most rudimentary form of natural law thinking arises in connection with the question of whether the ius is the mere artifice of positive law. Does this life, property, dignity, and status belong to me (him or them) exclusively by virtue of a contract or decree of the state or, for that matter, by the assertion of an individual?35
Both natural lawyers and positivists agree that some terms and relations of justice arise by the artifice of legal contracts and positive decrees. There is no natural law requiring motorists to drive on the right side of the road (legal justice), or for money lent to be repaid at a certain rate of interest (commutative justice), or for providing college education benefits to veterans (distributive justice). Undoubtedly, in each of these examples the issue of what is “mine and thine,” and of who owes what to whom, is determined by customs, contracts, or statutes. In this respect, Rommen calls attention to what every lawyer knows: namely, that much of the law consists of norms that are quite arbitrary—arbitrary, that is, not in the pejorative sense of being irrational or merely willful, but rather in the sense that the material norm is not in itself an issue of morality. “Many police ordinances (e.g., traffic regulations), which serve merely a subordinate purpose of means to an end, exhibit no materially moral content. The same is true of the technical rules governing legal procedure or the organization of law courts. These norms bear such a technical, formal, and utilitarian character that the qualifications of moral or immoral cannot be applied to them.”36 Because these laws have no material moral content in themselves, they can bind conduct only because there exists a prior scheme of obligation. One might presume that the traffic ordinance is related to an antecedent obligation of legal justice to act in accord with the common good; so, no one naturally or even morally owes the community the act of stopping at a red light until that ordinance is seen in the context of a more fundamental obligation.
And this brings us back to the deeper and more interesting question: Are laws, all the way down, as it were, merely a human posit, none having material moral content until conjoined with a declaration of the will? Whether that will be the little will of an individual, the communal will of custom, or the sovereign will of the state makes no difference to the central philosophical question. The train of causality in law will have to begin and end in an act of force. The terms of justice must be arbitrarily constructed and laid as a template over a social world that bears no objective terms of relations of justice. Indeed, if law is but a posit of the will, then the law can make it “right” to give death to an innocent person intentionally, or to make the perpetrator of violence the innocent person; to exact penalties with no finding of guilt or fault; to treat adults as children, persons as chattel; and to declare property ownership by individuals a crime. To be sure, most positivists would declaim the aforementioned acts. They might claim that if the law tries to reverse everyone’s ordinary expectations of justice, disorder would quickly ensue. Further, the positivist might agree that there are some limits—of a physical, psychological, or even social nature—that influence the making of positive law and set parameters for any efficient posit of the will.
For the natural law tradition, what stands prior to the declaration of the will is not a set of contingent facts that a lawgiver would be prudent to bear in mind; rather, positive law presupposes obligations that arise independent of any decree or application of force by a human legislator. The social and legal world does not consist of mere facts organized and moved around by acts of force, but of principles of obligation, discovered by experience and reason. As Rommen points out, natural law is opposed to positivism, not to the positive law.37 The art of positive law is a creative extension of the order of justice discovered by the intellect. The positive law neither creates all obligations from scratch nor deduces every new term of obligation from the natural law. Thus Rommen insists that the positive law cannot be well understood either by positivism or by rationalism. The former, he explains, requires human law to arbitrarily construct all norms of justice; the latter leaves to human law no creativity or novelty.38 Rommen writes:
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 and vital forces and the functional changes of communities.39
Here, our brief review of the philosophical question makes the problem look deceptively simple. In The Natural Law Rommen is at pains to show that although the question is relatively simple the vindication of a jurisprudence of natural law is quite complicated. This is because the vindication depends upon an array of principles about the human person, the relation between intellect and will, and the nature of society. In a relatively healthy culture, these principles are given expression through social, political, and legal institutions as well as through the judgments of common sense. When these institutions are challenged, however, it becomes necessary once again to inquire into first things. It is fitting, then, to conclude this introduction just where we began. The Natural Law is not the work of an academician but is the effort of a German lawyer to understand the moral and social bases of the positive law and to exert philosophical intelligence in the face of Adolf Légalité. The problem of the German legal profession in the 1930s rendered the book timely, but the philosophical inquiry leads the reader to the perennial questions.
| RUSSELL HITTINGERUniversity of Tulsa |
The present volume is a translation of Die ewige Wiederkehr des Naturrechts (Leipzig: Verlag Jakob Hegner, 1936). The English version, however, amounts to a revised and enlarged edition of the original work. The author has, at my suggestion, added many new sections; and he has further made, or consented to, several alterations in the text itself. Thus the worth and importance of an already valuable study of the history and philosophical foundations of the idea and doctrine of natural law have been considerably enhanced, especially for readers of the English-speaking world.
The studies and activities of the author peculiarly fitted him to interest himself in the striking phenomenon of the perpetual recurrence of the natural-law idea. Having completed his studies and obtained degrees in political economy as well as in civil and canon law at the universities of Muenster and Bonn, he dedicated his talents and abilities to the cause of Catholic social action in Germany during the last fateful years of the Weimar Republic. From 1929 to 1933 he was head of the Social Action Department, Central Office of the Volks-Verein at M.-Gladbach. More or less simultaneously, too, he served as chairman, vice-chairman, director, and executive vice-president of various other national and local German Catholic organizations and institutes with educational, social, and economic aims. In one of these he was closely associated with such well-known German Catholic students of society as Oswald von Nell-Breuning, S.J., G. Gundlach, S.J., P. Tischleder, Goetz Briefs, Franz Mueller, and the late Theodore Brauer.
With the advent to power of Hitler and his Nazi party, Dr. Rommen, who had distinguished himself in the struggle against the Weltanschauung and concrete aims of growing Nazism, was closely watched, carefully investigated, and finally arrested. His thorough knowledge of law, however, besides the care he had taken to destroy evidence which might prove incriminating in Nazi eyes, contributed at length, after a month of confinement, to procuring his release. With his former sphere of activity now closed to him, he lived henceforth under continual police surveillance. For some years he worked as legal advisor of a Berlin corporation. It was during this period of stress and personal insecurity that, in his leisure time, he wrote and published the German original of the present volume, intended as a protest against the widespread abuse of the idea of natural law in contemporary legal and political philosophy generally, but in particular in those circles most influenced by the Nazi Weltanschauung. It is to this circumstance that the author attributes what he modestly refers
