He recognized that law, while it must be stable, must nevertheless constantly change. He thought of law as a product of the civilization of a people in the past and of attempts to adjust the results of that past civilization to the civilization of the present. The adjustment must be made with reference to recognition of a continually changing civilization. The traditional legal materials must be shaped so as to further rather than retard developing culture. His most important contribution to jurisprudence is his theory of the jural postulates of the civilization of the time and place. He considers it a task of the jurist to find and formulate the principles of right assumed in or expressed by a given civilization. These postulates may serve as a critique of legal precepts. But even more received ideals may be tried with reference to them and thus clear outline may be given to the ideal of the legal order which is so large an element in the development and application of legal precepts.92
More recently there has been a tendency to merge the formerly distinct types of social-philosophical jurisprudence in what may be called a neo-idealism, which seeks to understand, organize, and criticize the ideal element in law and, in particular, to transcend nineteenth-century individualism and nineteenth-century orthodox socialism by a conception which shall neither measure community values and civilization values in terms of personality values nor personality values and civilization values in terms of community values, but shall conceive of civilization as the end toward which both a maximum of free individual self-assertion and an efficient social organization are but means. Here belongs Gustav Radbruch (1878–1950),93 whom I should put first among contemporary philosophers of law. He points out that justice, the ideal relation among men, morals, the highest development of individual character, and security, each demands the others and yet each if carried to its full logical development negates the others. This must be recognized and the three must be kept in mind in a view of the whole. Of three theories of the binding force of law, (1) that law has binding force only when commanded by a force imposing itself on all other forces, (2) that its obligatory force is based on consent, and (3) that it may be deduced directly from justice and owes its binding force thereto, he holds that no one of them by itself can give a satisfactory answer. He points out series of legal precepts dictated preponderantly by each of these principles. But there is only a preponderant dictation. There is no complete dictation by any one of them.
In France the revival of philosophy at the beginning of the present century led to what has been called a revival of natural law—not, however, a revival of the law-of-nature school. In this revival there were two outstanding leaders: François Gény (1861–1944)94 and Léon Duguit (1859–1928);95 the one writing from the standpoint of a neo-scholastic, the other from the standpoint of a positivist-sociological, natural law.
Gény in his philosophical work (Science et technique) subjects social life, that is, the life of the individual man as a moral entity in society, as a moral phenomenon, to the scrutiny of reason in order to discover principles which may be used to establish norms, i.e., patterns or models, for lawmaking, law finding, and the application of law.96 One might say that in Stammler’s phrase they are to give us the social ideal or in Kohler’s the jural postulates of civilization except that Stammler sought the social ideals of the epoch and Kohler the postulates of the civilization of the time and place. As a Catholic neo-scholastic jurist Gény had faith he could do more. Scholasticism was a method of formal logical development of authoritative texts. It postulated twofold truth: Revealed truth, that is, revealed in the Scriptures as interpreted in the writings of the fathers, and discovered truth, that is, truth discovered by reason, scrutinizing the universe. In the subjects of the social sciences this means scrutinizing human life. But this life is a life in society. Hence Gény insists on society as a prime factor to be scrutinized in setting up any theory of values. Thomas Aquinas sought the ‘ought’ which reason addresses to a reasonable creature. He went on the basis of the individual man as a moral entity. Gény goes on social life as a moral phenomenon—something given us as a fundamental truth which may be developed logically into its consequences. On this revived scholastic basis he calls for recognition of the element in a body of law which consists in traditional views as to the end of law and traditional pictures of the legal and social order and seeks to give us a firmer grasp of them. In his third volume Gény treats of the technique of positive law. He holds that free scientific research yields starting points for juristic and judicial construction. These starting points (donnés) are fundamental, but a technique of construction is required to build on them.97 The finding of a donné is a matter of intelligence. The technique is a matter of will. It is something done by choice, “guided only by the predetermined ends of the legal order.”98 This recognition of the process of finding starting points for legal reasoning by choice from among competing starting points by a technique in the light of received ideals is a contribution of the first importance. It brings out the most effective role of the ideal element of the law in the administration of justice. It may be added that the present day tendency of juristic thought in France seems to be to move over from the dominant positivism of the last of the nineteenth century and first decades of the present century to or toward neo-scholasticism.99
Duguit’s system is called a system of natural law because he conceives of everything in law as deriving its validity from and to be judged by a fundamental rule or principle of right-and-law. Philosophically he was a thoroughgoing positivist. Following Comte, he sought to arrive at his fundamental principle by observation and to verify it by further observation. But Gény justly observes that his règle de droit is supposed, as Duguit in many places vehemently insists, to be derived by observation of a verified fact of social interdependence, whereas in truth it comes in by an unconscious metaphysics and is given a content of the social interdependence from which it purports to be derived.100
As Duguit sees it, observation of the phenomena shows that there are no such things as rights, much less natural rights, or sovereign or subjects.101 Also observation shows there is no such thing as the distinction between public law and private law. All such ideas must be given up. We must start anew from the observed and verified fact of social interdependence through similarity of needs and diversity of functions, or, as it has become, in the industrial society of today, similarity of interest and division of labor. From this comes the rule or principle of right-and-law binding all members of a society to act so as to further this social interdependence and not to do anything that impairs it.102 As one would expect in a system of natural law, a legislatively enacted precept, although it may conform to the constitution, is not binding unless it tends to further (rather than impair or hinder) social interdependence. Hence he suggests that there should be a tribunal composed of representatives of all social classes to “judge of the legality of the law,” i.e., its natural legality, not whether it conforms to the constitution but whether it conforms to the natural-law requirement of promoting social interdependence. Observation of American experience of judical determination whether social legislation conformed to a requirement of reasonableness, or was contrary to “common right and reason” does not give one much faith in the suggestion.
Duguit’s ideal picture of the social and legal order is an idealization of a modern industrial city and the country dependent upon it in which everything turns upon efficient production in the greatest possible quantity.
It should be added that there has been a steady growth of natural-law thinking in one form or another in many countries since 1920.103
I have suggested elsewhere that we should distinguish what I have called natural natural law from what would then be called positive natural law.104 According to this distinction natural natural law is ideal law simply as ideal. It is a body of ideal precepts derived independent of the actual positive law by some method which is regarded as guaranteeing universal moral validity and applicability. Positive natural law, which is what has usually gone by the name of natural law, is an idealized version of the positive law in which the jurist was brought up, in which, postulating that it is declaratory of natural law, and that it derives its force from the ideal precepts it declares, he sets out the positively established precepts, or some of them in universal form. These idealized precepts of a positive
