delete this highlight
Note: Even today? Edit
Alexander of Hales, falling back upon St. Augustine’s teaching, hit upon a beautiful figure: the eternal law is the seal, and the natural moral law is its impression in the rational nature of man, which in turn is an image of God.Read more at location 1071 • Delete this highlight
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 subsequent to original sin.Read more at location 1081 • Delete this highlight
But this theory had to be completely abandoned. For this type of argument was unable to furnish what it was intended to provide, 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. Albert 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 were unable to prevent this outcome. For an adequate solution of the problem the genius of a Thomas Aquinas was needed.Read more at location 1091 • Delete this highlight
Its basic norm may be simply stated: Act in conformity with your rational nature. For rational nature, known through self-consciousness or reflex thinking, constitutes the ontological criterion of man’s oughtness.Read more at location 1123 • Delete this highlight
The highest and basic norm of the natural law in the narrow sense, then, may be stated thus: Justice is to be done.Read more at location 1141 • Delete this highlight
The essential nature is thus the measure. What corresponds to it is good; what is contrary to it is bad.Read more at location 1146 • Delete this highlight
"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."Read more at location 1148 • Delete this highlight
both in God and in man the intellect, not the will, holds the primacy.Read more at location 1155 • Delete this highlight
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."13Read more at location 1165 • Delete this highlight
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.Read more at location 1206 • Delete this highlight
(though not destroyed or depraved) by original sin,20 must be—and in conformity with its inner goal also ought to be—constrained to good and restrained from evil. Self-education or addiction to goodness does not pertain to man as such. Consequently men stand in need of a clearly prescribed and adequately sanctioned system of norms, which emanate from an authority and power that in their inmost reality serve justice, and in the individual serve to perfect the essential nature of man. They are therefore ethical. St. Thomas is no romantic optimist like Rousseau. Furthermore, it is precisely the object of the positive law to render the citizen virtuous. It is not merely a question of maintaining 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 reason positive norms, determinate coercive measures, and a more exact definition of the circumstances in which the general principle shall be applied, are imperative.Read more at location 1210 • Delete this highlight
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.Read more at location 1221 • Delete this highlight
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 immutability 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.Read more at location 1234 • Delete this highlight
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 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).Read more at location 1254 • Delete this highlight
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 ministering torch-bearer of the will, which is the master.Read more at location 1265 • Delete this highlight
An action is not good because of its suitableness to the essential nature 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 absolute 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 element of immorality, or what is unjust, any inner element of injustice; it is an external offense against the will of God.Read more at location 1273 • Delete this highlight
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 naturalis, 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 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.25Read more at location 1284 • Delete this highlight
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 important scholars, the Spaniards Vittoria (d. 1546), Suarez (1548–1617) and Vasquez (d. 1604), and the Italian St. Robert Bellarmine (1542–1621). The reasons for this more intensive preoccupation with the problems of the natural moral law and philosophy of law were many. To begin with the doctrinal ones,Read more at location 1293 • Delete this highlight
Pomponazzi (1462–1530), 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 positive act of God’s absolute will. Machiavelli (1469–1527) had secularized 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.Read more at location 1302 • Delete this highlight
political transformation from feudal society to a world of states ruled by absolute sovereigns.Read more at location 1310 • Delete this highlight
So competent a scholar as Joseph Kohler 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 greatness, not to Hugo Grotius."Read more at location 1315 • Delete this highlight
The natural law is grounded in essence and reason, not in mere absolute will, in God’s absolute power. God’s omnipotence is subordinated, humanly speaking of course, to the decrees of His wisdom.Read more at location 1318 • Delete this highlight
Positivism in law and ethics corresponds to agnosticism in epistemology.Read more at location 1328 • Delete this highlight
positivism. For the Late Scholastics the law belongs more to the reason than to the will.Read more at location 1329 • Delete this highlight
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.Read more at location 1337 • Delete this highlight
Vasquez, the Spanish Augustine, had regarded rational nature, irrespective of the positive will of God, as the primary ground of the obligation to obey the natural law.Read more at location 1343 • Delete this highlight
To the rationalistic natural law corresponded Deism in theology.Read more at location 1353 • Delete this highlight
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.Read more at location 1376 • Delete this highlight
The son who has to be compelled by court action to support his impoverished, incapacitated father fulfills indeed a legal duty, and the state rests satisfied. No one will contend, however, that through this fulfillment by court order he has complied with the moral duty of pietas.Read more at location 1409 • Delete this highlight
"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.Read more at location 6940 • Delete this highlight
