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The Natural Law: a Study in Legal and Social History and Philosophy [1936]

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The Natural Law: a Study in Legal and Social History and Philosophy [1936] The Online Library of Liberty A Project Of Liberty Fund, Inc. Heinrich Rommen, The Natural Law: A Study in Legal and Social History and Philosophy [1936] The Online Library Of Liberty This E-Book (PDF format) is published by Liberty Fund, Inc., a private, non-profit, educational foundation established in 1960 to encourage study of the ideal of a society of free and responsible individuals. 2010 was the 50th anniversary year of the founding of Liberty Fund. It is part of the Online Library of Liberty web site http://oll.libertyfund.org, which was established in 2004 in order to further the educational goals of Liberty Fund, Inc. To find out more about the author or title, to use the site's powerful search engine, to see other titles in other formats (HTML, facsimile PDF), or to make use of the hundreds of essays, educational aids, and study guides, please visit the OLL web site. This title is also part of the Portable Library of Liberty DVD which contains over 1,000 books and quotes about liberty and power, and is available free of charge upon request. The cuneiform inscription that appears in the logo and serves as a design element in all Liberty Fund books and web sites is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 B.C. in the Sumerian city-state of Lagash, in present day Iraq. To find out more about Liberty Fund, Inc., or the Online Library of Liberty Project, please contact the Director at [email protected]. LIBERTY FUND, INC. 8335 Allison Pointe Trail, Suite 300 Indianapolis, Indiana 46250-1684 Online Library of Liberty: The Natural Law: A Study in Legal and Social History and Philosophy Edition Used: The Natural Law: A Study in Legal and Social History and Philosophy, trans. Thomas R. Hanley. Introduction and Bibliography by Russell Hittinger (Indianapolis: Liberty Fund 1998). Author: Heinrich Rommen Translator: Thomas R. Hanley Introduction: Russell Hittinger About This Title: Originally published in German in 1936, The Natural Law is the first work to clarify the differences between traditional natural law as represented in the writings of Cicero, Aquinas, and Hooker and the revolutionary doctrines of natural rights espoused by Hobbes, Locke, and Rousseau. Beginning with the legacies of Greek and Roman life and thought, Rommen traces the natural law tradition to its displacement by legal positivism and concludes with what the author calls “the reappearance” of natural law thought in more recent times. In seven chapters each Rommen explores “The History of the Idea of Natural Law” and “The Philosophy and Content of the PLL v6.0 (generated September, 2011) 2 http://oll.libertyfund.org/title/676 Online Library of Liberty: The Natural Law: A Study in Legal and Social History and Philosophy Natural Law.” In his introduction, Russell Hittinger places Rommen’s work in the context of contemporary debate on the relevance of natural law to philosophical inquiry and constitutional interpretation. PLL v6.0 (generated September, 2011) 3 http://oll.libertyfund.org/title/676 Online Library of Liberty: The Natural Law: A Study in Legal and Social History and Philosophy About Liberty Fund: Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals. Copyright Information: The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc. Fair Use Statement: This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit. PLL v6.0 (generated September, 2011) 4 http://oll.libertyfund.org/title/676 Online Library of Liberty: The Natural Law: A Study in Legal and Social History and Philosophy Table Of Contents Introduction Translator’s Preface Part One: History of the Idea of Natural Law Chapter I: The Legacy of Greece and Rome Chapter II: The Natural Law In the Age of Scholasticism Chapter III: The Turning Point: Hugo Grotius Chapter IV: The Natural Law In the Age of Individualism and Rationalism Chapter V: The Turning Away From Natural Law Chapter VI: The Victory of Positivism Chapter VII: The Reappearance of Natural Law Part Two: Philosophy and Content of the Natural Law Chapter VIII: Being and Oughtness Chapter IX: Intellect and Will Chapter X: The Structure of the Sciences Chapter XI: The Nature of Law Chapter XII: Morality and Law Chapter XIII: The Content of the Natural Law Chapter XIV: Natural Law and Positive Law Chapter XV: Conclusion Select Bibliography General Studies Ancient Medieval and Scholastic Enlightenment Anglo-american Contemporary Debates HEINRICH A. ROMMEN nihil obstat Matthaeus Britt, O.S.B. imprimi potest Raphael Heider, O.S.B. Abbas S. Martini de Lacey PLL v6.0 (generated September, 2011) 5 http://oll.libertyfund.org/title/676 Online Library of Liberty: The Natural Law: A Study in Legal and Social History and Philosophy nihil obstat Ioannes McCorkle, S.S. Censor Librorum imprimatur Geraldus Shaughnessy, S.M. Episcopus Seattlensis Die 15 Ianuarii, 1946 PLL v6.0 (generated September, 2011) 6 http://oll.libertyfund.org/title/676 Online Library of Liberty: The Natural Law: A Study in Legal and Social History and Philosophy [Back to Table of Contents] Introduction Heinrich Rommen is known in the United States primarily as the author of two widely read books on political philosophy, The State in Catholic Thought: A Treatise in Political Philosophy (1945) and The Natural Law (1947), and as a professor at Georgetown University (1953–67). Yet, before 1938, when he fled the Third Reich for the United States, Rommen was neither a scholar nor a university professor, but a professional lawyer—trained in civil and canon law—who had devoted considerable energies to Catholic social action during the dissolution of the Weimar Republic and the rise of the Nazi Party. The two books that secured his academic reputation in the United States were written in Germany in the midst of his legal and political work, for which he was imprisoned by the Nazis.1 Although The Natural Law displays erudition in a number of academic specialties (law, philosophy, history, theology), the reader will appreciate that the book was written by a lawyer in response to a political and legal crisis.2 As a practicing lawyer, Rommen watched with alarm as the Nazi party deftly used German legislative, administrative, and judicial institutions to impose totalitarian rule. “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.” Every generation, it is said, finds a new reason for the study of natural law. For Rommen and many others of his generation, totalitarianism provided that occasion.4 As he put it in his book on the state, “When one of the relativist theories is made the basis of a totalitarian state, man is stirred to free himself from the pessimistic resignation that characterizes these relativist theories and to return to his principles.”5 Rommen’s writings were prompted by the spectacle of German legal professionals, who, while trained in the technicalities of positive law, were at a loss in responding to what he called “Adolf Légalité.”6 What caused this loss of nerve, if not loss of moral perspective? Rommen points to the illusion that legal institutions are a sufficient bulwark against government by raw power—as though a system of positive law takes care of itself, requiring only the superintendence of certified professionals. “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?”7 The reader will find that Rommen is relentlessly critical of legal positivism. He distinguishes between two different kinds of positivism.8 The first, he calls world view positivism. A world view positivist holds that human law is but a projection of force—proximately, legal force is the command of a sovereign; ultimately, however, the sovereign’s decree replicates the force(s) of nature, history, or class. Whereas the world view positivist makes metaphysical, scientific, or ideological claims about law, the second kind of positivism is methodological, and its adherents are committed to PLL v6.0 (generated September, 2011) 7 http://oll.libertyfund.org/title/676 Online Library of Liberty: The Natural Law: A Study in Legal and Social History and Philosophy the seemingly more modest project of studying and describing the law just as it is, without recourse to metaphysical or even moral analysis. It is important to note that Rommen is not entirely critical of methodological positivism. He allows that so-called analytical jurisprudence can be subtle and refined.9 After all, lawyers should study law as it is—in the statute books, judicial decrees, and policies of the state. Yet, by consigning the moral predicates of law (good, bad, just, unjust) to a realm of ethics that is separated, rather than merely distinguished, from jurisprudence of the positive laws, the methodic positivists can become world view positivists by default. In Germany, their “tired agnosticism” with respect to the moral bases and ends of positive law left the German legal profession intellectually defenseless in the face of National Socialism.10 In The Natural Law, Rommen traces the historical and philosophical roots of this “tired agnosticism.” He wants to show that the disrepair of constitutional democracy is the result of skepticism and agnosticism, which themselves are the cultural effects of disordered philosophy.
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